[2010] KEHC 2999 (KLR)
The trial magistrate acted without jurisdiction in ordering the matter to start afresh after the prosecution had closed its case and before pronouncing a ruling on whether the accused had a case to answer. The proper procedure, upon the magistrate's disqualification, was for the matter to be taken over by another...
Source-derived case information.
- Citation
- [2010] KEHC 2999 (KLR)
- Parties
- Accused: Peninah Sortum; Prosecutor: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 316 of 2010
- Procedural Posture
- Criminal Revision / Revision of Trial Court Order After Close of Prosecution Case
- Outcome
- Order of retrial by magistrate quashed; matter to proceed before another magistrate from where it left off.
- Judges
- MJA Emukule
- Legal Topics
- Criminal Trial Irregularity, Jurisdiction of Magistrate, Revisionary Powers, Procedure After Prosecution Case
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peninah Sortum
Accused
Republic
Prosecutor
Procedural Posture
Criminal Revision / Revision of Trial Court Order After Close of Prosecution Case
Legal Issues
- 1 Whether the trial magistrate had jurisdiction to order a retrial after closing of the prosecution case but before pronouncing a ruling on a case to answer.
- 2 Whether the order to start the matter afresh was proper in law.
Ratio Decidendi
The trial magistrate acted without jurisdiction in ordering the matter to start afresh after the prosecution had closed its case and before pronouncing a ruling on whether the accused had a case to answer. The proper procedure, upon the magistrate's disqualification, was for the matter to be taken over by another magistrate of competent jurisdiction and to proceed in accordance with Section 200(1)(b) of the Criminal Procedure Code. The High Court, exercising its revisionary powers under Section 364(1)(b) of the Criminal Procedure Code, quashed the order for a fresh trial and directed that the proceedings continue before a new magistrate from the point at which the previous magistrate left...
Court Disposition
Order of retrial by magistrate quashed; matter to proceed before another magistrate from where it left off.
Orders
- The order that the matter start afresh is quashed.
- The matter shall be taken over by another magistrate of competent jurisdiction and proceed in terms of Section 200(1)(b) of the Criminal Procedure Code.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAKURU Criminal Revision 316 of 2010
PENINAH SORTUM……………………………………………………………………….ACCUSED
VERSUS
REPUBLIC……………………………………………………….……………………….PROSECUTOR
JUDGMENT ON REVISION
An irregularity has been brought to the attention of this court by the firm of Kiplenge & Kurgat, Advocates for the Accused in this matter.
The Prosecution had completed its case, and the learned trial magistrate had already written but not pronounced her Ruling that the Accused Person had a case to answer and had not therefore put the Accused to his defence.
However in the absence of his Advocate, the Accused stood up in court and expressed her dissatisfaction at the fact that the prosecution had closed its case without calling, in her opinion, two crucial witnesses, and that money had been paid out not to call the witnesses, and that even the investigation officer had not been called. The trial court consequently felt uncomfortable continuing with the matter and disqualified herself and directed that the matter start afresh.
The order that the matter start afresh was a misdirection on the part of the learned magistrate. She had no jurisdiction to make such an order. Only this court is vested with necessary jurisdiction to make such orders in its original and appellate jurisdiction.
Consequently that order is quashed and in exercise of the powers vested in this Court by Section 364(1)(b) of the Criminal Procedure Code, (Cap. 75, Laws of Kenya) I direct that the matter be taken over by another magistrate of competent jurisdiction and proceed in terms of Section 200 (1)(b) of the Criminal Procedure Code.
Dated, signed and delivered at Nakuru this 15th day of April, 2010
M. J. ANYARA EMUKULE
JUDGE