[2008] KEHC 2761 (KLR)
The subordinate court erred in acquitting the accused under section 176 of the Criminal Procedure Code, as that provision only allows for stay or termination of proceedings upon a compromise, not an acquittal. The acquittal was based on a mistaken belief that cash bail had been paid and could be released to the...
Source-derived case information.
- Citation
- [2008] KEHC 2761 (KLR)
- Parties
- Applicant: Jacob Wellingtone Ochola; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal Case511 of 2007
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Subordinate Court Decision
- Outcome
- Acquittal quashed; order for stay of proceedings substituted; case revived for further orders by subordinate court.
- Judges
- GMA Dulu
- Legal Topics
- Revision Jurisdiction, Acquittal Vs Termination, Criminal Procedure Code Section 176, Powers of High Court, Compromise of Offences
- 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
Jacob Wellingtone Ochola
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Subordinate Court Decision
Legal Issues
- 1 Whether the subordinate court erred in acquitting the accused under section 176 of the Criminal Procedure Code instead of staying or terminating the proceedings.
- 2 Whether the High Court should exercise its revisionary powers to quash the acquittal and substitute an appropriate order.
Ratio Decidendi
The subordinate court erred in acquitting the accused under section 176 of the Criminal Procedure Code, as that provision only allows for stay or termination of proceedings upon a compromise, not an acquittal. The acquittal was based on a mistaken belief that cash bail had been paid and could be released to the complainant, when in fact the accused was on free bond. The High Court, exercising its revisionary jurisdiction, quashed the acquittal and substituted an order staying the proceedings, thereby reviving the case and allowing the subordinate court to address the proposed settlement appropriately.
Court Disposition
Acquittal quashed; order for stay of proceedings substituted; case revived for further orders by subordinate court.
Orders
- The acquittal by the magistrate is quashed.
- An order for stay of proceedings is substituted in place of the acquittal.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Criminal Case511 of 2007
JACOB WELLINGTONE OCHOLA……………….APPLICANT
VERSUS
REPUBLIC…………….……...…………..............RE SPONDENT
RULING
I have considered the request for revision of the subordinate court’s decision in this Nairobi Chief Magistrates Case No. 482 of 2005 REPUBLIC -VS- JACOB WELLINGTONE OCHOLA. The request was made to this court in writing vide letter dated 23/10/2007, by T.N. Ngugi, Senior Resident Magistrate, Nairobi
The magistrate was requested to terminate the case under section 176 of the Criminal Procedure Code, apparently on the assumption that the accused had paid Kshs.50,000/= cash bail in court, and that the amount would be released to the complainant as part of the compromise. The accused was actually on free bond of the same amount of Kshs.50,000/=, therefore there was no money to pay the complainant. The magistrate, on the erroneous understanding that the amount had been paid in court as cash bail, actually acquitted the accused person.
The acquittal was an error. Section 176 only permitted the magistrate to stay or terminate the proceedings. An acquittal is a totally different thing. The acquittal meant that the court found that the accused did not commit the offence. That was not the position. I will have to quash the acquittal under the revision powers of this court and substitute therefore an order for stay of the proceedings.
Consequently, in exercise of this court’s inherent powers of revision under section 362 and 366 of the Criminal Procedure Code (Cap. 75), I quash the acquittal by the magistrate and substitute therefore an order for stay of the proceedings. This revives the case and gives the subordinate court an opportunity to summon the accused, and make any relevant orders with regard to the proposed settlement.
It is so ordered.
Dated and delivered at Nairobi this 20th February 2008
George Dulu
Judge
In the presence of:–
Mwangi - Court clerk