[2006] KEHC 150 (KLR)
The High Court held that the trial magistrate erred in law by ordering the trial to start de novo after the prosecution had closed its case and the defence case had commenced. The court found that, in accordance with section 200 of the Criminal Procedure Code, the trial should have proceeded from the defence stage,...
Source-derived case information.
- Citation
- [2006] KEHC 150 (KLR)
- Parties
- Applicant: Bornface Oduor Akivinga; Applicant: Benard Wanzala Okeelo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 246 of 2006
- Procedural Posture
- Criminal Revision / Application for Revision of Subordinate Court Order
- Outcome
- Order for de novo trial set aside; proceedings to continue from defence stage.
- Legal Topics
- Revision of Magistrate Orders, Supervisory Jurisdiction, Trial Procedure, Denovo Trial, Section 200 Criminal Procedure Code
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bornface Oduor Akivinga
Applicant
Benard Wanzala Okeelo
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Application for Revision of Subordinate Court Order
Legal Issues
- 1 Whether the trial magistrate erred in law by ordering the case to start de novo after the prosecution had closed its case and the defence case had commenced.
- 2 Whether the High Court has jurisdiction to revise the subordinate court's order under section 364 of the Criminal Procedure Code and section 18 of the Magistrate's Courts Act.
Ratio Decidendi
The High Court held that the trial magistrate erred in law by ordering the trial to start de novo after the prosecution had closed its case and the defence case had commenced. The court found that, in accordance with section 200 of the Criminal Procedure Code, the trial should have proceeded from the defence stage, particularly given the practical difficulties in recalling prosecution witnesses and the loss of exhibits. The High Court exercised its supervisory and revisionary jurisdiction to set aside the order for a de novo trial and directed that the proceedings continue from the defence stage before a magistrate of concurrent jurisdiction at Busia Principal Magistrate’s Court.
Court Disposition
Order for de novo trial set aside; proceedings to continue from defence stage.
Orders
- Proceedings in Busia PMCC No.246/2003 to proceed from the defence stage before a DM.II or Magistrate of concurrent jurisdiction at Busia Principal Magistrate’s Court.
- A date for hearing to be taken on a priority basis.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUSIA
Criminal Revision 246 of 2006
BORNFACE ODUOR AKIVINGA )
BENARD WANZALA OKEELO )................APPLICANTS
VS
REPUBLIC.........................................................RESPONDENT
REVISION
This matter has been brought before me for revision pursuant to the provisions of section 364 of the Criminal Procedure Code section 3(1) of which provides:
“In the case of proceedings in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may…………
a) In the case of any other order than order of Acquittal, alter or revise the order.”
The undisputed facts are that the prosecution closed its case on 10th June, 2003. The court then invoked the provisions of section 211 of the Criminal Procedure Code.
Subsequently, on the 19th day of November 2003, the learned trial Magistrate J. N. Makut, on application by the defence ordered that the case do start – denovo.
On 5th May 2006, the prosecution, being aggrieved by the said order, applied for revision of the order of 19th March, 2003.
I am alive to the law that section 18 of the Magistrate’s Courts Act vests me with supervisory powers over subordinate courts. I am equally aware that the Chief Justice by a directive, has emphasized the supervisory role of the High Court over subordinate courts.
Against that backdrop, I am persuaded that I have jurisdiction to review the order of Mr. J. N. Makut made on 19th November 2003.
By record of proceedings, the case had reached advanced stage-defence case. In my view, this is a matter in respect of which the Magistrate should have ordered the trial to proceed from the defence stage in conformity with section 200 of the Criminal Procedure Code. I am of the persuasion that it was a grave error in law to hold that the trial should start – denovo, when prosecution witnesses who gave evidence attendance cannot be procured without unnecessary delay not to mention that the exhibits produced have been misplaced.
Accordingly, in exercise of my powers under section 18 of the Magistrate’s Court’s Act and section 364 of the Criminal Procedure Code, I order that the proceedings in Busia PMCC No.246/2003 do proceed from the defence stage before a DM.II or a Magistrate of concurrent jurisdiction based at Busia Principal Magistrate’s Court. A date for the hearing to be taken on a priority basis.
A copy of this order to be served upon the Principal Magistrate, Busia for compliance. Another copy to be served upon the defence counsel.
DATED and DELIVERED at BUSIA this 22nd day of December, 2006.
N.R.O. OMBIJA
JUDGE
Mr Ashioya for Mr. Okule for the applicant.
NA for state.