[2018] KEHC 4755 (KLR)
The court found that the succeeding magistrate, Hon. Mokoross, SRM, did not comply with Section 200 of the Criminal Procedure Code when he took over the trial from Hon. Munyendo, RM. This omission was a fundamental procedural irregularity that invalidated the conviction and sentence. However, given that the case was...
Source-derived case information.
- Citation
- [2018] KEHC 4755 (KLR)
- Parties
- Appellant: Edward Abuga Mirioba; Appellant: Hebron Ontweka Meriaba; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 16 & 17 of 2017
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- conviction and sentence quashed; retrial ordered
- Legal Topics
- Robbery With Violence, Criminal Procedure, Section 200 Criminal Procedure Code
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Edward Abuga Mirioba
Appellant
Hebron Ontweka Meriaba
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the trial magistrate complied with Section 200 of the Criminal Procedure Code when taking over the matter from the previous magistrate.
- 2 Whether the conviction and sentence can stand in light of the procedural irregularity.
Ratio Decidendi
The court found that the succeeding magistrate, Hon. Mokoross, SRM, did not comply with Section 200 of the Criminal Procedure Code when he took over the trial from Hon. Munyendo, RM. This omission was a fundamental procedural irregularity that invalidated the conviction and sentence. However, given that the case was not very old and there was serious evidence against the appellants, the court determined that the appropriate remedy was not an acquittal but an order for retrial. The appellants were to remain in custody and be presented for a fresh plea at the Kilgoris Magistrate’s Court.
Court Disposition
conviction and sentence quashed; retrial ordered
Orders
- The appeal is allowed.
- The conviction and sentence are quashed.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CRIMINAL APPEAL NO. 16 OF 2017
CONSOLIDATED WITH
CRIMINAL APPEAL NO. 17 OF 2017
EDWARD ABUGA MIRIOBA................1ST APPELLANT
HEBRON ONTWEKA MERIABA....... 2ND APPELLANT
VERSUS
REPUBLIC.................................................. RESPONDENT
(Appeal from the original conviction and sentence of Hon. A.K Mokoross – SRM dated 11th November 2016 at the Principal Magistrate’s Court at Kilgoris in Criminal Case No. 1256 of 2014)
JUDGMENT
The appellants, EDWARD ABUGA MIRIOBA and HEBRON ONTWEKA, were charged with three counts of robbery with violence contrary to section 296(2) of the Penal Code (Chapter 63 of the Laws of Kenya). The trial commenced before Hon. Munyendo, RM who heard the key identification witnesses. When Mokoross, SRM took over the matter, he did not comply with the provisions of Section 200 of the Criminal Procedure Code (Chapter 75 of the Laws of Kenya).
In the circumstances, I am constrained to allow the appeal and quash the conviction and sentence. However as the matter is not very old and there is serious evidence against the appellants, I order a retrial. The accused shall remain in custody and shall be taken to Kilgoris Magistrate’s Court to take fresh plea on 14th August 2018.
Dated and delivered at Kisii this 9th day of August 2018.
D.S MAJANJA
JUDGE
Mr. Otieno, Senior Prosecution Counsel, instructed by Office of Director of Prosecutions.
Appellants in person.