[2016] KEHC 812 (KLR)
The court found that the subordinate court failed to comply with the mandatory provisions of Section 200(3) of the Criminal Procedure Code after the transfer of the trial magistrate, as the accused was not informed of his right to have witnesses resummoned and reheard. Additionally, the accused was put on his...
Source-derived case information.
- Citation
- [2016] KEHC 812 (KLR)
- Parties
- Applicant: Musyoka Mwanzi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kitui
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application 13 of 2016
- Procedural Posture
- Criminal Miscellaneous Application / Revision
- Outcome
- proceedings set aside; retrial ordered
- Judges
- LN Mutende
- Legal Topics
- Revision of Criminal Proceedings, Transfer of Magistrates, Section 200 Criminal Procedure Code, Section 211 Criminal Procedure Code
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Musyoka Mwanzi
Applicant
Republic
Respondent
Procedural Posture
Criminal Miscellaneous Application / Revision
Legal Issues
- 1 Whether the proceedings before the subordinate court were regular, legal, and proper in light of the transfer of magistrates.
- 2 Whether the requirements of Section 200(3) of the Criminal Procedure Code were complied with after the transfer of the trial magistrate.
- 3 Whether the accused was properly put on his defence before the prosecution closed its case.
Ratio Decidendi
The court found that the subordinate court failed to comply with the mandatory provisions of Section 200(3) of the Criminal Procedure Code after the transfer of the trial magistrate, as the accused was not informed of his right to have witnesses resummoned and reheard. Additionally, the accused was put on his defence before the prosecution had closed its case, contrary to Section 211 of the Criminal Procedure Code. These procedural errors vitiated the trial, rendering the proceedings irregular and improper. Consequently, the court set aside the impugned proceedings and ordered that the matter be heard afresh before a different magistrate.
Court Disposition
proceedings set aside; retrial ordered
Orders
- The proceedings before the subordinate court are set aside.
- The matter is to be heard de novo before Hon. R. Ombata, Resident Magistrate.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITUI
CRIMINAL MISC. APPLICATION NO. 13 OF 2016
MUSYOKA MWANZI...........APPLICANT
VERSUS
REPUBLIC.......................RESPONDENT
ORDER ON REVISION
1. This file has been placed before me pursuant to the provisions of Section 362of the Criminal Procedure Code.I am obligated to examine the record of proceedings before the subordinate court to satisfy myself of the correctness, legality or propriety and regularity of the proceedings of the court.
2. The circumstances of this case are that the matter was initially heard by Hon. Kibiru, Ag. Chief Magistrate.Prior to being transferred he had directed that the Complainant in the matter who had not been declared a vulnerable witness be availed in court for purposes of testifying. When the matter went before Hon. Rose Ombata, Resident Magistrateshe complied with Section 211of the Criminal Procedure Codewhereafter the Accused indicated that he wished the matter to proceed from where it had reached.
3. On the 20th May, 2015the matter was placed before Hon. Lesootia, Senior Resident Magistratewho complied with Section 211of the Criminal Procedure Codeand put the Accused on his defence. Thereafter the Accused absconded. Hon. Lesootia, Senior Resident Magistratewas subsequently transferred and Hon. R. Ombata, Resident Magistratetook over the matter whereafter she noted the anomaly.
4. Section 200(3)of the Criminal Procedure Codeprovides thus:
“(3) Where a succeeding magistrate commences the hearing of proceedings
and part of the evidence has been recorded by his predecessor, the accused person may demand that any witness be resummoned and reheard and the succeeding magistrate shall inform the accused person of that right.”
5. Following the transfer of Hon. Kibiru, Ag. Chief MagistrateJudicial Officers who took over the matter from him ought to have complied with Section 200(3)of the Criminal Procedure Code.This was not done.
6. It is important to note that Hon. Lesootia, Senior Resident Magistratepurported to comply with Section 211of the Criminal Procedure Codeprior to the Prosecution closing its case as required by the law.
7. The trial was vitiated by the error made by the learned Magistrates. In the premises I set aside proceedings that were not proper in the circumstances and order the matter to be heard denovo before Hon. R. Ombata, Resident Magistrate.
8. It is so ordered.
Dated, Signedand Deliveredat Kituithis 12thday of October,2016.
L. N. MUTENDE
JUDGE