Termination of charges against Nairobi Governor Evans Kidero and Women Representative Rachel Shebesh is the preserve of the Director of Public Prosecutions in spite of a deal struck by the leaders, a court has said.
Justice David Majanja on Wednesday ruled that an out-of-court agreement between the two “cannot bind the DPP unless he consents” as he was not a party to the deal.
Dr Kidero and Ms Shebesh have withdrawn complaints they lodged against each other at the Central and Parliament police stations respectively, following an altercation at City Hall last year.
They both obtained stay orders challenging their impending prosecution.
Justice Majanja said the reconciliation agreement only amounted to a “withdrawal” of their respective petitions against the DPP, Inspector General of Police and Attorney-General but was not a “settlement” of the cases.
He said unless the DPP consented to the truce, he was still at liberty to pursue his case against the leaders.
Lawyers Cecil Miller and Tom Ojienda for Dr Kidero and Ms Shebesh, respectively, told the court their clients had obeyed the DPP’s earlier ultimatum that they go to the police stations they lodged their complaints at and they had “unreservedly withdrawn the same.”
They asked the court to consider the petitions against their prosecution as “withdrawn” and mark the cases “settled”.
But prosecuting counsel Kioko Kamula interjected, saying the DPP was not party to the negotiations and to say the matter “was settled would be totally erroneous.”
“The DPP has to be appraised on the status of this matter officially through the Director of Criminal Investigations...we do not oppose their agreement, but to say that it is settled is wrong,” Mr Kamula said.
The DPP and AG also wanted the court to compel the two to pay the costs of litigation on the grounds that public funds were spent on court attendances and defending the petitions, but the request was dismissed, with the judge saying the petitions were withdrawn before full engagement in court.
Justice Majanja reiterated that the case amounted to a withdrawal of petitions against the DPP, and not a settlement. He said the DPP, being an independent prosecutor, was at liberty to either drop or pursue charges against the two.
He said he was aware that the complaints had been withdrawn at the police stations but the DPP still had the final say as an independent prosecutor.