Geoffrey Andare v Attorney General & 2 others [2016] eKLR Public Prosecutions or the authority charged with the prosecution of criminal offences to investigate and undertake prosecution in the exercise of the discretion conferred upon that office. The mere fact that the intended or ongoing criminal proceedings are in all likelihood bound to fail, it has been held time and again, is not a ground for halting those proceedings. That a petitioner has a good defence in the criminal process is a ground that ought not to be relied upon by a Court in order to halt criminal process undertaken bona fides since that defence is always open to the Petitioner in those proceedings. However, if the Petitioner demonstrates that the intended or ongoing criminal proceedings constitute an abuse of process and are being carried out in breach of or threatened breach of the Petitioner’s Constitutional rights, the Court will not hesitate in putting a halt to such proceedings.” 61. In that case, the Court also cited with approval the words of the court in Kuria & 3 Others vs Attorney General [2002] 2 KLR 69 in which the High Court had observed that: “The Court has power and indeed the duty to prohibit the continuation of the criminal prosecution if extraneous matters divorced from the goals of justice guide their instigation. It is a duty of the court to ensure that its process does not degenerate into tools for personal scoresettling or vilification on issues not pertaining to that which the system was even formed to perform... A stay (by an order of prohibition) should be granted where compelling an accused to stand trial would violate the fundamental principles of justice which underlie the society’s senses of fair play and decency and/or where the proceedings are oppressive or vexatious... The machinery of criminal justice is not to be allowed to become a pawn in personal civil feuds and individual vendetta. It is through this mandate of the court to guard its process from being abused or misused or manipulated for ulterior motives…” 62. I am satisfied that in the present case, should the Court find that the provisions of section 29 of the Act are unconstitutional, and that therefore the prosecution of the petitioner under its provisions violates or threatens to violate his constitutional rights, then the Court has the jurisdiction to grant the orders that he seeks. I will now turn to consider the substantive issue raised in the petition, the constitutionality of the said section. Whether Section 29 of the Kenya Information and Communication Act is Unconstitutional 63. The petitioner and interested party have argued that section 29 of the Act is unconstitutional. Their argument is that the section is vague and overbroad, it has a chilling effect on the guarantee to freedom of expression, and it creates an offence without creating the mens rea element on the part of the accused person. The AG and DPP deny these allegations, with the AG maintaining that the section is constitutional and a permissible limitation under Article 24 of the Constitution. 64. Before embarking on an analysis and determination of this issue, it is useful to consider what the duty of the court is in determining whether the impugned provision is unconstitutional, and the principles that should guide the court in making its determination. Applicable Principles 65. In U.S vs Butler, 297 U.S. 1[1936], the Court expressed the duty of a Court in determining the constitutionality of a provision of a statute in the following terms: “When an Act of Congress is appropriately challenged in the courts as not conforming to the http://www.kenyalaw.org - Page 11/20