[2013] KEHC 3291 (KLR)
The trial magistrate erred in discharging the accused under Section 202 of the Criminal Procedure Code for non-attendance by the investigating officer, as this section only applies to non-attendance by the complainant. In this case, the complainant had already testified and the prosecutor was present in court. The...
Source-derived case information.
- Citation
- [2013] KEHC 3291 (KLR)
- Parties
- Applicant: Daniel Muchiri Ngige; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Revision Case 5 of 2013
- Procedural Posture
- Criminal Revision / Order on Revision
- Outcome
- Order of discharge set aside; trial to proceed as directed by the trial court.
- Judges
- RPV Wendoh
- Legal Topics
- Revisionary Jurisdiction, Criminal Procedure Code Section 202, Criminal Procedure Code Section 364, Discharge of Accused, Acquittal for Non Attendance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Muchiri Ngige
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Order on Revision
Legal Issues
- 1 Whether the trial magistrate erred in discharging the accused under Section 202 of the Criminal Procedure Code for non-attendance by the investigating officer.
- 2 Whether the discharge order was proper when the complainant had already testified and the prosecutor was present in court.
Ratio Decidendi
The trial magistrate erred in discharging the accused under Section 202 of the Criminal Procedure Code for non-attendance by the investigating officer, as this section only applies to non-attendance by the complainant. In this case, the complainant had already testified and the prosecutor was present in court. The proper procedure would have been for the court to require the prosecution to close its case if unable to call further witnesses, and then determine whether the accused had a case to answer based on the evidence already on record. The High Court, exercising its revisionary jurisdiction under Section 364 of the Criminal Procedure Code, set aside the discharge order and directed...
Court Disposition
Order of discharge set aside; trial to proceed as directed by the trial court.
Orders
- The magistrate’s order discharging the accused under Section 202 of the Criminal Procedure Code is set aside.
- The trial is to proceed as the trial court will direct.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
High Court at Nakuru
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14. 00
800x600
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DANIEL MUCHIRI NGIGE..............................................APPLICANT
VERSUS
REPUBLIC..................................................................RESPONDENT
ORDER ON REVISION
Revision under Section 362 and 364 of the Criminal Procedure Code. This file Criminal Case 2131/12, Rep. v Daniel Muchiri Ngige, has been placed before me by the trial magistrate who states that she erred by discharging the accused under Section 202 of the Criminal Procedure Code for non attendance by one PC Hassan who is the Investigation Officer in the matter.
When the trial magistrate made the order, four witnesses had already testified and the prosecutor was in court and it was therefore an error for the court to discharge the accused under Section 202 of the Criminal Procedure Code for non attendance by PC Hassan. Section 202 of the Criminal Procedure Code allows the court to acquit an accused person for non attendance by the complainant. In this case, the complainant had testified and the prosecutor was in court on behalf of the State. If the prosecution was not able to call any other witness, the court should have asked the prosecutor to close his case and the court would then have ruled on whether or not the accused had a case to answer based on the evidence already on record.
It is confirmed that no warrant has been issued and the accused is still held in remand. In exercise of my revisionary powers under Section 364 of the Criminal Procedure Code, I hereby set aside the magistrate’s order discharging the accused pursuant to Section 202 of the Criminal Procedure Code. I direct that the trial do proceed, as the trial court will direct. It is so ordered.
DATED this 25th day of April, 2013.
R.P.V. WENDOH
JUDGE