[2017] KEHC 229 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT EMBU

CRIMINAL REVISION NO. 95 OF 2017

DIRECTOR OF PUBLIC PROSECUTIONS................APPLICANT

VERSUS

GEORGE OTIENO..............................................................ACCUSED

R U L I N G

1. This is an application for revision brought under Section 362 of the Criminal Procedure Code. The accused person was charged with the offence of defilement contrary to Section 8(4) of the Sexual Offences Act. He pleaded not guilty and his case was set down for hearing. He was to be released on bond of Kshs. 100,000/= with one surety or cash bail of Kshs.80,000/=. The accused absconded almost immediately, after release and a warrant of arrest issued.

2. The application seeks for review of directions of the trial magistrate made on 23/08/2017 directing that the prosecution gives communication in writing for withdraw of the case under Section 87(a) of the Criminal Procedure Code.

3. Three different investigating officers had been summoned to court severally to explain why they had not executed the warrant of arrest for a period of over one year. The explanation given was similar in respect of three officers who were summoned at different times. It was to the effect that the accused hails from Nyanza and that the officers were unable to trace him.

4. Immediately after the attendance pursuant to summon of the court of the last officer Cpl. Agnes Njeri of Embu police station, the prosecutor applied to withdraw the case under Section 87(a) of the Criminal Procedure Code. The court noted that such a withdrawal is allowed by the law but called for official communication for the withdrawal of the case.

5. Section 362 of the Criminal Procedure Code empowers this court to revise orders of subordinate courts. It provides:-

The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.

6. The powers of this court in revision are premised on the court satisfying itself that the order made or sentence passed by the subordinate court is incorrect, or based on an illegality, or on an impropriety or that the proceedings are irregular.

7. In the case before me, the magistrate after hearing the prosecutor on the application for withdraw said:-

8. Section 40 of the Sexual Offences Act allows such withdrawal. The court calls for official communication in writing for the withdrawal.

9. It is my considered opinion that the Magistrate had not made any order allowing or refusing withdrawal which may call for revision under Section 362 of the Criminal Procedure Code. The issue of correctness, legality or propriety of any order does not arise in this case.

10. What the court did was to give directions on the withdrawal of the case by calling for official communication.

11. I now proceed to determine whether the directions were irregular in the relevant context. To my understanding, the word “communication” in Concise Oxford English Dictionary is defined as:-

“a letter or message containing information; the means of sending or receiving information, such as telephone lines or computers”.

12. The second definition fits in the context of the directions of the court in that it was calling for official communication to confirm that the withdrawal was authorized by the head of the department in the County under whom the state counsel was working.

13. The case was then set for mention on 15/09/2017 awaiting the official communication. Following these proceedings of 23/08/2017 the prosecution applied for certified proceedings. This revision was filed on 25/08/2017.

14. The issue which arises in this revision is whether the magistrate acted within the law to call for written communication. The applicant argues that there is no requirement for written application to withdraw a criminal case under Section 87(a) of the Criminal Procedure Code.

15. The provisions of Section 87(a) allow withdrawal of the prosecution of a criminal case before the accused makes his defence in which case he/she will be discharged by the court. Such a discharge does not operate as a bar to subsequent charges.

16. In this application, the applicant contends that the court directed that a formal or written application be made to withdraw the matter. This was not the case because the court would have worded it clearly that a formal application be filed.

17. The magistrate, I believe was alive to the fact that the law does not require that a formal or written application is required for withdrawal of prosecution in a criminal case.

18. Section 87(a) does not preclude the court from giving directions as to withdrawal or calling reasons for such withdrawal. The provisions of the law are very clear that the court has a part to play in the withdrawal of a criminal case. The working of the section “with consent of the court” confirms that the court has a part to play.

19. I find no irregularity in the directions given by the court on 23/8/2017 considering the history of the case and the serious nature of the offence.

20. As for the contents of this application, it is noted that its drafter misunderstood the directions of the honourable court that called for official communication and assumed that the prosecution was required to file a formal or written application. It would have been expeditious for the prosecution to comply with the court's directions rather than applying for revision which was bound to take quite a while to determine.

21. I find that this application is misconceived, incompetent and with no basis as regards the provisions of Section 362 of the Criminal Procedure Code.

22. It is accordingly dismissed.

DATED, SIGNED AND DELIVERED AT EMBU THIS 9TH DAY OF NOVEMBER, 2017.

F. MUCHEMI

JUDGE

In the presence of:

Ms. Manyal for the applicant

Accused absent