The High Court in Kakamega has quashed a magistrate’s ruling that allowed a private prosecution against Sylvia Atamba, declaring that the trial court had overstepped legal boundaries and misapplied the law.
The court on Wednesday upheld the ODPP’s diversion decision, ruling that reopening the case would amount to an abuse of court process and violate protections against double jeopardy.
In a judgment delivered on December 1, 2025, the High Court allowed the appeal filed jointly by the ODPP and Atamba, finding that the magistrate had overstepped legal boundaries and misapplied the law on private prosecutions.
The ruling effectively nullified the magistrate’s decision in its entirety.
The case traces back to August 2022, when Victorine Atemba reported receiving threatening text messages allegedly sent from Atamba’s phone.
Following investigations and upon establishing that the matter was domestic in nature, the ODPP opted for a Diversion agreement, a mechanism increasingly utilized under Kenya’s Alternative Justice Systems (AJS) framework.
The Diversion was formalized on February 22, 2024, effectively resolving the matter.
However, despite the Diversion’s completion, Atemba later approached the magistrate’s court seeking leave to institute a private prosecution, arguing that she had not been sufficiently consulted during the diversion process.
The magistrate agreed with her, ruling that the ODPP had sidelined her views and undermined her sense of justice, an outcome that triggered the ODPP’s appeal.
Both Atamba and the ODPP challenged the ruling, arguing that the magistrate had made critical errors in fact, law and jurisdiction.
Atamba maintained that the Diversion conclusively settled the case and reopening criminal proceedings would expose her to double jeopardy. The ODPP added that the magistrate had intruded on a constitutionally protected prosecutorial function.
The High Court concurred, stressing that the magistrate had improperly assumed jurisdiction over issues that should have been pursued through judicial review, not a private prosecution application.
The court also observed that Atemba had not exhausted the internal ODPP mechanisms available for reviewing diversion decisions nor provided any legal grounds to bypass them.
Crucially, the court held that granting leave for a private prosecution under these circumstances would constitute an abuse of court process.
It stated that such an action would violate constitutional protections against double jeopardy, affirming that the Diversion agreement remained the lawful and final resolution of the matter.
By overturning the magistrate’s ruling, the court reaffirmed the authority of the ODPP to exercise prosecutorial discretion, including the adoption of diversion and other AJS-aligned alternatives that promote restorative justice.
The judgment is expected to strengthen Kenya’s Diversion framework and provide clarity on the limits of private prosecutions where alternative justice mechanisms have already been applied.
The appeal submissions were prepared by Natasha Chala and argued by Loice Osoro.
This decision marks a significant step in safeguarding prosecutorial independence and ensuring that Diversion, a tool meant to promote reconciliation, efficiency, and fairness, retains its legal force once lawfully executed.
