[2012] KEHC 493 (KLR)
The court held that in criminal proceedings, the right to address the court on the release of an exhibit is reserved for the prosecutor and the accused's counsel. Advocates holding a watching brief for the complainant, as well as counsel for an interested party, do not have standing to make submissions on such...
Source-derived case information.
- Citation
- [2012] KEHC 493 (KLR)
- Parties
- Applicant: Francis Ogoti Otundo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Revision Case 397 of 2012
- Procedural Posture
- Criminal Revision / Revision of Interlocutory Order Regarding Submissions on Release of Exhibit
- Outcome
- Order of the Principal Magistrate allowing counsel for interested party and counsel watching brief for the complainant to submit on release of the vehicle is revised and set aside.
- Judges
- RPV Wendoh
- Legal Topics
- Release of Exhibits, Role of Prosecutor, Watching Brief, Interested Party Status
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Francis Ogoti Otundo
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Revision of Interlocutory Order Regarding Submissions on Release of Exhibit
Legal Issues
- 1 Whether counsel for an interested party and counsel watching brief for the complainant can submit on the release of an exhibit in a criminal trial.
- 2 Who is entitled to address the court on the release of a motor vehicle that is an exhibit in a criminal case.
Ratio Decidendi
The court held that in criminal proceedings, the right to address the court on the release of an exhibit is reserved for the prosecutor and the accused's counsel. Advocates holding a watching brief for the complainant, as well as counsel for an interested party, do not have standing to make submissions on such matters. Their participation is limited to ensuring justice for those they represent, and any communication with the court must be channeled through the prosecutor. Allowing them to directly participate in submissions on the release of exhibits would introduce confusion and undermine the orderly conduct of criminal trials. The court therefore revised the lower court's order to...
Court Disposition
Order of the Principal Magistrate allowing counsel for interested party and counsel watching brief for the complainant to submit on release of the vehicle is revised and set aside.
Orders
- Only the prosecutor and accused's counsel are permitted to make submissions on the release of the subject motor vehicle.
- Order of Hon. Kombo, Principal Magistrate, dated 24/10/2012, is revised accordingly.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
High Court at Nakuru
Revision Case 397 of 2012 [if gte mso 9]><xml>
800x600
</xml><![endif][if gte mso 9]><xml>
Normal 0
false false false
EN-GB X-NONE X-NONE
MicrosoftInternetExplorer4
</xml><![endif][if gte mso 9]><![endif][if gte mso 10]> <style> /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-style-parent:""; font-size:10. 0pt;"Times New Roman","serif";} </style> <![endif]
FRANCIS OGOTI OTUNDO………………...………...APPLICANT
VERSUS
REPUBLIC…………………………………...……..RESPONDENT
REVISION ORDER
Francis Ogoti Otundo faces the following charges before the Chief Magistrate’s Court, Nakuru:-
1. Stealing motor vehicle contrary to Section 278A of the Penal Code;
2. Making a document without authority contrary to Section 357(a) of the Penal Code;
3. Uttering a false document contrary to Section 353 of the Penal Code.
This case is partly heard before Hon. F. Kombo (Principal Magistrate). At the centre of the controversy is motor vehicle registration number KAX 751C. It seems that during the hearing of this matter, the question has arisen as to whether the motor vehicle can be released to one of the parties. I have seen the quoram on record, apart from the trial magistrate, is the prosecutor IP Chacha, Mr. Musembi for an Interested Party, Mr. Mongeri watching brief for the complainant and Mr. Cheche for the accused. On 24/10/2012, the court adjourned the matter to 7/9/2012, for submissions to be made by the parties on whether or not the vehicle should be released and to who it should be released.
In a criminal case, the prosecutor represents the Attorney General on behalf of the State. An advocate watching brief for the complainant has no role in the prosecution of the case and cannot therefore address the court on how to determine a particular issue. On the other hand, an Interested Party is not known to criminal proceedings. The two counsel watching brief for the complainant and Interested Party can only speak through the prosecutor, and their duty is to ensure that justice is done to those they represent. Article 50(7) of the Constitutionprovides that in the interest of justice, a court may allow an intermediary to assist a complainant or an accused person to communicate with the court. I believe that if the complainant or accused person is unable to articulate or explain herself well, then an intermediary can be allowed to do so. That is how far an intermediary can go, but such persons cannot throw themselves into the arena of determining how the court will deal with an exhibit. Such submissions must be left to the prosecutor and the counsel for the accused person. This is not a private prosecution and if the court were to allow strangers into the case, it will be a muddle and the ends of justice may not be met. For that reason, I revise the order of Hon. Kombo, Principal Magistrate, dated 24/10/2012, allowing counsel for an “Interested Party” and counsel watching brief for the complainant to submit on the release of the subject motor vehicle. I direct that only the prosecutor and accused’s counsel should do so. It is so ordered
DATED and DELIVERED this 14th day of November, 2012.
R.P.V. WENDOH
JUDGE
PRESENT:
N/A for the State
N/A for the complainant
Mr. Musembi for the Interested Party
Kennedy – Court Clerk