[2017] KEHC 4978 (KLR)
The court found that the learned magistrate erred in allowing the prosecution to re-open its case and amend the charge sheet after the prosecution had already closed its case. The applicable law for amending a charge sheet in subordinate courts is section 214(1) of the Criminal Procedure Code, which only permits...
Source-derived case information.
- Citation
- [2017] KEHC 4978 (KLR)
- Parties
- Appellant: Mathew Ogutu Barasa; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 7 of 2017
- Procedural Posture
- Criminal Appeal / Ruling on Interlocutory Appeal Regarding Amendment of Charge Sheet
- Outcome
- Appeal allowed; magistrate's ruling quashed.
- Judges
- KW Kiarie
- Legal Topics
- Amendment of Charge Sheet, Reopening of Prosecution Case, Criminal Procedure Code Interpretation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mathew Ogutu Barasa
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Interlocutory Appeal Regarding Amendment of Charge Sheet
Legal Issues
- 1 Whether the prosecution could lawfully re-open its case to amend the charge sheet after closing its case.
- 2 Whether the magistrate applied the correct statutory provision in allowing the amendment.
Ratio Decidendi
The court found that the learned magistrate erred in allowing the prosecution to re-open its case and amend the charge sheet after the prosecution had already closed its case. The applicable law for amending a charge sheet in subordinate courts is section 214(1) of the Criminal Procedure Code, which only permits such amendment before the close of the prosecution's case. Section 275(2) is inapplicable as it governs High Court trials. Furthermore, section 212, which allows the prosecution to adduce evidence in reply, was not available since the appellant had not introduced any new matters in his defence. Therefore, the magistrate's ruling was erroneous and was quashed, and the trial was...
Court Disposition
Appeal allowed; magistrate's ruling quashed.
Orders
- The ruling of the learned magistrate allowing the prosecution to re-open its case and amend the charge sheet is quashed.
- The appellant to proceed with his trial to the conclusion.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUSIA
CRIMINAL APPEAL NO. 7 OF 2017
MATHEW OGUTU BARASA..............................APPELLANT
VERSUS
REPUBLIC.......................................................RESPONDENT
(From the ruling in criminal case No.1027 of 2015 of the Chief
Magistrate’sCourt at Busia by Hon. C.I Agutu – Resident Magistrate)
RULING
On 17th January, the Hon. C.I Agutu delivered a ruling where she allowed the prosecution to re-open their case to amend the charge sheet. The application was brought under section 275(2) of the Criminal Procedure Code. The appellant was aggrieved by the ruling and therefore filed this appeal.
The state through Mr. Obiri learned counsel opposed the appeal and contended that section 275(2) of the Criminal Procedure Code allowed the prosecution to amend the charge sheet at any time.
Section 275(2) of the Criminal Procedure Code was not the applicable section. This section can only be invoke if the trial was at the High Court. It falls under Part IX which provides for procedure in trials before the High Court. The right section for the amendment before the subordinate Courts is section 214 of the C.P.C. Subsection (1) states as follows:
Where, at any stage of a trial before the close of the case for the prosecution,
it appears to the court that the charge is defective, either in substance or in form, the court may make such order for the alteration of the charge, either by way of amendment of the charge or by the substitution or addition of a new charge, as the court thinks necessary to meet the circumstances of the case:
It is worth noting that this section can only be invoked if the prosecution has not closed their case. In the instant case this section was not available to the prosecution for on 10th November 2016 the prosecution closed their case.
The only instance where the prosecution is allowed to re-open their case is that envisaged under section 212 of the Criminal procedure code. It provides as follows:
If the accused person adduces evidence in his defence introducing a new matter which the prosecutor could not by the exercise of reasonable diligence have foreseen, the court may allow the prosecutor to adduce evidence in reply to rebut that matter.
This section was not open to the prosecution for the appellant had not adduced any evidence in his defence. Had he done so, for the prosecution to be entitled to the benefits of this section, it must be demonstrated to the satisfaction of the court that he had introduced new matters which the prosecutor could not by the exercise of reasonable diligence have foreseen.
I therefore find that the ruling of the learned magistrate was erroneous. The same is quashed. The appellant to proceed with his trial to the conclusion.
DELIVEREDandSIGNEDatBUSIAthis21stdayof June, 2017
KIARIE WAWERU KIARIE
JUDGE