[2010] KEHC 4012 (KLR)
The trial magistrate erred by purporting to review and set aside his own order that the accused had a case to answer, as subordinate courts lack jurisdiction to review their own orders or judgments in criminal matters. The High Court, exercising its powers under Section 364 of the Criminal Procedure Code, set aside...
Source-derived case information.
- Citation
- [2010] KEHC 4012 (KLR)
- Parties
- Appellant: Peter Kiragu Githaiga; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 312 of 2009
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Appeal allowed. Order of the trial magistrate set aside. Matter referred to another magistrate for hearing.
- Legal Topics
- Corruption Offences, Powers of Review, Admissibility of Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Kiragu Githaiga
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether a subordinate court has jurisdiction to review its own order or judgment in a criminal case.
- 2 Whether the trial magistrate erred in reviewing and setting aside his own order that the accused had a case to answer.
- 3 Whether the matter should be referred to another magistrate to ensure a fair trial.
Ratio Decidendi
The trial magistrate erred by purporting to review and set aside his own order that the accused had a case to answer, as subordinate courts lack jurisdiction to review their own orders or judgments in criminal matters. The High Court, exercising its powers under Section 364 of the Criminal Procedure Code, set aside the order and directed that the matter be referred to another magistrate to ensure justice is both done and seen to be done, thereby safeguarding the accused's right to a fair trial.
Court Disposition
Appeal allowed. Order of the trial magistrate set aside. Matter referred to another magistrate for hearing.
Orders
- The order of the trial magistrate is set aside.
- The matter is referred to another magistrate to complete the hearing of the case.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
Criminal Appeal 312 of 2009
PETER KIRAGU GITHAIGA……….…………...APPELLANT
VERSUS
REPUBLIC……………………………………...RESPONDENT
JUDGMENT
PETER KIRAGU GITHAIGAis charged before the Chief Magistrate’s Court at Nakuru with the offence of corruption contrary to Section 39(3)(a) as read with Section 48(1)(a) of the Anti Corruption and Economic Crimes Act No. 3 of 2003. In the cause of the hearing of the case before Mr. J.G. Kingori, SPM, an issue arose as to the admissibility of certain documents. Instead of ruling on that issue, the learned magistrate instead ruled that the appellant had a case to answer. On the error being pointed out to him the learned trial magistrate purported to review his own order and set it aside. This appeal is against that order.
Mr. Mugambi for the state readily conceded the appeal on the ground that the trial magistrate had no powers to review his own order. He urged me to review it myself and send the matter back to the same court to complete the hearing.
Mr. Murimi for the appellant opposed the plea for revision arguing that this is not an appeal by the state and this court cannot therefore grant it. The trial magistrate having ruled that the accused had a case to answer, he submitted that he is already prejudiced against the accused and will therefore not give him a fair trial. On his part he submitted that the matter should be referred to another magistrate to complete the hearing.
This was clearly a mistake. The learned trial magistrate instead of ruling on the admissibility of exhibits ruled that the accused had a case to answer when the prosecution had not even closed its case. When he realized the mistake he purported to review his order and set it aside. I agree with both counsel that a subordinate court has no jurisdiction to review its order or judgment in a criminal case.
Mr. Murimi’s contention that this not being an appeal by the state I cannot review and set aside the order complained of has no basis at all. This court has powers to review any order of the subordinate court howsoever it comes to its attention. Although I do not question the integrity of the trial magistrate, I agree with counsel for the appellant that for justice to be done and seen to be done the matter should be referred to another court. Consequently, in exercise of the powers conferred upon me by Section 364 of the Criminal Procedure Code, I set that order aside and direct that the matter be referred to another magistrate to complete the hearing of the case.
DATED and delivered this 28th day of January, 2010.
D. K. MARAGA
JUDGE.