The High Court in Kakamega has halted a private prosecution bid and upheld a diversion agreement, marking a major win for the Office of the Director of Public Prosecutions (ODPP).
In a court ruling that was delivered on 1st December 2025, the decision set aside a magistrate’s earlier rule that had allowed the complainant, Victorine Atemba, to start a private prosecution against Sylvia Atamba.
The case began after Ms Victorine Atemba reported receiving threatening text messages in August 2022, allegedly sent from Ms Sylvia Atamba’s phone.
The ODPP reviewed the case and opted for a diversion agreement on 22nd February 2024, citing the domestic nature of the dispute and the suitability of Alternative Justice Systems (AJS).
Ms Atemba later moved to the magistrate’s court, claiming she was not properly consulted during the diversion process, saying she was only asked to sign the final agreement without explanation.
She argued that the lack of engagement violated the ODPP’s Diversion Policy Guidelines, which require prosecutors to explain the benefits of diversion to victims before a final decision is made.
The magistrate agreed and granted her leave to pursue a private prosecution, ruling that the ODPP had failed to factor in the victim’s views.
Both Ms Atamba and the ODPP challenged that decision, arguing the magistrate had no jurisdiction to review a diversion decision and that the proper route was judicial review within the ODPP system.
They also argued that reopening the matter would expose Ms Atamba to double jeopardy since the diversion had already settled the case.
In its judgment, the High Court found that “private prosecution after a lawful diversion agreement would be oppressive and an abuse of court process,” reaffirming that diversion falls squarely under the ODPP’s constitutional mandate.
The court added that the magistrate had “erroneously assumed jurisdiction” and ignored internal review mechanisms outlined in the Diversion Policy Guidelines.
The High Court further noted that the ODPP had not refused to prosecute but had instead exercised prosecutorial discretion lawfully under Article 157 of the Constitution.
Submissions for the appeal were prepared by Natasha Chala and argued in court by State Counsel Loice Osoro.
