ODPP v Musyoka (Criminal Revision E034 of 2026) [2026] KEHC 9984 (KLR) (23 June 2026) (Ruling)

ODPP v Musyoka (Criminal Revision E034 of 2026) [2026] KEHC 9984 (KLR) (23 June 2026) (Ruling) Neutral citation: [2026] KEHC 9984 (KLR) Republic of Kenya In the High Court at Makadara Criminal Revision E034 of 2026 J Wakiaga, J June 23, 2026 Between ODPP Prosecution and Peter Mwalimu Musyoka Respondent (Revision arising from the judgement of the Chief Magistrates Court at Makadara in Sexual Offence Case No 183 of 2021 delivered on 5th march 2026) Ruling 1.By a Notice of Motion under certificate of urgency dated 9th March 2026 , the applicant moved the court for orders that the court call for and examine the record of the CM C Sexual Offences Case No 183 of 2021 for the purposes of satisfying itself as to the correctness , legality and or propriety of the judgement thereon and the regularity of the proceedings thereon. 2.That the court be pleased to find that the proceedings of 6.8.2025 where the matter was fixed for defence hearing when the prosecution had not closed its case were defective illegal , irregular, un-procedural and a violation of the victims and prosecutors right . 3.That the court be pleased to find that the proceedings of 29.1.2026 where the respondent proceeded to give his defence when a formal ruling under section 210 of the CPC had not been delivered were defective , irregular , illegal and un- procedural. 4.That the court be pleased to set aside the acquittal and direct that the trial be conducted by another court of competent jurisdiction 5.That the court be pleased to order a retrial to allow the prosecution to call all remaining witnesses and to close its case . 6.The application was based on the grounds that the trial court proceeded to mistakenly fix the matter for defence hearing having not taken into account that the prosecution had not closed its case and the defendant proceeded to give his defence without the court complying with the provisions of section 210 of the CPC . 7.The application was supported by the affidavit of Christine Nthiga Kabaale the Prosecuting Counsel in which it was deposed that on the 5th February 2025 the prosecution called PW3 Dr. Farah of Mama Lucy Kibaki Hospital to produce the medical report and the prosecution made an application under section 33 of the Evidence Act to allow the same produce the report on behalf of its maker, which the defence objected . 8.That the trial court adjourned the matter for a ruling set for 24th April 2025 at which the objection was overruled and further hearing date set for 6th august 2025 which the trial court erroneously recorded as defence hearing and on the 29th January 2026 the defence hearing proceeded and judgement delivered on 5th march 2026 without the prosecution closing its case. 9.That there was an error on both the trial court and the Prosecution which ought not to be visited upon the victim who is entitled to right to fair hearing under Article 50 of the Constitution. 10.The application was served upon the respondent who did not file any response Submissions 11.When the matter came up for hearing , Ms Kariuki submitted the court erred and the judgement thereon was issued prematurely having not followed the right procedure by putting the respondent on his defence before the close of the prosecution case and without a ruling as to whether there was a case to answer. 12.The respondent who was un represented submitted that the witness did not attend court and that the case had been pending for six years . Determination 13.The powers of this court to supervise the subordinate courts has now been elevated to a constitutional level by virtue of Article 165(6) of the Constitution and (7) thereof which allows the court to call for the record of any proceedings before any subordinate court and may give any order or any direction it considers appropriate to ensure the fair administration of justice . 14.Section 362,364 and 365 of the CPC gives the statutory basis for the exercise of the revision powers of the High Court and this court in the case of George Aladwa Omwera v R [2016] KEHC 7437 had this to say on the said powers ; “ 19.A reading of this Article of the Constitution clearly shows that the High Court now has supervisory jurisdiction both in respect of civil and criminal matters arising from the subordinate courts in addition to the supervising quasi judicial bodies to ensure the fair administration of justice. 20.In respect to criminal matters Section 362 and 364 (1) (b) of the Criminal Procedure Code provides as follows:- S. 362 the High court may call for and examined the records of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of any such subordinate court. S. 364(1) in the case of a proceeding in subordinate court the record of which has been called for or which has been reported for order or which otherwise comes to its knowledge, the High Court may (b) in the case of any other order other than an order of acquittal alter or reverse the order. 21.It therefore follows that this court has both Constitutional and statutory jurisdiction to determine this matter herein by calling for the records of the trial court to satisfy itself as to either the correctness, legality or propriety of the finding of the trial court however the jurisdiction of the court herein must be exercised with the legal splenetic of revisionary jurisdiction is upon which the application is brought which jurisdiction include cancelling or reversing the bonds terms granted in appropriate cases. 22.In exercising supervisory jurisdiction under Article 165(6) the court does not exercise appellate jurisdiction and therefore cannot review or reweigh evidence upon which the determination of the lower court is based, it can only demolish the order which it considers erroneous or without jurisdiction and which constitutes gross violation of the fair administration of justice but does not substitute its own view to those of the inferior tribunals. 23.In Veerappa Pillai v Remaan Ltd the Supreme court of India has this to say:- “The supervisory powers is obviously intended to enable the High court use them in grave cases where the subordinate tribunal or bodies or officer acts wholly without jurisdiction or excess of it or in violation of the principles of natural justice or refuses to exercise jurisdiction vested in them or there is an apparent error on the face the record and such action, omission, error or excess has resulted in manifest injustice. However extensive the jurisdiction may be, it seems to us that it is not so wide and large as to enable the High Court to convert itself into a Court of Appeal and examine for itself the correctness of the decision impugned and decide what the proper view on the order be made…..” 24.The above principle is applicable to the exercise of revisional jurisdiction of the court wherein the court too cannot sit in appeal and re-appreciate the evidence. It is only exercised to correct the manifest error in the order of the subordinate courts but should not be exercised in a manner that turns the Revisional court into appeal. The jurisdiction cannot be exercised mainly because the lower court has taken a wrong view of the law or misapprehended the evidence tendered. See Pathummaa & Anor v. Muhammed 1986 (2) SCC 585 where it was stated that in revisional jurisdiction the High Court would not be justified in substituting its own view for that of the magistrate on question of facts 15.In this matter as submitted by the applicant the trial court as confirmed from the record of the proceeding made a procedural error in calling upon the accused p[person to tender his defence before complying with the statutory provisions of sections 210 and 211 of the Criminal Procedure Code. 16.The record of the proceedings does not show that the prosecution closed its case and neither did the court make a finding as to whether or not the prosecution had made a prime facia case to enable it put the accused on his defence and neither was the charge sheet , the defect of which the court acquitted the accused been challenged at the trial . 17.It therefore follows that the court fell into error and further the applicant and the complainant’s right to fair hearing were violated. Consequently, I allow the application herein by setting aside the judgement of the trial court herein and the subsequent acquittal of the accused person dated 5th march 2026and remit the file back for trial before another magistrate rather than Hon .S Bett. 18.I further expunge from the record the accused persons defence which was un-procedurally received and order that in view of the age of the matter before the lower court, the matter to proceed from the evidence of PW3 who had been stood down for the purposes of the ruling of the court dated 24th April 202. 19.And it is ordered. SIGNED DATED AND DELIVERED THIS 23rd DAY OF JUNE 2026J.WAKIAGAJUDGEIn the presence of :Ms. Kariuki - ProsecutorIrene - Court AssistantApplicant in person