[2009] KEHC 597 (KLR)
The appeal was allowed because the trial court failed to comply with the mandatory provisions of Section 200 of the Criminal Procedure Code after a change of magistrate, denying the accused the right to recall witnesses. Additionally, when the prosecution closed its case without calling any witnesses, the trial...
Source-derived case information.
- Citation
- [2009] KEHC 597 (KLR)
- Parties
- Appellant: Andrew Charo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 142 of 2006
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; conviction and sentence set aside; appellant to be set at liberty unless otherwise lawfully held.
- Legal Topics
- Change of Magistrate, Recall of Witnesses, Acquittal Procedure, Nullity of Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Andrew Charo
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the trial court complied with Section 200 of the Criminal Procedure Code after change of magistrate.
- 2 Whether the accused was entitled to an acquittal under Section 202 of the Criminal Procedure Code when the prosecution closed its case without evidence.
- 3 Whether the conviction was based on evidence properly before the court.
Ratio Decidendi
The appeal was allowed because the trial court failed to comply with the mandatory provisions of Section 200 of the Criminal Procedure Code after a change of magistrate, denying the accused the right to recall witnesses. Additionally, when the prosecution closed its case without calling any witnesses, the trial magistrate should have acquitted the accused under Section 202, but instead wrongly placed him on his defence. The conviction was based on evidence from proceedings that had been set aside, rendering the entire trial a nullity. There was no legal basis for the conviction as no evidence linked the accused to the offence. The court found that these procedural errors were fatal and...
Court Disposition
appeal allowed; conviction and sentence set aside; appellant to be set at liberty unless otherwise lawfully held.
Orders
- The appeal is allowed.
- The conviction and sentence are set aside.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
Criminal Appeal 142 of 2006
ANDREW CHARO ………………………………………………..APPELLANT
VERSUS
REPUBLIC ………………………………………………………RESPONDENT
J U D G M E N T
We have seen the petition of appeal as well as the appellant’s written submissions. We have also read carefully the trial proceedings, and taken note of the record of evidence.
Our view is confirmed by the submissions made by learned counsel, Mr. Ondari, who concedes this appeal.
It is clear that after change of presiding Magistrates, there was no compliance with the mandatory terms of S.200 Criminal Procedure Code, which requires that the accused be given a chance to recall witnesses.
Of more gravity is that there was an order made twice that the trial starts de novo.When the matter resumed on 11. 05. 06, the prosecution purportedly closed their case after adjournment was refused. The trial magistrate ought to have acquitted the accused at this point under S.202 Criminal Procedure Code. However, the trial court proceeded to put the accused on his defence. The accused was not called upon to submit on no case to answer. He was just placed on his defence. He gave an unsworn statement. Judgment was delivered in which he was convicted and sentenced.
It is clear that the conviction was based on evidence of the two witnesses whose proceedings had been set aside or abandoned. The two witnesses had to return to testify. They did not; and the prosecution was in effect closed their case without offering any evidence. To proceed on the basis of the earlier trial was a fatal misdirection and the entire proceeding was a nullity.
Secondly and more importantly, the trial court had no doubts as we also don’t - that no linkages between the accused and the offence had been brought out. So, as a matter of law there was no basis for the conviction. We hold that the Learned Magistrate, in entering a conviction had misdirected himself.
Accordingly, we allow the appeal, set aside the conviction and sentence, and order that the appellant shall forthwith be set at liberty unless otherwise lawfully held.
Orders accordingly.
DELIVERED, DATEDand SIGNEDat Mombasa this 17th day of November 2009.
M. K. IBRAHIM J. B. OJWANG
J U D G EJ U D G E