[2015] KEHC 2683 (KLR)
The High Court found that while the Investigating Officer had a duty to avail the police file, he appeared in court on the date specified in the summons and provided a reasonable explanation for his earlier absence. The trial magistrate acted precipitately in imposing a fine without giving the officer an opportunity...
Source-derived case information.
- Citation
- [2015] KEHC 2683 (KLR)
- Parties
- Applicant: Moses Makau; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Revision Case 1 of 2015
- Procedural Posture
- Criminal Revision / Revision Order
- Outcome
- Fine found unwarranted; no further action ordered.
- Judges
- JV Juma
- Legal Topics
- Court Powers on Revision, Duties of Investigating Officer, Judicial Discretion, Sanctions for Noncompliance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Moses Makau
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Revision Order
Legal Issues
- 1 Whether the trial magistrate acted properly in fining the Investigating Officer for failure to avail the police file.
- 2 Whether the explanation given by the Investigating Officer for the absence of the police file was sufficient.
- 3 Whether the fine imposed was warranted in the circumstances.
Ratio Decidendi
The High Court found that while the Investigating Officer had a duty to avail the police file, he appeared in court on the date specified in the summons and provided a reasonable explanation for his earlier absence. The trial magistrate acted precipitately in imposing a fine without giving the officer an opportunity to provide documentary proof of illness or considering the sufficiency of his explanation. Since the officer complied with the summons and there was no evidence of deliberate or malicious intent to delay the trial, the fine was unwarranted. The explanation should have been accepted, and no further punitive action was justified.
Court Disposition
Fine found unwarranted; no further action ordered.
Orders
- No further action to be taken against the Investigating Officer.
- The explanation given by the Investigating Officer is accepted.
Full Case Text
Judgment text and source record
12 paragraphs
IN THE HIGH COURT OF KENYA
AT NAKURU
REVISION NO. 1 OF 2015
MOSES MAKAU....................APPLICANT
VERSUS
REPUBLIC............................RESPONDENT
REVISION ORDER
This matter has been brought before the High Court for review based on a letter written by No.43580, PC Moses Makau seeking review of the orders made by the learned Resident Magistrate on 14/1/2015. I have called for and perused the proceedings in CMCC No.163/2014, R. Vs Vincent Engehere Jaika. The issue involved was the lack of police file. During the trial on 22/12/2014, the court prosecutor indicated that he did not have a police file. The court issued a warrant of arrest for the Investigating Officer and directed that the matter be mentioned on 12/1/2015. On 12/1/2015, the record shows that again the court prosecutor indicated that he had no police file. The trial court then issued a warrant of arrest against the OCS, Nakuru to be executed by the OCPD and directed that the matter be mentioned on 21/1/2015. Before that date on 14/1/2015, the matter came up before the trial court. On that day the Investigating Officer, PC, Makau was present in court with the police file. He explained to court why the file had not been availed on the earlier dates. The trial magistrate rejected that explanation and slapped the Investigating Officer with a fine of Kshs.5,000/- with no default sentence. While it is true that the Investigating Officer has a duty to avail the police file in court on hearing dates, I find that in this matter the trial magistrate may have acted a bit precipitately. The matter was due to be mentioned on 21/1/2015, for the warrant of arrest to be effected. Before this date, on 14/1/2015, the Investigating Officer did appear in court together with the police file.
I have perused the summons issued to the Investigating Officer and I note that it is dated 15/12/2014 and directed him to appear in court on 14/1/2015. The Investigating Officer did appear in court on 14/1/2015 in obedience to the summons. The Investigating Officer gave a reasonable explanation for the failure to avail the police file. In the circumstances, his explanation ought to have been sufficient. If the court required documents to prove his illness then the court ought to have allowed the officer a chance to avail such proof. Given that on 14/1/2015 the police file was availed as ordered and in the absence of proof of any deliberate, malicious or intentional acts by the Investigating Officer to derail and/or delay the trial, I feel that the Kshs.5,000/- fine was unwarranted. The trial court ought to have accepted the explanation given by the Investigating Officer. I note that the fine has already been paid and receipted for. The Investigating Officer has been released from the cells. In the circumstances no further action is warranted.
MAUREEN A. ODERO
JUDGE
15/1/2015