[2014] KEHC 5375 (KLR)
The court found that the trial magistrate failed to comply with Section 200(3) of the Criminal Procedure Code when taking over the case from a previous magistrate, as the accused was not informed of his right to have witnesses resummoned and reheard. This omission is considered fatal to the proceedings, creating...
Source-derived case information.
- Citation
- [2014] KEHC 5375 (KLR)
- Parties
- Appellant: Evans Ombui Ogachi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 6 of 2014
- Procedural Posture
- Miscellaneous Application / Bail Pending Appeal
- Outcome
- application_allowed
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Bail Pending Appeal, Sexual Offences, Procedural Irregularity
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Evans Ombui Ogachi
Appellant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Bail Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to bail pending appeal.
- 2 Whether non-compliance with Section 200(3) of the Criminal Procedure Code renders the conviction unsafe.
Ratio Decidendi
The court found that the trial magistrate failed to comply with Section 200(3) of the Criminal Procedure Code when taking over the case from a previous magistrate, as the accused was not informed of his right to have witnesses resummoned and reheard. This omission is considered fatal to the proceedings, creating overwhelming chances of success for the appeal. Consequently, the court determined that the applicant should be released on bail pending the hearing of the appeal.
Court Disposition
application_allowed
Orders
- The applicant shall be released on posting cash bail of Kshs. 10,000 or on executing a personal bond of Kshs. 10,000 with one surety of equal sum.
- The applicant must attend the hearing of his appeal.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MISC. APPLICATION NO. 6 OF 2014
EVANS OMBUI OGACHI ………………………………………APPELLANT
VERSUS
REPUBLIC ……………………………………………………RESPONDENT
(From original conviction and sentence in criminal case Number 412 of 2010 in the Chief Magistrate’s Court at Makadara - Before E.W. Oketch on 18th December, 2013)
RULING
The applicant Evans Obui Ogachi was charged with the offence of rape contrary to Section 3 (1) (a) as read with sub section (3) of the Sexual Offences Act No. 3 of 2006. In the alternative he was charged with the offence of indecent act contrary to Section 6 of the same Act. After the full trial he was acquitted of the offence of rape but convicted of the offence of indecent Act and sentenced to five years imprisonment.
He has appealed against the said conviction and now asks this court to release him on bail pending the hearing of the said appeal. The application was argued by way of written submission. The learned counsel for the Republic has conceded the application on the ground that Section 200 of the Criminal Procedure Code was not complied with and that the appeal is likely to succeed but the State will be applying for a retrial.
I have gone through the record before me. The case was first heard by Hon. D. Kinaro, SRM who recorded evidence from 4 witnesses. The record shows further that he was transferred and the case taken over by Hon. W Oketch, R.M. When Hon. Oketch took over the matter he did not comply with Section 200 (3) of the Criminal Procedure Code and proceeded to record the evidence of the remaining witnesses, the defence of the applicant and finally delivered the judgment now appealed from.
The learned trial magistrate was required to inform the accused person of the right to demand that any witness be resummoned and reheard. Any omission in that regard is fatal. With respect, I agree that there are overwhelming chances of success in this appeal on that ground alone.
Accordingly this application is allowed. The applicant shall be released on posting cash bail of Kshs. 10,000/= or on executing a personal bond of Kshs. 10,000/= with one surety of equal sum. He must attend the hearing of his appeal.
Orders accordingly.
SIGNED DATEDandDELIVEREDin court this 17thday of April, 2014.
A.MBOGHOLI MSAGHA
JUDGE