Magistrate’s Court Defers Directions in Private Prosecution Bid Amid Procedural Disputes

A court will rule next week whether to throw out pleadings in the case between a construction firm and Kenya Breweries Limited that a lawyer filed with an expired practising certificate.

The Head of Station at the Magistrates Court in Nairobi, Lucas Onyina, will on March 30 also give directions on the bid by JILK Construction Company Limited’s lawyer, Kibe Mungai, to privately prosecute top executives at KBL.

Onyina decided to recuse himself after another magistrate, Theresa Nyangena, recused herself from handling the matter following complaints by Mungai, who had refused to rule in his favour.

Nyangena had declined to certify the proposed private prosecution as urgent and directed Mungai to serve the Office of the Director of Public Prosecutions, which provoked backlash from Mungai, who wrote to the Chief Justice and demanded that she recuse herself.

Mungai’s attempt to discuss the merits of the proposed prosecution of EABL Managing Director Jane Karuku and Corporate Relations Director Eric Kiniti was, however, declined by Onyina as the file had just been placed before him after Nyangena’s recusal.

Keen to have the executives in the dock, Mungai asked the court to summon them, fix a hearing date and rule on whether their lawyers should answer on their behalf.

But lawyer Cecil Miller, representing the executives, argued that asking for them to be in court was premature as the Director of Public Prosecutions had not yet agreed for the private prosecution to happen.

He further noted that the ODPP had indicated it could not act without such leave and should first be allowed to declare its position.

It has also turned out that while he has been acting for JILK, Mungai only renewed his practicing certificate on March 11, meaning the matters he had been handling before then could be in peril.

The respondents also raised a preliminary issue challenging the competence of the applicants’ counsel, citing an application dated 23rd March 2026 alleging that he lacked a valid practicing certificate. They urged the court to prioritize that application before entertaining any substantive prayers. Other counsel, including those for the 1st respondent, associated themselves with this position, emphasizing that there are no criminal charges before the court and no accused persons until leave is granted.

In reply, Mr. Kibe maintained that the matter was properly before the court, that the ODPP had been duly served, and that the issues raised, allegedly involving serious misconduct, should not be dismissed on procedural technicalities.

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