[2013] KEHC 6063 (KLR)

[2013] KEHC 6063 (KLR)

The High Court found that the proceedings before the trial court were instituted in contravention of section 35 of the Anti-Corruption and Economic Crimes Act, as the required report and recommendation from the EACC to the DPP had not been made prior to prosecution. Following the precedent set in Nicholas Muriuki...

Source-derived case information.

Citation
[2013] KEHC 6063 (KLR)
Parties
Applicant: Republic; Respondent: Jared Wakhule Tubei; Respondent: Maryflorence Wander
Court
High Court
Court Station
High Court at Bungoma
Jurisdiction
Kenya
Judgment Date
18 March 2013
Case Number
Revision Case 26 of 2012
Procedural Posture
Criminal Revision / Ruling on Prosecution's Application for Revision of Trial Court's Order Refusing Withdrawal of Charges
Outcome
Application for revision allowed; trial court's order quashed; charges terminated without acquittal; liberty to reinstitute charges preserved.
Legal Topics
Revisionary Jurisdiction, Prosecution Discontinuance, Anti Corruption Proceedings, Public Interest Considerations
Source Language
english
Criminal Law Administrative Law Revisionary Jurisdiction Prosecution Discontinuance Anti Corruption Proceedings Public Interest Considerations

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Summary, issues, holding and outcome

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Parties

Republic

Applicant

Jared Wakhule Tubei

Respondent

Maryflorence Wander

Respondent

Procedural Posture

Criminal Revision / Ruling on Prosecution's Application for Revision of Trial Court's Order Refusing Withdrawal of Charges

Legal Issues

  1. 1 Whether the trial court erred in refusing the prosecution's application to withdraw charges under section 87(a) of the Criminal Procedure Code.
  2. 2 Whether criminal proceedings instituted contrary to the Anti-Corruption and Economic Crimes Act are a nullity and should be terminated.
  3. 3 Whether the discontinuance of proceedings should result in an acquittal or leave room for future prosecution.

Ratio Decidendi

The High Court found that the proceedings before the trial court were instituted in contravention of section 35 of the Anti-Corruption and Economic Crimes Act, as the required report and recommendation from the EACC to the DPP had not been made prior to prosecution. Following the precedent set in Nicholas Muriuki Kangangi v Attorney General, such proceedings are a nullity and cannot be legally continued. The trial court erred in refusing the prosecution's application to withdraw the charges and in ordering the case to proceed. The High Court emphasized that discontinuance of proceedings in such circumstances should not result in an acquittal unless the prosecution had closed its case,...

Court Disposition

Application for revision allowed; trial court's order quashed; charges terminated without acquittal; liberty to reinstitute charges preserved.

Orders

  • The charges before the Magistrate's court are forthwith terminated, the charges not having been brought to court in accordance with the Anti-Corruption and Economic Crimes Act.
  • The termination does not prevent the EACC from complying with the provisions of the Act and the DPP reinstituting the charges should it be deemed necessary.