[2013] KEHC 2269 (KLR)
The court found that the ruling made by the Senior Principal Magistrate on 19/2/2013 was based on incorrect information provided by the prosecution regarding the availability of witnesses. Upon verification, it was established that the witnesses were in fact available, contrary to earlier representations. As a...
Source-derived case information.
- Citation
- [2013] KEHC 2269 (KLR)
- Parties
- Applicant: Michael Kamau Kiige; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 10 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Lower Court Ruling and for Directions Under Section 200 of the Criminal Procedure Code
- Outcome
- application allowed in part
- Legal Topics
- Setting Aside Magistrate Ruling, Section 200 Criminal Procedure Code, Denovo Trial, Variation of Bond Terms
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Michael Kamau Kiige
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Lower Court Ruling and for Directions Under Section 200 of the Criminal Procedure Code
Legal Issues
- 1 Whether the ruling delivered by the Senior Principal Magistrate on 19/2/2013 was based on correct facts.
- 2 Whether the case should start denovo under Section 200 of the Criminal Procedure Code.
- 3 Whether the applicant's bond terms should be varied.
Ratio Decidendi
The court found that the ruling made by the Senior Principal Magistrate on 19/2/2013 was based on incorrect information provided by the prosecution regarding the availability of witnesses. Upon verification, it was established that the witnesses were in fact available, contrary to earlier representations. As a result, the court set aside the earlier ruling and reinstated the order for the case to start denovo under Section 200 of the Criminal Procedure Code. The court also found merit in the applicant's request to vary the bond terms, reducing the surety requirement to Shs.300,000/=, matching the cash bail already granted. There was no evidence of bias by the trial magistrate, so the case...
Court Disposition
application allowed in part
Orders
- The ruling of the Senior Principal Magistrate delivered on 19/2/2013 is set aside.
- The order that the case starts denovo remains in force.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
MISC. APPLICATION (CRIMINAL) NO. 10 OF 2013
(CMCR. CASE NO. 1447/2011 – EMBU)
MICHAEL KAMAU KIIGE..........…...........APPLICANT/APPELLANT
VERSUS
REPUBLIC............................................................RESPONDENT
R U L I N G
This is the undated Notice of Motion filed herein on 29/5/2013 for the following orders.
The Court to give directions on how the trial Court should proceed under Section 200 of the Criminal Procedure Code.
That Court's Ruling delivered on 18/2/2013 be set aside.
All this relates to Embu Chief Magistrate Criminal Case No. 1447/2011. The application is supported by the affidavit of Michael Kamau Kiige the applicant. The State through the investigation officer filed a replying affidavit sworn on 7/2/2013 in which he says he cannot trace the witnesses who had testified.
When the application came for hearing on 5/9/2013 the applicant said he wanted his case to start denovo as witnesses were available. He had even called them using their contact in the witness statements. He also asked the Court to vary his terms of bond as he was unable to raise a surety of Shs.400,000/=.
The State through the learned State Counsel Mr. Wanyonyi submitted that the prosecution had at first thought witnesses were available only to realize later they were not available. This Court directed the investigating officer to get in touch with his witnesses through the contacts in their witness statements and report back to court within 7 days on their availability or otherwise.
At the mention date given, the State indicated that all witnesses were traced and were available save one who was not picking the calls. This is contrary to the information that the prosecution had given to the trial Court and even to this Court. And that being the position, I do not even need to go into the merits and demerits of this application.
The Ruling made on 19/2/2013 by the Senior Principal Magistrate was made based on wrong facts. It is therefore set aside.
The order of the Court issued on 9/11/2012 to the effect that the case starts denovo remains.
There is no evidence of bias by the learned trial Magistrate and I will not therefore transfer the case to another Court.
The applicant faces two counts viz
- Count 1 – Stealing a motor vehicle valued at Shs.650,000/=.
- Count 2 – obtaining money (Shs.420,000/=) by false pretences.
He was given a cash bail of Shs.300,000/=. The bond terms are hereby varied. He may be released upon executing a bond of Shs.300,000/= with a surety in similar sum. Mention on 25/9/2013 before the trial Court for fixing a hearing date.
DELIVERED, DATED AND SIGNED AT EMBU THIS 24TH DAY OF SEPTEMBER 2013.
H.I. ONG’UDI
JUDGE
In the presence of:-
Ms. Ingahizu for State
Applicant
Njue CC