[2024] KEHC 10792 (KLR)
The court found that it was unlawful and highly irregular for the trial court to proceed with the defence hearing before making a determination on whether the prosecution had established a prima facie case against the accused. This procedural lapse violated the accused's right to have the charge dismissed at the...
Source-derived case information.
- Citation
- [2024] KEHC 10792 (KLR)
- Parties
- Applicant: Mary Wairimu Kirigo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E1462 of 2024
- Procedural Posture
- Criminal Revision / Ruling on Revision From Lower Court Proceedings
- Outcome
- Revision allowed; lower court proceedings from 19th February 2024 to 15th July 2024 declared a nullity and expunged; matter remitted for proper determination at close of prosecution's case.
- Judges
- K Kimondo
- Legal Topics
- Criminal Revision, Procedural Irregularity, Right to Fair Trial
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mary Wairimu Kirigo
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Revision From Lower Court Proceedings
Legal Issues
- 1 Whether it was lawful to proceed with the defence before a ruling was made on whether the prosecution had established a prima facie case.
- 2 Whether the accused's right to dismissal of the charge at the close of the prosecution's case was violated.
Ratio Decidendi
The court found that it was unlawful and highly irregular for the trial court to proceed with the defence hearing before making a determination on whether the prosecution had established a prima facie case against the accused. This procedural lapse violated the accused's right to have the charge dismissed at the close of the prosecution's case if no case was made out. Consequently, all proceedings from 19th February 2024 to 15th July 2024 in the lower court were declared a nullity and expunged from the record. The matter was remitted to the trial court to first determine whether a prima facie case had been established at the close of the prosecution's case, in accordance with section 210...
Court Disposition
Revision allowed; lower court proceedings from 19th February 2024 to 15th July 2024 declared a nullity and expunged; matter remitted for proper determination at close of prosecution's case.
Orders
- All proceedings of the lower court from 19th February 2024 to 15th July 2024 are declared a nullity and expunged from the record.
- The trial court shall first determine whether a prima facie case was made out at the close of the prosecution's case.
Full Case Text
Judgment text and source record
25 paragraphs
Kirigo v Republic (Criminal Revision E1462 of 2024) [2024] KEHC 10792 (KLR) (Crim) (19 September 2024) (Ruling)
Neutral citation: [2024] KEHC 10792 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Criminal
Criminal Revision E1462 of 2024
K Kimondo, J
September 19, 2024
Between
Mary Wairimu Kirigo
Applicant
and
Republic
Respondent
Ruling
1. The revision was requested by the learned trial magistrate on 12th September 2024.
2. There have been successive trial magistrates in the lower court. The last prosecution witness (PW5) testified on 4th October 2023 before Hon. A. Nyoike, SPM. The learned trial magistrate directed that the proceedings be typed to enable her to pen a ruling.
3. However, following her transfer, the matter was taken over by Hon. S. Shitubi, CM and later by Hon. G. Onsarigo, SRM. It is instructive that on the accused on all those occasions elected to proceed from where the matter had reached.
4. On 19th February 2024, Hon. G. Onsarigo, SRM then fixed the matter for defence hearing on 15th March 2024 on which date he proceeded to hear the accused on her sworn testimony. Submissions were later filed and the matter set down for judgment on 12th September 2024. On the latter date, the trial magistrate realized that no ruling placing the accused on her defence was ever made and referred the matter to the High Court for revision.
5. Being a revision, and by dint of section 365 of the Criminal Procedure Code,no party has a right to be heard either personally or by an advocate before the High Court when exercising its powers of revision. The ruling was thus reserved to chambers.
6. Section 210 of the Criminal Procedure Code provides as follows-“If at the close of the evidence in support of the charge, and after hearing such summing up, submission or argument as the prosecutor and the accused person or his advocate may wish to put forward, it appears to the court that a case is not made out against the accused person sufficiently to require him to make a defence, the court shall dismiss the case and shall forthwith acquit him."
7. I thus readily find that it was unlawful and highly irregular to proceed with the defence by the accused before the court determined whether the prosecution had established a case sufficient to call for a rebuttal from her. It also violated her right to a dismissal of the charge at that stage.
8. It follows that the revision is merited. I thus order that all the proceedings of the lower court from 19th February 2024 to 15th July 2024 be and are hereby declared a nullity and are expunged from the record. Instead, the trial court shall first make a determination whether at the close of the prosecution’s case, a prima facie case was made out or not.
9. The lower court file shall now be remitted back to the trial court together with a certified copy of this ruling. The Deputy Registrar shall also notify the accused and the Republic of this order.It is so ordered.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 19TH DAY OF SEPTEMBER 2024. KANYI KIMONDOJUDGERuling read in chambers in the presence of-Mr. E. Ombuna, Court Assistant.