[2022] KEHC 10350 (KLR)
The High Court found that the trial court had properly exercised its discretion in acquitting the accused under section 210 of the Criminal Procedure Code. The trial court had previously accommodated the prosecution's absence on two occasions and had no sufficient reason to further adjourn the matter when the...
Source-derived case information.
- Citation
- [2022] KEHC 10350 (KLR)
- Parties
- Applicant: Director of Public Prosecutions; Respondent: Reuben Abdalla
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 19 of 2019
- Procedural Posture
- Criminal Revision / Judgment
- Outcome
- application for revision dismissed; acquittal of accused upheld
- Judges
- WM Musyoka
- Legal Topics
- Criminal Revision, Acquittal Under Section 210, Absence of Prosecutor, Case to Answer, Trial Court Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Director of Public Prosecutions
Applicant
Reuben Abdalla
Respondent
Procedural Posture
Criminal Revision / Judgment
Legal Issues
- 1 Whether the trial court erred in acquitting the accused under section 210 of the Criminal Procedure Code due to the absence of the prosecutor.
- 2 Whether the absence of the prosecution counsel justified a revision of the acquittal order.
- 3 Whether the trial court properly exercised its discretion in finding no case to answer based on the evidence presented.
Ratio Decidendi
The High Court found that the trial court had properly exercised its discretion in acquitting the accused under section 210 of the Criminal Procedure Code. The trial court had previously accommodated the prosecution's absence on two occasions and had no sufficient reason to further adjourn the matter when the prosecution again failed to attend. There was no credible evidence on record that the trial court had been informed of a shortage of prosecutors or that witnesses were present. The evidence presented by the prosecution was insufficient to establish a case to answer. The applicant's reasons for non-attendance were not plausible, and the responsibility to ensure attendance lay with the...
Court Disposition
application for revision dismissed; acquittal of accused upheld
Orders
- The application for revision is dismissed.
- The decision of the trial court to acquit the accused under section 210 of the Criminal Procedure Code is upheld.
Full Case Text
Judgment text and source record
22 paragraphs
Director of Public Prosecutions v Abdalla (Criminal Revision 19 of 2019) [2022] KEHC 10350 (KLR) (13 May 2022) (Judgment)
Neutral citation: [2022] KEHC 10350 (KLR)
Republic of Kenya
In the High Court at Kakamega
Criminal Revision 19 of 2019
WM Musyoka, J
May 13, 2022
Between
Director of Public Prosecutions
Applicant
and
Reuben Abdalla
Respondent
Judgment
1. Revision herein is sought by the Director of Public Prosecutions, the applicant herein, of an order that was made by the trial court in Kakamega CMCCRC No. 2707 of 2018, on 29th July 2019.
2. The matter came up for hearing on 29th July 2019 before Hon. W Lopokoiyit, Resident Magistrate. The records reflect that the prosecutor was absent. The accused person, who was present, indicated that he was ready to proceed. Faced with that scenario, the court proceeded to consider the evidence on record, of one witness, and found that the same was not sufficient to have the accused placed on his defence, and acquitted him under section 210 of the Criminal Procedure Code, Cap 75, Laws of Kenya.
3. The State was aggrieved, and applied to this court, vide a letter by the Senior Assistant Director of Public Prosecution, Regional Head Kakamega County, Patrick Magero Gumo, dated 30th July 2019, for revision of the decision of the trial court on the basis that:(a)The trial court had conducted the hearing in the absence of the prosecution;(b)The trial court had failed to take notice of the fact that there was a shortage of prosecutors for the Kakamega law courts;(c)The trial court had dismissed the matter under section 210 of the Criminal Procedure Code, cap 75 laws of Kenya, due to non-attendance of prosecution counsel who was then before another court, and despite the court having been alerted of that fact; and(d)Failing to take into account the presence of witnesses and the investigating officer in court.
4. Plea had been taken in the matter on 14th November 2018. Hearing was fixed for 11th February 2019. On 11th February 2019, the applicant presented two witnesses, evidence was recorded from one of them, and the matter was put off to 25th March 2019. On 25th March 2019, the matter did not proceed, as the prosecutor was not available, the court recorded that she/he was unwell, and adjourned the matter to 6th May 2019. On 6th May 2019, the matter was adjourned for lack of a police file, although one witness was said to be in court, the matter was adjourned to 29th July 2019. On 29th July 2019, the prosecutor was not in court, and the accused person was acquitted as narrated above.
5. This case is on all fours withRepublic v Judith Achola Malala [2019] eKLR (Kakamega HCCRC No. 5 of 2019) (Musyoka J), and I hereby adopt the reasoning that was applied in that decision for the purpose of this matter. The trial court had accommodated the State on the two previous occasions when the matter came up for hearing and the State was not ready to proceed. On one occasion, the prosecutor was not available, on the other there was no police file. I note that the accused person was always in court, and he was in custody. Evidence had been recorded from one witness. The court found it insufficient for the purpose of a case to answer, and properly acquitted the accused under section 210 of the Criminal Procedure Code.
6. I do not find the reasons given by the State, for not attending court at the hearing, plausible. It was up to the State to arrange how its matters were to be attended to on account of the shortage of prosecution counsel. There is nothing on record to indicate that the trial court had been appraised of such shortage. There is nothing on record to indicate that there were witnesses present in the court on 29th July 2019. There is also no proof that a prosecutor had been before the court, and had given an indication that he/she was in another court and was on their way to attend to the matter.
7. I find no merit in the revision sought by the prosecution office, and I hereby decline to revise the decision of the trial court to acquit the accused person.
DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 13TH DAY OF MAY 2022WM MUSYOKAJUDGEMr. Erick Zalo, Court Assistant.Mr. Mwangi, instructed by the Director of Public Prosecutions, the applicant.