Proposed law clips prosecutor powers in dropping cases

A proposed law that is currently before Parliament seeks to place the authority to drop cases directly on the courts.

The Criminal Procedure Code (Amendment) Bill, 2026, provides that the ODPP seek the permission of the court before withdrawing a case.

It deletes the current law, which says the DPP “may enter a nolle prosequi, either by stating in court or by informing the court in writing” of intention to discontinue proceedings.

“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.

The change, if implemented, could see an end to the concerns that the ODPP has had the discretion to withdraw cases at will.

Anxiety went high in anti-graft agencies after several high-profile corruption and criminal cases were terminated.

Corruption cases involving tens of billions of shillings were dropped during the transition into the current administration, while some ended in acquittals.

Following the trend, critics cast doubt on President William Ruto’s administration’s commitment to fighting graft.

A section of rights activists and lobbyists raised concerns about the Kenya Kwanza approach.

The same was heavily canvassed during a recent EACC interaction with the media, where pressmen questioned progress in the graft war.

The anti-graft agency said its hands were tied as it has no prosecutorial powers, and hoped the courts would intervene.

The move could see an end to what has been seen as abuse, particularly in high-profile or politically sensitive cases.

If enacted, prosecutors will be required to justify their decisions in open court, with judges given the final say on whether a case can be dropped.

Beyond the prosecutorial changes, the Bill also targets long-standing provisions that have allowed preventive arrests based on suspicion.

It seeks to dismantle colonial-era provisions blamed for enabling arbitrary arrests and detention by police.

The bill sponsored by the Justice and Legal Affairs Committee, through its chairperson Tharaka MP Gitonga Murugara, repeals sections that permitted courts to demand bond even where no offence had been committed.

The move is expected to significantly curb police discretion that has often been used to target vulnerable groups and suppress dissent.

“The bill is informed by legislative reform proposals submitted to Parliament by the National Council on the Administration of Justice,” Murugara said.

Also central to the proposal is a shift in how the justice system handles accused persons with mental illnesses.

It scraps the long-standing practice of detention “at the president’s pleasure”.

In the proposed dispensation, courts will take full control, ordering mental assessments and determining whether an accused person should undergo medical assessments, treatment, or be released on bail or proceed to trial.

In the new framework, mental evaluations will be time-bound, with medical practitioners required to report directly to the court.

The changes are aimed at ending indefinite detention without review, which has drawn sustained criticism from rights groups over the years.

The bill further removes corporal punishment as a sentence option, driving the last nail into the practice which has prevailed despite being prohibited under the Constitution.

The reforms further recognise intersex persons in law and introduce safeguards on how searches involving them should be conducted.

Officers will be required, where practicable, to carry out such searches in line with the individual’s preference and with strict regard to dignity.

“Whenever it is necessary to cause an intersex person to be searched, the search shall, where reasonably practicable, be conducted by a person of the sex which the intersex person shall prefer with strict regard to decency and in such manner as to protect the dignity of the intersex person,” the Bill reads.

Additional changes seek to modernise court operations, including recognising Kiswahili, English and Kenya Sign Language as official court languages. It also allows the use of computers in recording evidence.

The Bill also updates outdated legal terminology, replacing references to “subordinate courts” with “magistrates’ courts”.

It further seeks to align administrative units with the current constitutional framework.

Provisions on handling property linked to criminal cases have also been clarified.

The bill sets out procedures for forfeiture, disposal and the return of exhibits to rightful owners after the conclusion of cases.