[2012] KEHC 5867 (KLR)
The court found that the accused persons were charged and, in some instances, convicted for a non-existent offence under the Environmental Management and Coordination Act. The particulars of the charges did not disclose any offence known to law. The State conceded this position, and the DPP had already directed...
Source-derived case information.
- Citation
- [2012] KEHC 5867 (KLR)
- Parties
- Applicant: Peter Kavemba Mwonga; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 4 of 2012
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision
- Outcome
- application for revision allowed; convictions, proceedings, and orders quashed
- Judges
- GMA Dulu
- Legal Topics
- Revision Jurisdiction, Non Existent Offence, Environmental Impact Assessment, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Kavemba Mwonga
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision
Legal Issues
- 1 Whether the accused was charged and convicted for a non-existent offence under the Environmental Management and Coordination Act.
- 2 Whether the proceedings and convictions in the subordinate court should be quashed under the court's revisionary powers.
Ratio Decidendi
The court found that the accused persons were charged and, in some instances, convicted for a non-existent offence under the Environmental Management and Coordination Act. The particulars of the charges did not disclose any offence known to law. The State conceded this position, and the DPP had already directed withdrawal of similar charges in related cases. The magistrate's refusal to allow withdrawal and the subsequent convictions and orders constituted an abuse of process. Exercising its revisionary jurisdiction under section 362 of the Criminal Procedure Code, the court quashed all charges, proceedings, convictions, and orders in the affected cases, and directed that any fines or...
Court Disposition
application for revision allowed; convictions, proceedings, and orders quashed
Orders
- All charges in Kilungu Principal Magistrate’s Court Criminal Case No. 166 of 2011, 15 of 2012, and 16 of 2012 are quashed.
- All proceedings and decisions of the learned magistrate in the three cases are quashed.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH OF KENYA AT MACHAKOS
Criminal Revision 4 of 2012
PETER KAVEMBA MWONGA ……….……..…………………..……… ACCUSED
VERSUS
REPUBLIC ……………………………………… PROSECUTOR/ RESPONDENT
R U L I N G
This is a request for revision made by letter dated 25th May 2012 by Onesmus Githinji & Company Advocates on behalf of PETER KAVEMBA MWONGA. It relates to KILUNGU PRINCIPAL MAGISTRATE’S CRIMINAL CASE NO. 166 OF 2011 – Republic –vs- Peter Kavemba Mwonga. Similar situations also arose in Kilungu Principal Magistrate’s Criminal Case No. 15 of 2012 - Republic -vs- Alex Wambua Mwololo and Criminal Case No. 16 of 2012 – Republic –vs- Boniface Muthiani Mutisya and Nicholas Musyoka Kiendi.
In all cases, the accused were charged with operating un-environmental impact project without a licence contrary to section 138 (a) as read with section 146 (1) of the Environmental Management and Coordination Act No. 8 of 1999. The particulars given in the charges were on operation of a lorry for ferrying sand.
In criminal case No. 166 of 2011 the accused was convicted, and subsequent orders made.
The State Counsel Mr Mwenda, has conceded that the charges do not exist. The facts or particulars do not disclose an offence. He stated that in Criminal Case Nos. 15 and 16 of 2012, the DPP directed the prosecutor to withdraw the charges. However, the learned magistrate declined the request for withdrawal of the cases. The State Counsel stated that review was justified.
I have perused the subordinate court files. The accused were charged with a non-existent offence. I am satisfied that this is a case fit for exercise of the revision powers of this court under section 362 of the Criminal Procedure Code (Cap 75 Laws of Kenya). The police seem to be abusing their powers.
Consequently, all the charges filed before the subordinate court at Kilungu Principal Magistrate’s Court Criminal Case No. 166 of 2011, 15 of 2012, and 16 of 2012 are hereby quashed. The proceedings and decisions of the learned magistrate in all the three cases are quashed. If any of the accused was convicted, the conviction is quashed and sentence set aside. Any orders made by the learned magistrate against any of the accused are set aside and any fine or security paid or made is discharged, and should be refunded to the respective accused forthwith.
Dated and delivered at Machakos this 27thday of September2012.
George Dulu
Judge
In presence of:-
Mr Kamanda Holding brief for Mr Musyoka for Applicant
Mr Mwenda for State
Court clerk: Nyalo