[2007] KEHC 3450 (KLR)
The court found that the prosecution's termination of the initial case without reasons, followed by the applicant's re-arrest and re-charging for the same offence on the same facts, constituted an abuse of prosecutorial powers and the court process. This conduct amounted to double jeopardy and violated the...
Source-derived case information.
- Citation
- [2007] KEHC 3450 (KLR)
- Parties
- Applicant: Edward Elly Mumbi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- ? 21 of 2007
- Procedural Posture
- Miscellaneous Application / Constitutional Reference From Subordinate Court
- Outcome
- Application allowed. Criminal proceedings terminated.
- Legal Topics
- Double Jeopardy, Abuse of Process, Right to Fair Trial, Nolle Prosequi, Unlawful Detention
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Edward Elly Mumbi
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Constitutional Reference From Subordinate Court
Legal Issues
- 1 Whether the prosecution of the applicant in Eldoret Criminal Case No. 7488/2006 amounts to double jeopardy in view of the previous trial in Kitale SPM Criminal Case No. 984/2004.
- 2 Whether the continuation of the trial infringes section 70(a) of the Constitution of Kenya.
- 3 Whether the applicant is subjected to further legal costs due to the prosecution's termination of the former trial.
Ratio Decidendi
The court found that the prosecution's termination of the initial case without reasons, followed by the applicant's re-arrest and re-charging for the same offence on the same facts, constituted an abuse of prosecutorial powers and the court process. This conduct amounted to double jeopardy and violated the applicant's constitutional rights to a fair trial, protection from arbitrary detention, and freedom from oppression by the state. The court held that the prosecution's use of nolle prosequi in these circumstances was a subterfuge to avoid disclosing the true reasons for their inability to proceed, namely the loss of the police file and unavailability of witnesses. The subsequent...
Court Disposition
Application allowed. Criminal proceedings terminated.
Orders
- Immediate termination of the hearing of Criminal Case No. 7488 of 2006 at Eldoret.
- Quashing of the charge sheet dated 3rd November, 2006.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
Misc Crim Case 21 of 2007
EDWARD ELLY MUMBI……………………………….APPLICANT
=VERSUS=
REPUBLIC……………………..……………………RESPONDENT
JUDGMENT
This is a Reference from the Chief Magistrate’s Court at Eldoret Criminal case No. 7488 of 2006 for the interpretation of the provisions of the Constitution and the determination of questions or issues framed by the said Court. The Court also invoked S. 8 of the Constitution of Kenya (Supervisory Jurisdiction and Protection of Fundamental rights of freedoms of the individual.
The Court framed 4 questions namely:-
(a) Whether the sustenance of Eldoret Criminal Case No. 7488/2006 amounts to double jeopardy on the part of the accused in view of the trial of the same accused in Kitale SPM Criminal Case No. 984/2004.
(b) whether the sustenance of this trial will amount to infringement of section 70 (a) of the Constitution of Kenya
(c) Whether the accused will be made to suffer further costs in terms of legal fees in pursuance of this case whereas the prosecution had terminated the former trial at Kitale Law Courts.
(d) Whether the detention of the accused person for four (4) days upon arrest before charging him in Kitale SPM cr. Case No. 984/2004 infringed upon his rights under section 72 (3) of the Constitution of Kenya.
The Respondent -the Attorney General through Principal state Counsel does not oppose the application. I think that the Attorney General made a wise and correct decision in conceding to the application.
The reasons are very clear. The prosecution in the Kitale case /SRM CR.C. No. 984 of 2004 on their own volition and instance decided to close the case. There was no other reasons given. They exercised the right and discretion as the prosecution to close their case. There was no application for adjournment for any reason and which was refused. There is no coercion, or duress or undue influence by the Court or the Defence. A date was fixed for submissions on whether there was a case to answer or not. On the date given, there was an adjournment at the prosecution’s instance
When the matter resumed on 1/11/2006, the prosecution did the unexpected; they entered a Nolle Proseque terminating the case. No reasons were given. The Court was obliged to accept them under the provisions of the Constitution S.26 and other laws. The Court was not obliged to insist on reasons. The Defence had little say in the matter.
Once this was done, the Accused was discharged and released. The Police arrested him and held in custody for 2 days. He was charged once again for the same offence and on the same facts. Instead of charging him in Kitale, he was charged in the Chief Magistrate’s Court at Eldoret. This gave rise to this Constitutional Reference.
I do hereby find and hold that there was bad faith on the part of the Police and the Prosecution in re-arresting and charging the Applicant. I am of the view that it is an abuse of the process of Prosecution and the instrument of Nolle Prosequi for the Prosecution to enter terminated the case for without giving any reasons and for the Police to re-arrest the Applicant and the prosecution to re-charge him.
It is clear that the true reasons for the termination of the case in the first instance is that the prosecution could not trace their police file from Matunda Police station and to avail the remaining witnesses. There were previous adjournments on this ground. The Prosecution was not sincere to disclose the true reasons and to apply for adjournment. Instead they decided to use their powers of Nolle Prosequi, arrest and prosecution to circumvent the situation. This was truly a subtle subterfuge and an abuse of the Court process.
It amounts to a mockery of justice and contemptuous of the Court. The Courts will not allow to be used as vehicles or instruments to infringe and violate the rights of the individual as protected by the Constitution and the law.
The Court also views the incarceration of the Applicant for 2 days before he was charged as high-handed and oppressive. The Applicant had been on bond throughout the trial for almost 3 years. They ought to have given him a Police bond to appear in Court as there was no need for fresh investigations.
In all, I do hereby answer the 4 questions in the affirmative. To allow a fresh trial in the circumstances of this case would also violate the rights of the Applicant to a speedy and fair trial as envisaged by section 77 of the Constitution.
I have also considered the authorities referred to by the Applicant’s Counsel. I hold that to proceed with the trial would be a violation of the applicant’s fundamental rights and freedoms and therefore unconstitutional.
I therefore order the immediate termination of the hearing of Criminal Case No. 7488 of 2006 at Eldoret and quashing of the charge sheet dated 3rd November, 2006. The Surety and securities be released forthwith.
DATED AND DELIVERED AT ELDORET THIS 7TH DAY OF NOVEMBER 2007.
M.K. IBRAIM,
JUDGE. (7/11/07).