[2018] KEHC 5309 (KLR)
The court found that the trial magistrate exercised discretion in accordance with the law by granting leave to the prosecution to withdraw the manslaughter charge under section 87(a) of the Criminal Procedure Code. There was no evidence of abuse of court process or improper exercise of discretion. The magistrate...
Source-derived case information.
- Citation
- [2018] KEHC 5309 (KLR)
- Parties
- Appellant: Dominic Bosire Otachi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 60 of 2015
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- DAS Majanja
- Legal Topics
- Withdrawal of Charges, Prosecutorial Discretion, Acquittal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dominic Bosire Otachi
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the trial magistrate properly exercised discretion in granting leave to withdraw the manslaughter charge under section 87(a) of the Criminal Procedure Code.
- 2 Whether the appellant ought to have been acquitted instead of the charge being withdrawn.
Ratio Decidendi
The court found that the trial magistrate exercised discretion in accordance with the law by granting leave to the prosecution to withdraw the manslaughter charge under section 87(a) of the Criminal Procedure Code. There was no evidence of abuse of court process or improper exercise of discretion. The magistrate complied with both constitutional and statutory provisions governing prosecutorial withdrawal of charges. The appellate court declined to intervene, noting that the record did not disclose any circumstances warranting interference with the trial court's decision. Accordingly, the appeal was dismissed.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CRIMINAL APPEAL NO. 60 OF 2015
DOMINIC BOSIRE OTACHI .....................................................APPELLANT
VERSUS
REPUBLIC.................................................................................RESPONDENT
(Appeal from the original conviction and sentence of Hon. J.M Njoroge – CM (Ag.) dated 3rd July, 2015 at the Chief Magistrate’s Court at Kisii in Criminal Case No. 338 of 2015)
JUDGMENT
1. This is an appeal against the decision of the trial magistrate granting leave to the prosecution to withdraw a charge of manslaughter against the appellant under section 87(a) of the Criminal Procedure Code (chapter 75 of the Criminal Procedure Code). The reason given was that the post mortem results showed that the deceased died from natural causes.
2. In this appeal the appellant states that the discretion was improperly exercised in light of the fact that there was no evidence. Counsel’s view is that the appellant ought to have been acquitted.
3. Article 157(6) gives the Office of the Director of Public Prosecutions the power to commence criminal proceedings and to withdraw them at any stage. Under Article 157(6) if the discontinuance takes place after the close of the prosecution case, the accused shall be acquitted. This provision is restated in Section 87(a) and (b) of the Criminal Procedure Code.
4. The question then is whether the trial magistrate erred in the exercise of discretion. I think not. The trial magistrate complied with the law and there is nothing to show that there was an abuse of the court process. I cannot intervene here particularly as the record before me does not disclose all the circumstances of the case. Consequently, the appeal is dismissed.
Dated and delivered at Kisii this 12th day of July2018.
D.S MAJANJA
JUDGE
Mr. Otieno, Prosecution Counsel, instructed by Office of Director of Prosecutions.
Mr. Bosire Gichana for the Appellant.