[2022] KEHC 1307 (KLR)
The court found that the trial magistrate should have allowed the adjournment sought by the accused's counsel, especially since delays in the proceedings were primarily due to the prosecution's failure to supply necessary documents to the defence. Proceeding with the hearing in the absence of the accused's counsel...
Source-derived case information.
- Citation
- [2022] KEHC 1307 (KLR)
- Parties
- Applicant: Mwonga Kalii; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Makueni
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E006 of 2021
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Trial Court Proceedings
- Outcome
- Application for revision allowed. Proceedings and evidence taken on 18/2/2021 set aside. Trial to commence de novo before a different magistrate.
- Judges
- GMA Dulu
- Legal Topics
- Right to Fair Trial, Adjournment of Proceedings, Revisionary Jurisdiction, Representation by Counsel
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mwonga Kalii
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Trial Court Proceedings
Legal Issues
- 1 Whether the trial magistrate erred in declining the application for adjournment by the accused's counsel.
- 2 Whether the accused was denied his constitutional right to legal representation.
- 3 Whether the proceedings and evidence taken in the absence of counsel should be set aside and the trial ordered to commence de novo.
Ratio Decidendi
The court found that the trial magistrate should have allowed the adjournment sought by the accused's counsel, especially since delays in the proceedings were primarily due to the prosecution's failure to supply necessary documents to the defence. Proceeding with the hearing in the absence of the accused's counsel infringed on the accused's constitutional right to representation. Consequently, the court exercised its revisionary jurisdiction to set aside the proceedings and evidence taken on 18/2/2021 and ordered that the trial commence de novo before a different magistrate.
Court Disposition
Application for revision allowed. Proceedings and evidence taken on 18/2/2021 set aside. Trial to commence de novo before a different magistrate.
Orders
- The proceedings and evidence taken by the trial court on 18/2/2021 are set aside.
- The trial shall commence de novo before a magistrate other than J.D Karani – Resident Magistrate.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MAKUENI
HCCR REV. NO. E006 OF 2021
MWONGA KALII ..............................APPLICANT
VERSUS
REPUBLIC ..................................... RESPONDENT
RULING
1. This is a request for revision in a criminal matter, under section 362 as read with section 364 of the Criminal Procedure Code (cap.75), brought to this court by way of a letter dated 25/02/2021 from Isika & Associates advocates for the applicant.
2. The matter relates to the conduct of criminal proceedings in Makindu SPM Criminal Case No. 836 of 2019 Republic –vs- Mwonga Kalii.
3. The complaint brought to this court is that when counsel for the accused person applied for adjournment in the trial court, in order to attend training, the trial magistrate declined to grant adjournment and instead proceeded to hear four (4) witnesses, thus denying the accused person his constitutional right to representation.
4. When this matter came before me on 21/03/2022, Mr. Tanui for the Director of Public Prosecution indicated that he had no objection to the grant of revision orders to have the matter startde-novoas only one witness had testified in the magistrate’s court. Ms. Ongo’nga for the applicant on her part, urged this court to allow the request for revision.
5. Having perused the trial court file and proceedings, I note that only one witness has testified. I agree that the trial magistrate should have allowed the adjournment sought by counsel, as though the case first came to the trial court on 2/9/2019, the main cause of delays up to 18/2/2021, was the prosecution challenges in supplying documents to the defence, such as the medical report (P3 form).
6. I thus find sufficient reason to exercise this court’s powers in revision under section 362 of the Criminal Procedure Act, and set aside the proceedings and evidence taken by the trial court on 18/2/2021. I thus order that the trial commences de-novo for trial before another trial magistrate, not being J.D Karani – Resident Magistrate.
7. In this regard, I order that the magistrate’s case be mentioned before any magistrate in Makindu on 29/03/2022 for directions and de-novo hearing, other than J.D Karani – Resident Magistrate.
DELIVERED, SIGNED & DATED THIS 24TH DAY OF MARCH 2022, IN OPEN COURT AT MAKUENI.
……………………………….
GEORGE DULU
JUDGE