[2014] KEHC 7177 (KLR)
The High Court found that the trial magistrate had provided valid reasons for revoking the suspension letters issued to the accused students. The magistrate acted to protect the students' constitutional right to education and found that maintaining the suspension while the criminal case was pending amounted to...
Source-derived case information.
- Citation
- [2014] KEHC 7177 (KLR)
- Parties
- Applicant: Brian Mwadime & Others; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 103 of 2013
- Procedural Posture
- Criminal Revision / Ruling on Revision of Trial Magistrate's Order
- Outcome
- review dismissed; magistrate's order upheld
- Judges
- GO Shikwe
- Legal Topics
- Arson Offence, Student Suspension, Right to Education, Double Jeopardy, Criminal Revision, Trial Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Brian Mwadime & Others
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Revision of Trial Magistrate's Order
Legal Issues
- 1 Whether the trial magistrate had the authority to revoke the suspension letters issued to the accused students.
- 2 Whether the revocation of the suspension letters was justified in law and fact.
- 3 Whether the accused students' right to education was infringed by the suspension pending determination of the criminal case.
Ratio Decidendi
The High Court found that the trial magistrate had provided valid reasons for revoking the suspension letters issued to the accused students. The magistrate acted to protect the students' constitutional right to education and found that maintaining the suspension while the criminal case was pending amounted to double jeopardy. The High Court determined that there was no legal or factual basis to interfere with the magistrate's order, as the reasons given were sufficient and within the magistrate's discretion. The review application was therefore dismissed, and the lower court was directed to proceed with the hearing of the criminal charges.
Court Disposition
review dismissed; magistrate's order upheld
Orders
- The lower court file is to be returned to Wundanyi Court.
- The trial magistrate is to proceed with the hearing of the charges facing the accused persons.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CRIMINAL REVISION NO. 103 OF 2013
BRIAN MWADIME & OTHERS ….................................………..APPLICANT
VERSUS
REPUBLIC ……….……........................................................…RESPONDENT
REVISION
BRIAN MWADIME and Eight(8) others students at Kenyatta High School Mwatate were charged with the offence of Arson contrary to section 332 (a) of the Penal Code.
They pleaded not guilty. In the course of proceedings the trial magistrate was informed by Counsel for the Accused Mr. Mwanyumba that the Accused persons had received letters of suspension from school.
Mr. Tola the principal is shown to have told the Court that the students were suspended for purposes of their own safety and security and to prevent them from impending investigations.
The trial magistrate then proceeded to revoke the suspension letters and he noted that he was doing so in order to protect the students right to education which is enshrined in the Constitution. He further noted that the suspension when their case was still pending hearing and determination amounted to double jeopardy.
Section 362 of the Criminal Procedure Code provides,
“ The High Court may call for and examine the record of any Criminal proceedings before any subordinate Court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of any such subordinate Court”.
The reasons for the review are that the orders or revocation of the letters of suspension were without any basis, that they were made without the magistrate satisfying herself or demanding an explanation from the Board of Governors.
I have gone through the proceedings and the orders granted by the trial magistrate and I am satisfied that she gave valid reasons for such revocation.
I find no good reason to interfere with her orders. I had called for the lower Court file. It has stalled the hearing of the case.
It is ordered that the lower Court file be returned to Wundanyi Court. The trial magistrate to proceed with the hearing of the charges facing the Accused persons.
Same to be mentioned before her for appropriate orders on 18th February, 2014.
Ruling delivered dated and signed in open Court this 11th day of February, 2014.
…..................
M. MUYA
JUDGE
11TH FEBRUARY, 2014
In the presence of:-
Learned State Counsel Mr. Tanui
Court clerk Musundi