[2018] KEHC 6389 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

CRIMINAL REVISION NO. 309 OF 2017

DIRECTOR OF PUBLIC PROSECUTIONS........................1ST APPLICANT

PHINEAS KIRIMI AITHIMA...............................................2ND APPLICANT

VERSUS-

REPUBLIC..................................................................................RESPONDENT

PAULINE MWAKASIO................................................INTERESTED PARTY

R U L I N G

1. By a Notice of Motion dated 6th December, 2017 brought pursuant to Section 362 as read with Section 364 of the Criminal Procedure Code CAP 75 of the Laws of Kenya, the applicants have sought the revision of the orders of the trial court terminating Maua CMCC No. 4371 of 2014 Republic versus Paulina Mwakasio under Section 210 of the Criminal Procedure Code CAP 75 of the Laws of Kenya, made on 22nd November, 2017.

2. The application was supported by an affidavit sworn by the 2nd Applicant Phineas Kirimi Aithima in which he deposed, inter alia, that he was the complainant in the Maua CMCR. Case No. 4371 of 2014. That on 29th October, 2014, he had registered a complaint at Laare police station against the interested party Pauline Mwakasio, of malicious damage to property whereupon the interested party was arraigned in court on 31st November 2014. He further deposed that all along he had been religiously attending court and only failed twice on medical grounds and that dismissal of his case on circumstances that were not of his own making was unjustified and unfair.

3. He further contended that as the record would bear him witness, the accused was largely to blame for the delay of the case and that he was clearly committed and determined to have the case heard and determined expeditiously.

4. It was submitted by Mr. Namiti, Learned Counsel for the applicants that as the record would show, on 22nd November 2017, the prosecutor told the court that the complainant was far and sick and applied for adjournment which was not objected to by the accused. However, the court recorded that the prosecution was on a final adjournment which had been granted on 13th February, 2017 and declined the adjournment. Counsel urged that the application be allowed.

5. The interested party did not respond to the application despite being served. I have carefully considered the affidavit in support and the submissions of Counsel. I have also perused the trial court record. It is not in dispute that the matter before the trial court was adjourned severally both at the instance of the prosecution and the interested party. The said adjournments were made for reasons on record.

6. On 29th November, 2016, the prosecution sought an adjournment which was granted as a last adjournment and the matter fixed for hearing on 13th April, 2017. On that day, the complainant was in court and he informed the court that his witnesses were not in court although they had agreed to meet in court. Since the prosecutor did not have the police file, he applied to close his case. However, the court recorded that it was giving the prosecution the final chance and fixed the hearing for 4th May, 2017.

7. On the said 4th May, 2017, the prosecution was ready with two witnesses. However, the Interested Party indicated that she was not ready to proceed because the other witnesses of the complainant were not present. Nevertheless, the court indicated that the matter could not be reached and adjourned the matter to 2nd August, 2017 for hearing. On that date, the trial magistrate was on leave and the matter was fixed for mention on 24th August, 2017. On that day, the matter was given a hearing date of 19th October, 2017 when nothing happened and the matter was finally fixed for hearing on 22nd November, 2017 for hearing.

8. On 22nd November, 2017, the prosecutor is recorded to have informed the court that the 2nd applicant was far and sick and therefore sought an adjournment. The Interested Party did not object to the application but the court nevertheless declined that application on the ground that the prosecution was on a final adjournment. That forced the prosecution to close its case and the court acquitted the Interested Party for lack of evidence.

9. I have set out in detail what transpired in court between the 29th November, 2016 when the court gave the prosecution the last adjournment and the 22nd November, 2017 when the case was terminated. Between those dates, the accused was once not ready and twice the court caused the adjournment of the case. That being the case, can it be said that the trial court exercised its discretion judiciously in declining the adjournment sought?

10. It must be remembered that on 4th May, 2017 when the prosecution realized that it was not ready to proceed for lack of police file, the prosecutor rightly applied to close his case. However, the court noting that the complainant was in court granted the final chance. In two latter occasions, the prosecution was not to blame but the accused and the court itself. Can the last adjournment of 29th November, 2016 be said to be holding until 22nd November, 2017 when in between, the court had adjourned the case while the prosecution was ready? I do not think so.

11. In my view, once a last adjournment is given and the matter comes up for hearing and a party given the last chance is ready to proceed on that occasion, the order of last adjournment lapses unless the court so orders. In this regard, if in the meantime the hearing collapses for reason other than that of the offending party, that party cannot subsequently be held on the previously made last adjournment order that was properly honoured.

12. In any event, the prosecution informed the court that the complainant was far and sick. I think that it was imperative for the trial court to interrogate the reason advanced for the failure by the complainant to attend court before calling the prosecution to close its case. In the present case, the trial court fell into serious error when it failed to consider the reason for the complainant’s non-attendance. It could have given a suspended order pending the production of genuine medical records to prove sickness. To the extent that the trial court did not address its mind to the reasons advanced for the adjournment sought, that was an error on its part.

13. For the foregoing reasons, I find that the proceedings of the 22nd November, 2017 were irregular and the order declining adjournment on the ground that there was a last adjournment was likewise irregular. The order terminating the proceedings is hereby set aside. The case is remitted back to Maua Law Courts to be tried by a different court other than the trial court.

Orders accordingly.

DATEDand DELIVERED at Meru this 30th day of May, 2018.

A. MABEYA

JUDGE