NAIROBI, Kenya, June 15 – The Director of Public Prosecutions (DPP) has asked the High Court to strike out a petition filed by Diageo PLC seeking to halt any potential criminal investigations and prosecution arising from a commercial dispute involving Jilk Construction Company Limited and other parties.
In a preliminary objection lodged before the court, the DPP argues that the petition is premature, speculative and improperly seeks to challenge criminal proceedings that have neither been initiated nor approved by the prosecution authority.
The DPP contends that the court lacks jurisdiction to hear the matter as presented, arguing that prosecutorial powers are exclusively vested in the Office of the Director of Public Prosecutions under Article 157 of the Constitution.
According to the objection, Diageo’s petition offends the doctrine of constitutional avoidance by inviting constitutional intervention in issues that can be adequately addressed through existing criminal justice mechanisms, including the Criminal Procedure Code and the National Police Service Act.
The prosecution further argues that the petition amounts to an abuse of the court process because it seeks to restrain the DPP from exercising constitutional and statutory powers despite the absence of any demonstrated decision to prosecute.
The DPP maintains that granting the orders sought would unlawfully interfere with the independence of the office, contrary to Article 157(10) of the Constitution, which protects the DPP from direction or control by any person or authority.
The objection also states that the petition is speculative and non-justiciable because it seeks anticipatory relief against criminal proceedings that may never arise.
Further, the DPP argues that Diageo has failed to demonstrate any specific constitutional violation attributable to the prosecution authority, as required by established legal principles.
The prosecution also relies on Section 193A of the Criminal Procedure Code, arguing that the existence of civil, arbitral or commercial proceedings does not preclude criminal investigations or prosecutions based on the same facts.
According to the DPP, the petition improperly attempts to transform contested commercial and factual disputes into constitutional issues while pre-empting investigative and prosecutorial processes that are constitutionally sanctioned.
The DPP has urged the court to find that both the petition and the accompanying application are incompetent, legally untenable and an abuse of the court’s constitutional jurisdiction. The prosecution is seeking orders to strike out the petition and dismiss the application with costs.
