[2016] KEHC 7929 (KLR)
The court held that the accused's right under Section 200(3) of the Criminal Procedure Code to determine whether the trial should proceed de novo or continue from where it had reached is paramount and can be exercised at the accused's discretion, subject to any observations by the prosecution. Since the accused had...
Source-derived case information.
- Citation
- [2016] KEHC 7929 (KLR)
- Parties
- Applicant: The Chief Magistrate, Kibera Law Courts; Respondent: Josephine Muthoni Mwaura
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 139 of 2016
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision
- Outcome
- Order for de novo trial set aside; trial to proceed from where previous magistrate left off.
- Judges
- LK Kimaru
- Legal Topics
- Criminal Procedure Code Section 200, Trial De Novo, Magistrate Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
The Chief Magistrate, Kibera Law Courts
Applicant
Josephine Muthoni Mwaura
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision
Legal Issues
- 1 Whether the trial magistrate can proceed with the case from where the previous proceedings had reached after the accused changes her mind regarding a de novo trial.
- 2 Whether the accused's right under Section 200(3) of the Criminal Procedure Code to determine the mode of trial can be exercised after an initial election.
Ratio Decidendi
The court held that the accused's right under Section 200(3) of the Criminal Procedure Code to determine whether the trial should proceed de novo or continue from where it had reached is paramount and can be exercised at the accused's discretion, subject to any observations by the prosecution. Since the accused had changed her mind and now wished the trial to proceed from where it had reached, the court found it proper to set aside the earlier order for a de novo trial. The trial magistrate was thus at liberty to proceed with the case from the point where the previous magistrate ceased to exercise jurisdiction. The court exercised its revisionary powers under Sections 362 and 364 of the...
Court Disposition
Order for de novo trial set aside; trial to proceed from where previous magistrate left off.
Orders
- The order issued by Hon. Brian Khaemba on 20th February 2014 directing that the case begins de novo is set aside.
- The trial magistrate is at liberty to proceed with the case from where the previous magistrate ceased to exercise jurisdiction.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION
CRIMINAL REVISION NO.139 OF 2016
(An Application for Revision arising out of a Ruling by Hon. B. Ochoi –PM delivered on 1st March 2016 in Kibera CM. CR. Case No.2048 of 2016
THE CHIEF MAGISTRATE,
KIBERA LAW COURTS..............…………….........................APPLICANT
VERSUS
JOSEPHINE MUTHONI MWAURA...…….....….................RESPONDENT
RULING
The Jurisdiction of the court under Section 362 and 364of the Criminal Procedure Code has been invoked by the trial magistrate seeking clarification in respect to whether the court can proceed with the trial in circumstances in which a magistrate, who was previously seized with jurisdiction in the case, had made an order that the case starts de novo under Section 200 of the Criminal Procedure Code. The trial magistrate was put in this dilemma by the accused who now informs the same court that she wishes to have the case proceed from where the previous proceedings had reached.
Section 200(3) of the Criminal Procedure Code vests the right to an accused person to decide whether or not she wishes to have the trial continue in circumstances where another magistrate is taking over proceedings from the magistrate who previously handled the case. This right can only be exercised by the accused but subject to any observation that the prosecution will make in the matter.
In the present case, it is evident that the accused has since changed her mind in regard to how she wishes the trial to proceed. She wishes to have the trial proceed from where the proceedings had reached and not the earlier position that she had taken that the case starts de novo. That is her prerogative. Now that she has no objection to the case proceeding in the manner that she has proposed, this court, in exercise of its jurisdiction under Section 362 and364 of the Criminal Procedure Code, sets aside the order earlier issued by Hon. Brian Khaemba on 20th February 2014 directing that the case begins de novo. The trial magistrate shall be at liberty to proceed with the case from where the previous magistrate ceased to exercise jurisdiction. It is so ordered.
DATED AT NAIROBI THIS 3RD DAY OF AUGUST 2016
L. KIMARU
JUDGE