On Friday, October 15, Havi clarified that the LSK agrees with the hierarchy of powers related to criminal investigations and prosecutions, Article 157 (4) of the Constitution, which elevates the DPP above the DCI.

In a statement seen by MSCA news, Havi pointed out the recent spat between the DPP and DCI on Tob Cohen’s trial, saying there is a real danger of compromised trials due to wrangles between the two institutions.

President of the Law Society of Kenya Nelson Havi in Nairobi in February 2020.

“There is, however, the real danger of the trial being compromised due to wrangles between the Director of Criminal Investigations (DCI) and the Director of Public. Prosecutions (DPP) on extraneous issues manifesting as a power struggle between the two.”

In this case, the DPP wrote a letter to the Inspector General of the National Police Service, notifying him that there was a lack of evidence to charge Court of Appeal Judge, Sankale Ole Kantai, with the assassination of the late Tob Cohen.

The DCI remained adamant stating they were determined to arrest the judge and arraign him in court, despite the DPP terminating the case expressing that he could only terminate criminal proceedings instituted by his office.

“The DPP can only terminate criminal proceedings instituted by his office and not criminal investigations being undertaken by DCI while exercising its constitutional mandate”, the DPP affirmed.

LSK expressed their concerns over the supremacy battle between the heads of the two offices over the power to initiate criminal charges terming it out of control.

“The tussle between the heads of the two offices over the power of initiation of criminal charges has spiralled out of control,” the statement read.

It additionally stated the petition seeking to remove the DPP from office had all visible footprints and fingerprints of the DCI.

“The DCI has in this case purported to arrogate to himself powers that he does not have, by demanding that the Judge be charged when the DPP has determined on the basis of evidence and the law, that a crime charge is unsustainable.”