[2024] KEHC 4680 (KLR)
The High Court found that the trial court committed an error by delivering a ruling on a case to answer based solely on the original charge sheet, despite the existence of an amended charge sheet with four counts. The evidence presented at trial related to all four counts, and the failure to consider the amended...
Source-derived case information.
- Citation
- [2024] KEHC 4680 (KLR)
- Parties
- Applicant: ODPP; Respondent: Rosemary Atieno Abuto
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Judgment Date
- 3 April 2024
- Case Number
- Criminal Revision E071 of 2024
- Procedural Posture
- Criminal Revision / Ruling on Revision Application
- Outcome
- trial court ruling set aside; matter remitted for fresh ruling on all counts
- Judges
- RE Aburili
- Legal Topics
- Revisionary Jurisdiction, Case to Answer, Amended Charge Sheet, Supervisory Powers
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
ODPP
Applicant
Rosemary Atieno Abuto
Respondent
Procedural Posture
Criminal Revision / Ruling on Revision Application
Legal Issues
- 1 Whether the trial court erred by delivering a ruling on a case to answer based only on the original charge sheet instead of the amended charge sheet with four counts.
- 2 Whether the High Court should exercise its revisionary jurisdiction to set aside the trial court's ruling and direct a fresh ruling on all counts.
Ratio Decidendi
The High Court found that the trial court committed an error by delivering a ruling on a case to answer based solely on the original charge sheet, despite the existence of an amended charge sheet with four counts. The evidence presented at trial related to all four counts, and the failure to consider the amended charge sheet resulted in an incomplete and erroneous ruling. Exercising its supervisory revisionary jurisdiction under Sections 362 and 364 of the Criminal Procedure Code and Article 165(6) and (7) of the Constitution, the High Court set aside the trial court's ruling and directed the trial court to deliver a fresh ruling on whether the accused has a case to answer on all four...
Court Disposition
trial court ruling set aside; matter remitted for fresh ruling on all counts
Orders
- The ruling and order made on 26th February 2024 by Hon. Dr. D. Ogoti on case to answer is set aside.
- The trial court is directed to set a date for delivery of a fresh ruling on whether the accused Rosemary Atieno Abuto has a case to answer on all four counts as per the amended charge sheet.
Full Case Text
Judgment text and source record
27 paragraphs
ODPP v Abuto (Criminal Revision E071 of 2024) [2024] KEHC 4680 (KLR) (3 April 2024) (Ruling)
Neutral citation: [2024] KEHC 4680 (KLR)
Republic of Kenya
In the High Court at Kisumu
Criminal Revision E071 of 2024
RE Aburili, J
April 3, 2024
Between
Odpp
Applicant
and
Rosemary Atieno Abuto
Respondent
(From the original Kisumu Chief Magistrate’s Court Criminal Case No. E202 of 2020 at Kisumu)
Ruling
1. This file was opened on 26th March 2024 following the order issued on 26th March 2024 by Hon. Dr. D. Ogoti, Chief Magistrate in Kisumu Chief Magistrate Criminal Case No. E202 of 2020 - Republic versus Rosemary Atieno Abuto.
2. The order followed the Ruling by the Hon. Chief Magistrate wherein he, in the case before him, rendered a ruling on a case to answer against the accused person on 26th February 2024 based on one charge or count only as per the initial charge sheet dated 27th November 2020.
3. Immediately the Ruling was delivered, the prosecution counsel reminded the court that there was an amended charge sheet, which had more counts and which the trial court had not considered in the Ruling of 26th February 2024.
4. That latter charge sheet is dated 16th June 2021 and it has four counts as shown by the annexture to the Ruling of 26th March 2024 submitted to this court.
5. The trial court therefore invoked the provisions of Sections 362 and 364 of the Criminal Procedure Code and directed that the file be placed before me to exercise revisionary jurisdiction in respect of the cited provisions, so that the trial court can proceed to deliver a wholesome ruling on the four counts facing the accused person.
6. I cannot agree more that there was an inadvertent error on the face of the record when the trial court rendered a ruling on a case to answer based on one count of a charge sheet which had been substituted much earlier, thereby leaving out the other three counts yet the evidence adduced was in reference to the four counts as per the amended charge sheet of 16th June 2021.
7. That being the case, and pursuant to the Provisions of Section 362 and 364 of the Criminal Procedure Code, I hereby exercise supervisory revisionary jurisdiction vested in the High Court vide Article 165 (6) and (7) of the Constitution as read with Sections 362 – 365 of the Criminal Procedure Code and call into this court and revise the Ruling and order made on 26th February 2024 by Hon. Dr. D. Ogoti on case to answer and set it aside.
8. I substitute thereto with an order quashing that Ruling and order and direct the trial court to set a date for delivery of a fresh ruling on whether the accused Rosemary Atieno Abuto has a case to answer on all the 4 counts as per the amended charge sheet as the prosecution had already closed its case.
9. This Ruling to be typed and send to the trial court together with the lower court file for further necessary action as directed herein above.
10. This file is closed.
11. I so order.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 3RD DAY OF APRIL, 2024R. E. ABURILIJUDGE