Yes, you can be moved from witness stand to the dock

Did you know that a witness can be turned into an accused person in the same case?

Imagine this. You are called to testify in court not as a suspect, but as a witness. You’ve given your statement, prepared to help the court uncover the truth as a State witness, and perhaps even exhaled with relief that the storm of suspicion passed you by. Then one day, you receive a knock on your office door. It’s not a request for your testimony, it’s an arrest. Suddenly, you are no longer a witness; you are the accused.

The same case, the same file, but your name has moved from the witness list to the charge sheet. This unsettling scenario became a real-life story in Wafula v Director of Public Prosecutions; EACC & 2 Others. The Supreme Court of Kenya, in its decision delivered on July 11, 2025, confronted this very question: Can the Office of the Director of Public Prosecutions (ODPP) lawfully convert a prosecution witness into an accused person? The Court answered yes, but only if the decision is exercised within the strict boundaries of good faith, procedural fairness, and constitutional compliance.

The case arose from the anti-corruption proceedings involving Nzoia Sugar Company Limited, where the appellant, an advocate and company secretary, initially appeared as a prosecution witness. He had been cooperating with investigators from the Ethics and Anti-Corruption Commission (EACC), having even recorded a statement. However, years later, after new investigations, he found himself charged with offences relating to misuse of public funds. He argued that the ODPP acted unlawfully and violated his rights by converting him into an accused person after he had already been a witness.

The Supreme Court, however, upheld the decisions of the High Court and Court of Appeal, ruling that the ODPP had acted within its constitutional and statutory powers. Under Article 157 of the Constitution, the ODPP has broad prosecutorial discretion to institute, continue, or discontinue criminal proceedings but this power is not unbounded. It must always heed the constitutional command under Article 157(11): To act in the public interest, advance the administration of justice, and avoid abuse of legal process.

In simple terms, the court affirmed that prosecutors can reassess a case when new evidence emerges, even if it means changing the role of a person from witness to accused. The underlying principle, however, is that this must not be done capriciously or in bad faith. The decision to charge or to transpose must be supported by credible, admissible evidence, and follow the established evidential and public interest tests. The court cautioned that any exercise of discretion tainted by malice, arbitrariness, or procedural unfairness would be unconstitutional and open to judicial review under Article 47 on fair administrative action.

The court found no evidence that the ODPP’s decision in this case was malicious or arbitrary. It accepted that fresh investigations by the EACC had revealed new facts justifying the re-evaluation of the appellant’s role. The ODPP was therefore entitled to reassess its earlier position and make a new decision based on the updated evidential landscape. Importantly, the court rejected the notion that once a person is listed as a witness, that status is frozen forever. Justice, it reasoned, must remain flexible enough to respond to evolving evidence.

The requirement of good faith stands as the moral and constitutional compass guiding the exercise of that discretion. Good faith demands that decisions be reasoned, evidence-based, and free from ulterior motives.

It is not a technical requirement but a safeguard of public confidence in the justice system. For the ordinary Kenyan, this decision may feel unsettling. It blurs the line between helper and suspect, between those who come forward and those who stand accused. Might it discourage witnesses from cooperating with investigators out of fear that their cooperation could later be turned against them?

The Supreme Court indirectly addressed this tension. It implied that while the ODPP’s discretion is necessary for effective prosecution, it must never be exercised in a way that weaponises cooperation or punishes candour. A witness who tells the truth must never be ambushed by bad faith.

At a deeper level, this judgment reinforces Kenya’s evolving prosecutorial field, one that balances institutional independence with constitutional accountability. The ODPP is not above scrutiny; its decisions are always reviewable for fairness, legality, and reasonableness. The courts retain their supervisory role to ensure that discretion does not morph into arbitrary power.

As the Supreme Court observed, any decision that fails the test of procedural fairness, reason, and good faith is susceptible to being quashed. The case also underscores the centrality of the Two-Stage Test in charging decisions, the evidential test and the public interest test.

Both must be satisfied before anyone, including a former witness, can be charged. This dual safeguard ensures that the ODPP’s discretion remains guided by objectivity rather than expediency. In the end, the court’s message was both clear and cautionary: Yes, a witness can become an accused, but only where justice demands it and only when the decision is anchored in fairness, evidence, and good faith.

The line between the witness stand and the dock may sometimes shift, but it must never do so at the expense of the Constitution’s promise of justice for all. This decision redefines justice, affirming that while truth may shift, fairness must never falter. Good faith remains the enduring compass of prosecutorial discretion and integrity.