[2018] KEHC 9698 (KLR)
The court found that the trial magistrate erred by not allowing the withdrawal of the case in respect of count I after the accused and the complainant had reconciled and compensation had been made. The law encourages reconciliation and alternative dispute resolution in cases of a personal nature, and the complainant...
Source-derived case information.
- Citation
- [2018] KEHC 9698 (KLR)
- Parties
- Applicant: David Ngugi Nganga; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 540 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Withdrawal of Criminal Charges
- Outcome
- Application allowed in respect of count I; trial magistrate's order set aside; directions issued for withdrawal under Section 204 CPC.
- Legal Topics
- Withdrawal of Charges, Reconciliation, Alternative Dispute Resolution, Double Jeopardy
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Ngugi Nganga
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Withdrawal of Criminal Charges
Legal Issues
- 1 Whether the trial magistrate erred in refusing to allow withdrawal of the case after reconciliation between the accused and the complainant.
- 2 Whether the accused would suffer double jeopardy if tried after compensating the complainant and reconciling.
- 3 Whether the requirements for withdrawal under Section 204 of the Criminal Procedure Code were met.
Ratio Decidendi
The court found that the trial magistrate erred by not allowing the withdrawal of the case in respect of count I after the accused and the complainant had reconciled and compensation had been made. The law encourages reconciliation and alternative dispute resolution in cases of a personal nature, and the complainant had sworn an affidavit expressing his intention to withdraw. The refusal to allow withdrawal would subject the accused to double jeopardy. Therefore, the court set aside the magistrate's order and directed that the complainant in count I be allowed to reaffirm his intention to withdraw under oath, after which the withdrawal should be allowed under Section 204 of the Criminal...
Court Disposition
Application allowed in respect of count I; trial magistrate's order set aside; directions issued for withdrawal under Section 204 CPC.
Orders
- The order of the trial magistrate refusing withdrawal of count I is set aside.
- The trial magistrate shall allow the complainant in count I to take oath and reaffirm the affidavit to withdraw the case.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION
MISC. CRIMINAL APP. NO. 540 OF 2018
DAVID NGUGI NGANGA…………….………..……………APPLICANT
VERSUS
REPUBLIC ………………………..……….…………....…RESPONDENT
RULING
1. I have heard both parties on the application dated 17/09/2018. I have also read the original record of proceedings and more particularly to the submissions on the request to withdraw the case. The same was informed by the fact that the Applicant (accused) and the complainant in the trial had since reconciled.
2. In an affidavit sworn by the complainant on 20/03/2018, he averred that he had since been compensated by the accused and the two had reconciled. The prosecution supported this move by a brief dated 18/6/2018.
3. The accused (Applicant) faces two offences; one of grievous harm contrary to Section 234of thePenal code and malicious damage to property contrary to Section 339(1)of the Penal code.
4. The affidavit respecting reconciliation is sworn by one Nemwuel Hamisi Muturi. Both the Constitution and the Criminal Procedure Code encourages reconciliation (Section 176 Criminal Procedure Code) in cases of personal nature and alternative modes of dispute resolution (Article 159(2)(c)).
5. I am of the view that the learned trial magistrate in her ruling made on 14/8/2018 did not take into account this noble principle. Whether or not the accused may have absconded is not the issue. The fact is that he had reconciled with the complainant in count II and compensated him as well. He would then suffer double jeopardy if he were to be tried for the same offence he has restituted the complainant.
6. In that respect, I find the application merited. The learned trial magistrate occasioned an irregularity by not allowing the withdrawal of the case in respect of count I. To that extent, the same is set aside. I substitute it with an order that the learned trial magistrate shall allow the complainant in count I to take oath before her and reaffirm the content of his affidavit intending to withdraw the case. She shall then allow the withdrawal of count I under Section 204 of the Criminal Procedure Code.
7. I make no order as regards Count II as there is no evidence that the complainant therein had presented his/her intention to withdraw the case.
8. Mention on 14/11/2018 before the learned trial magistrate, Hon. Mutuku for compliance with this ruling.
DATED and DELIVERED this 31st day of October, 2018
G.W. NGENYE-MACHARIA
JUDGE
In the presence of;
1. Njau for the Applicant
2. M/s Sigei for the Respondent.