Abusive Prosecutions: Githunguri and Fair Trial Law

A criminal charge normally belongs in the trial court. That is where witnesses are heard, documents are tested and guilt or innocence is decided. Stanley Munga Githunguri v Republic is important because it identifies the exceptional situation in which the real legal wrong lies not in the risk of conviction, but in being subjected to the prosecution at all.

The case is sometimes described too broadly as authority that an old prosecution should be stopped. That is not what it decided. The High Court intervened because delay operated together with official assurances that the matter had been closed, the absence of any stated fresh evidence, and a serious risk that the accused could no longer defend himself fairly. The modern question is therefore not simply, “How old are the charges?” It is, “Has the State exercised prosecutorial power in a manner that makes the criminal process itself unfair, oppressive or abusive?”

How the prosecution was revived

Githunguri v Republic, Criminal Application 271 of 1985 [1986] KEHC 44 (KLR), concerned four exchange-control charges relating to events dating back to the 1970s. The allegations had been investigated years earlier. According to Githunguri’s evidence, the Attorney-General’s office had decided not to prosecute, the files had been closed, property connected to the matter had been dealt with consistently with that decision, and statements in Parliament had indicated that prosecution was not justified.

The State nevertheless commenced criminal proceedings in 1984. When the dispute reached the High Court, the State did not identify fresh evidence explaining why the earlier position had changed. Githunguri argued that, after being officially led to believe the matter was over, the delayed revival deprived him of a fair opportunity to defend himself and turned the criminal process into oppression.

The High Court issued prohibition stopping the prosecution. It did not determine whether Githunguri had committed the alleged offences. Its concern was whether the State could fairly use the criminal process in those circumstances.

Why delay alone does not stop a prosecution

The judgment must be used carefully because Kenyan criminal law does not impose a general limitation period on serious offences merely because time has passed. Githunguri itself recognised that point. A prosecution is not automatically unconstitutional because an alleged offence occurred many years earlier.

Time becomes legally significant when it causes identifiable unfairness or combines with other circumstances showing abuse. A missing witness, destroyed documents, faded records or an official representation that reasonably caused the accused not to preserve defence material may matter. So may an unexplained reversal of a formally communicated decision not to prosecute where no new evidence is identified.

The Supreme Court confirmed this cautious approach in Jirongo v Soy Developers Ltd & 9 others [2021] KESC 32 (KLR). It described Githunguri as a leading persuasive authority on delayed prosecution while emphasising that the mere lapse of time does not ordinarily extinguish criminal liability. The real question is whether the delay has deprived the accused of the legal tools needed to mount a credible defence or whether another recognised abuse of process has been established.

The Constitution now states the prosecutor’s duty expressly

Githunguri arose under Kenya’s former Constitution, when the Attorney-General exercised prosecutorial power. The present Constitution creates an independent Director of Public Prosecutions. Article 157(10) protects that independence by providing that the DPP does not require the consent of another authority and is not subject to direction or control in exercising prosecutorial powers.

Independence, however, is not immunity from law. Article 157(11) expressly requires the DPP to have regard to the public interest, the interests of the administration of justice, and the need to prevent and avoid abuse of the legal process. Section 4 of the Office of the Director of Public Prosecutions Act reinforces those duties through principles including natural justice, public confidence, the cause of justice, prevention of abuse of legal process and constitutionalism.

The High Court was still applying this constitutional balance in 2026. In Kamau v Directorate of Criminal Investigations & 4 others [2026] KEHC 1041 (KLR), the Court reiterated that prosecutorial discretion is constitutionally protected but must be exercised consistently with Article 157(11). Courts should rarely interfere with investigations and prosecutions, yet they retain power to act where the constitutional limits are crossed.

Why courts must not turn judicial review into a criminal trial

The availability of judicial control creates its own danger. An accused person may try to use a constitutional petition to persuade a judge that the evidence is weak, witnesses are unreliable or an acquittal is likely. That ordinarily belongs to the trial court.

The Supreme Court in Saisi & 7 others v Director of Public Prosecutions & 2 others [2023] KESC 6 (KLR) reaffirmed that intervention becomes justified where criminal proceedings are being used to abuse court process, settle scores or subject a person to the expense of a case that is clearly being deployed for an improper purpose. The reviewing court does not generally decide the evidential merits as though hearing the criminal case.

That boundary protects both the accused and prosecutorial independence. Judicial review is available to protect legality, fair process and the integrity of the justice system. It is not a preliminary acquittal procedure.

Wafula shows the limits of Githunguri

The later litigation in Wafula v Director of Public Prosecutions shows why the factual foundation matters. In 2024, the Court of Appeal distinguished Githunguri where there had been no proved assurance that the appellant would never be prosecuted and further investigations were said to have generated new evidence. The Supreme Court dismissed the subsequent appeal in Wafula v Director of Public Prosecutions [2025] KESC 46 (KLR).

The lesson is significant. An earlier decision not to charge does not permanently exhaust the DPP’s constitutional power. A file may lawfully be reopened if fresh evidence emerges or another legitimate basis for reconsideration exists. What made Githunguri exceptional was the combination of official closure, reliance, delay, lack of an asserted fresh basis and resulting unfairness.

A lawyer relying on Githunguri should therefore prove those features rather than merely cite the age of the case.

Fair-trial standards give the principle wider context

Articles 25(c) and 50 of the Constitution protect the right to a fair trial, including procedural guarantees that operate throughout criminal proceedings. At regional level, Article 7 of the African Charter on Human and Peoples’ Rights protects the right to have one’s cause heard. The African Commission’s Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa further emphasise independent adjudication, adequate opportunity to prepare a defence and criminal proceedings conducted within a reasonable time.

Those regional standards do not create a separate Kenyan test for quashing a prosecution. The direct domestic test comes from the Constitution, Article 157, the ODPP Act and Kenyan precedent. Their value is interpretive: they reinforce the idea that prosecutorial power and trial fairness must coexist rather than operate as competing absolutes.

How an abuse-of-prosecution application should be built

For defence counsel, chronology is often the strongest evidence. The record should identify when the alleged offence occurred, when investigations began, what decision the prosecution previously made, who communicated it, what the accused did in reliance, whether property or documents were returned, what changed later, and what concrete prejudice now affects the defence.

If witnesses have died or cannot be traced, identify them and explain their relevance. If documents were destroyed because the State formally represented that the matter was closed, demonstrate that connection. If the State says fresh evidence emerged, the court should be shown enough of the decision-making basis to evaluate whether reopening was bona fide without converting the review into a trial.

For prosecutors, the same chronology should exist internally. Reopening an old or previously closed file should be supported by a clear institutional record identifying new evidence, changed circumstances or another lawful reason for reconsideration. Such documentation protects prosecutorial independence because it demonstrates that the decision resulted from legal judgment rather than arbitrariness.

Why Githunguri still matters

Githunguri remains powerful because it recognises that a criminal court can be misused even where it formally has jurisdiction over the offence. The judicial system is not required to lend its authority to proceedings that have become fundamentally unfair or oppressive.

Its modern use, however, must remain disciplined. It does not create a limitation period for criminal offences, freeze every earlier decision not to prosecute or invite judges to decide guilt before trial. It protects the exceptional accused person who can prove that the institution or continuation of the prosecution itself violates constitutional fairness or amounts to abuse of legal process.

That narrower understanding gives the precedent more, not less, value. It respects the DPP’s independence while preserving the judiciary’s constitutional responsibility to ensure that prosecutorial power is exercised for justice rather than through oppression.

Source note

This article is based on Githunguri v Republic [1986] KEHC 44 (KLR), the Constitution of Kenya 2010, particularly Articles 25(c), 50 and 157, the Office of the Director of Public Prosecutions Act, Jirongo v Soy Developers Ltd & 9 others [2021] KESC 32 (KLR), Saisi & 7 others v Director of Public Prosecutions & 2 others [2023] KESC 6 (KLR), Wafula v Director of Public Prosecutions [2024] KECA 1677 (KLR) and [2025] KESC 46 (KLR), Kamau v Directorate of Criminal Investigations & 4 others [2026] KEHC 1041 (KLR), Article 7 of the African Charter on Human and Peoples' Rights, and the African Commission's Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa.

Suggested citation: 

Ronald Serwanga, "Abusive Prosecutions: Githunguri and Fair Trial Law" East Africa Legal Insight (10 September 2026).