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

The Magistrates Court in Nairobi is set to rule next week on whether to strike out pleadings in the case between JILK Construction Company Limited and Kenya Breweries Limited (KBL) that were filed by a lawyer whose practicing certificate had expired.

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

Onyina’s decision follows the recusal of another magistrate, Theresa Nyangena, who stepped aside after complaints from Mungai. Nyangena had refused to certify the proposed private prosecution as urgent and directed Mungai to serve the Office of the Director of Public Prosecutions (ODPP), a decision that prompted backlash from Mungai. He subsequently wrote to the Chief Justice, demanding her recusal.

Mungai had sought to discuss the merits of the proposed prosecution against KBL Managing Director Jane Karuku and Corporate Relations Director Eric Kiniti. However, Onyina declined to entertain such discussions, noting that the file had only just been placed before him following Nyangena’s recusal.

In his pursuit to have the executives face court, Mungai requested that they be summoned, a hearing date be fixed, and a determination made on whether their lawyers should respond on their behalf.

In response, lawyer Cecil Miller, representing the executives, argued that requesting the appearance of the executives at this stage was premature. He noted that the ODPP had not yet granted leave for the private prosecution to proceed, emphasizing that it could not act without such permission and should first be allowed to declare its position.

Complicating matters, it emerged that while acting for JILK, Mungai had only renewed his practising certificate on March 11. This raised questions about the validity of the legal actions he had undertaken prior to that date.

The respondents further raised a preliminary objection challenging the competence of the applicant’s counsel. They cited an application dated March 23, 2026, alleging that Mungai lacked a valid practising certificate and urged the court to prioritize that application before considering any substantive matters. Other counsel, including those representing the first respondent, associated themselves with this position, stressing that there are no criminal charges before the court and no accused persons until leave is granted by the ODPP.

In his reply, Mungai maintained that the matter was properly before the court, that the ODPP had been duly served, and that the issues at hand, which allegedly involve serious misconduct, should not be dismissed on procedural technicalities.