[2020] KEHC 775 (KLR)
The court held that the decision to place the applicant on his defence was a discretionary finding by the trial magistrate under Section 211 of the Criminal Procedure Code, based on the prosecution having established a prima facie case. The grounds raised by the applicant, including alleged lack of corroborative...
Source-derived case information.
- Citation
- [2020] KEHC 775 (KLR)
- Parties
- Applicant: Allan Gray; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 178 of 2020
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision
- Outcome
- application dismissed
- Legal Topics
- Criminal Revision, Prima Facie Case, Case to Answer, Sexual Offences, Trial Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Allan Gray
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision
Legal Issues
- 1 Whether the trial magistrate erred in finding that the applicant had a case to answer under Section 211 of the Criminal Procedure Code.
- 2 Whether the grounds raised by the applicant are proper for revision or should be raised on appeal or in defence.
Ratio Decidendi
The court held that the decision to place the applicant on his defence was a discretionary finding by the trial magistrate under Section 211 of the Criminal Procedure Code, based on the prosecution having established a prima facie case. The grounds raised by the applicant, including alleged lack of corroborative medical evidence and inconsistencies in the complainant's testimony, are matters for appeal or for use in the defence, not for revision. The applicant failed to demonstrate any error or impropriety in the trial magistrate's finding. Accordingly, the application for revision was dismissed.
Court Disposition
application dismissed
Orders
- The application for revision is dismissed.
- The applicant to attend before the trial magistrate for mention on 21/12/2020 for fixing of defence hearing date.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CRIMINAL DIVISION
CRIMINAL REVISION NO. 178 OF 2020
ALLAN GRAY.......................................APPLICANT
VERSUS
REPUBLIC........................................RESPONDENT
R U L I N G
1. By a letter dated 18th May 2020 the Applicant Allan Gray sought that this court calls for Shanzu SPMC Sexual Offence Case No. 3 of 2019 for purposes of satisfying itself as to the correctness of the finding and order recorded determining that there was a case to answer on the part of the Applicant herein.
2. The grounds upon which the revision was required were set out as follows:-
a) A lack of corroborative on Medical evidence linking the defendant with the alleged offence.
b) Inconsistent evidence on the part of the complainant alleging that the defendant last committed the offences charged in the month of August 2018 whilst evidence tendered by the medical doctor in court stated that the offence complainant of occurred in the month of November 2018.
c) Indeterminate evidence adduced by the complainant as regards the dates when the alleged offence occurred rendering the defendant unable to mount a noblest defence to the charges.
3. In Okere Advocates to the Applicant didn’t attend on 10/12/2020 to argue the application and the same was set down for ruling based on the letter dated 18th May 2020.
4. With all due respect the placing of the Applicant on defence was based on a finding by the trial Magistrate under Section 211 of the Criminal Procedure Code that the prosecution had raised a prima facie case. Such a finding cannot be faulted by an application for revision. That finding was an exercise by the inherent discretion of the trial Magistrate which can only be challenge on appeal based on good grounds.
5. The grounds raised by the Applicant are such that are fit as grounds of appeal or they can be used in his defence. This court does not find any merit in the application for revision as it has not been shown that the trial Magistrate made an error in finding the applicant had a case to answer.
6. The application is therefore dismissed.The Applicant to attend before the trial Magistrate for Mention on 21/12/2020 for fixing of defence hearing date.
Dated, signed and delivered online by MS TEAMS,this17thday ofDecember 2020
HON. LADY JUSTICE A. ONG’INJO
JUDGE