The National Assembly is considering wide changes to Kenya’s criminal justice system that would strip the Director of Public Prosecutions of sole authority to withdraw cases and instead place the final decision in the hands of courts, marking a major shift in how prosecutions are handled in the country.
Under the Criminal Procedure Code (Amendment) Bill, 2026, prosecutors will no longer be able to discontinue criminal proceedings independently. Any decision to terminate a case will first require approval from a judge before it can take effect.
The current legal framework allows the Director of Public Prosecutions to end cases through a nolle prosequi either by informing the court in writing or by announcing it in court. The proposed law seeks to remove that discretion.
The Bill states: “The principal Act is amended in subsection (2) by inserting the words, ‘with the permission of the court’ immediately after the words ‘nolle prosequi is’”, the bill reads in part.
If passed, prosecutors will have to present reasons for dropping any case before a judge, who will then decide whether the request is valid. This means courts will have the final say on whether criminal proceedings can be discontinued.
The push for the changes comes amid past public concern over the withdrawal of several high-profile corruption and criminal cases. Some of those cases involved large sums of money and were either terminated or ended through acquittals, raising questions about consistency in prosecution decisions.
Concerns have also been raised by anti-corruption agencies, which have argued that their efforts are sometimes affected by decisions made at the prosecution stage. Some officials have previously stated that their role ends after investigations, leaving prosecution outcomes beyond their control.
The proposed law is being seen as an attempt to introduce tighter oversight and reduce fears that cases can be dropped without sufficient scrutiny, especially those touching on public interest or political sensitivity. Prosecutors will now be expected to defend such decisions in open court.
Beyond prosecution reforms, the Bill also targets police powers that allow arrests based purely on suspicion. It seeks to remove legal provisions described as outdated, which have long been linked to arbitrary arrests and detention practices.
The amendment also revisits provisions that allowed courts to impose bond even where no offence had been established. Lawmakers behind the Bill argue that such sections have been misused and need review to align with constitutional protections.
The proposal is sponsored by the Justice and Legal Affairs Committee, led by Tharaka MP Gitonga Murugara, who said the changes are drawn from reform proposals submitted to Parliament.
“The bill is informed by legislative reform proposals submitted to Parliament by the National Council on the Administration of Justice,” Murugara said.
Another key area in the Bill is how the justice system handles accused persons with mental health conditions. It proposes scrapping the long-standing practice of detention “at the president’s pleasure”.
Instead, courts will take full control of such cases by ordering mental assessments, reviewing medical reports, and deciding whether an accused person should be treated, released on bail, or taken to trial. The assessments will also be guided by strict timelines, with medical experts required to report directly to court.
The reforms are aimed at ending indefinite detention without review, a practice that has faced criticism from human rights groups over the years.
The Bill also proposes removing corporal punishment as a sentencing option, ending its use despite constitutional provisions already restricting it.
It further introduces recognition of intersex persons under the law and sets conditions for how searches involving them should be conducted. Police officers will be required, where possible, to respect the individual’s preference while maintaining dignity during such procedures.
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