[2017] KEHC 8125 (KLR)
The court held that the trial magistrate properly exercised discretion under section 87(a) of the Criminal Procedure Code in allowing the prosecution to withdraw the case before the defence was called. The court found that the record showed the complainant had previously attended court and may not have been informed...
Source-derived case information.
- Citation
- [2017] KEHC 8125 (KLR)
- Parties
- Appellant: Caleb Ochieng Nyonje; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 61 of 2014
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- EM Muchoki
- Legal Topics
- Withdrawal of Charges, Rights of Accused, Section 87a Criminal Procedure Code, Section 202 Criminal Procedure Code
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Caleb Ochieng Nyonje
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the trial court erred in allowing withdrawal under section 87(a) of the Criminal Procedure Code without considering the rights of the accused.
- 2 Whether the appellant should have been acquitted under section 202 of the Criminal Procedure Code instead of being discharged under section 87(a).
- 3 Whether the court failed to explain the purport of section 87(a) to the appellant in a language he could understand.
Ratio Decidendi
The court held that the trial magistrate properly exercised discretion under section 87(a) of the Criminal Procedure Code in allowing the prosecution to withdraw the case before the defence was called. The court found that the record showed the complainant had previously attended court and may not have been informed to attend on the material day, and that the trial court attempted to balance the rights of the accused and the complainant. The discharge under section 87(a) did not amount to an acquittal and did not bar future proceedings on the same facts. The court also noted that the appellant had not been recharged since the withdrawal, and if such occurred, he would have an opportunity...
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
HCCRA NO. 61 OF 2014
CALEB OCHIENG NYONJE …......................................... APPELLANT
VERSUS
REPUBLIC …..................................................................... RESPONDENT
[An appeal against withdrawal under section 87(a) C.P.C. in Criminal Case No. 570 of 2012 by
PM's Court at Maseno before Hon. A.R. Kithinji PM dated 24th April 2013]
JUDGMENT
The appellant was discharged under section 87(a) of the Criminal Procedure Code in a case where he together with a co-accused were charged with burglary and stealing contrary to section 304(2) and 279(b) of the Penal Code. This was after a final application for adjournment was rejected by the trial court and close to one year after the institution of the prosecution and without calling any witness. Being aggrieved by the withdrawal he appealed.
The grounds for his appeal can be summarized as there being no evidence that witnesses were ever bonded to attend Court and if so why no action was taken against them yet he and his co-accused faithfully attended Court; the omission by the court to explain or interpret the purport of section 87(a) of Criminal Procedure Code to him in a language he could understand so as to enable him to respond to the application; that the likelihood of him being charged afresh was not taken into account and that he ought to have been acquitted under section 202 of the Criminal Procedure Code.
Section 87(a) of the Criminal Procedure Code gives a subordinate court discretion to accept or refuse an application by the prosecution to withdraw a case. Such consent must however take into consideration the rights of the accused. Only in exceptional circumstances is such refusal refused. The application in this case was made before the appellant and his co-accused were called upon to make their defence which meant that they were discharged. The section clearly stipulates that such a discharge of the accused shall not operate as a bar to subsequent proceedings against him on account of the same facts. The appellant filed this appeal way back in the year 2014 and there is no indication as yet that the prosecution wishes to charge him afresh on account of the same facts and should they do so then he shall have an opportunity to raise that issue. It is correct that section 202 of the Criminal Procedure Code empowers the Court and this in mandatory terms to acquit the accused person where the complainant has not attended court. It is on record that in considering the prosecutor's application the court observed that the complainant had earlier on in the proceedings attended court and may not have been informed to attend on that day. It is therefore apparent from the record that in allowing the application the court tried to balance the rights of the appellant and his co-accused and those of the complainant as well. Accordingly I find no merit in this appeal and it is dismissed.
Signed, dated and delivered at Kisumu this 19th day of January, 2017
E. N. MAINA
JUDGE
In the presence of:-
Miss Kimani for the state
Appellant in person
CA: Serah Sidera