[2018] KEHC 2228 (KLR)
The court found that the application by the prosecution to withdraw the murder charge and substitute it with manslaughter was made in good faith, with no evidence of malice or bad faith. The court recognized the discretion of the Director of Public Prosecutions to determine the appropriate charge based on available...
Source-derived case information.
- Citation
- [2018] KEHC 2228 (KLR)
- Parties
- Accused: Peter Oindi Anyanga; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 25 of 2017
- Procedural Posture
- Criminal Case / Ruling on Application for Withdrawal of Murder Charge and Substitution With Manslaughter
- Outcome
- Murder charge withdrawn; accused discharged under Section 87(a) of the Criminal Procedure Code; to be charged with manslaughter.
- Judges
- RE Aburili
- Legal Topics
- Withdrawal of Charge, Prosecutorial Discretion, Murder, Manslaughter, Criminal Procedure, Good Faith
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Oindi Anyanga
Accused
Republic
Respondent
Procedural Posture
Criminal Case / Ruling on Application for Withdrawal of Murder Charge and Substitution With Manslaughter
Legal Issues
- 1 Whether the prosecution can withdraw a murder charge under Section 87(a) of the Criminal Procedure Code to substitute it with manslaughter.
- 2 Whether the withdrawal is in good faith and not tainted by malice or bad faith.
- 3 Whether the court should compel the DPP to proceed with a charge they cannot sustain.
Ratio Decidendi
The court found that the application by the prosecution to withdraw the murder charge and substitute it with manslaughter was made in good faith, with no evidence of malice or bad faith. The court recognized the discretion of the Director of Public Prosecutions to determine the appropriate charge based on available evidence and held that it should not compel the prosecution to proceed with a charge they cannot sustain. The court allowed the withdrawal of the murder charge under Section 87(a) of the Criminal Procedure Code and directed that the accused be charged with manslaughter before the Principal Magistrate’s Court at Bondo.
Court Disposition
Murder charge withdrawn; accused discharged under Section 87(a) of the Criminal Procedure Code; to be charged with manslaughter.
Orders
- The charge of murder against Peter Oindi Anyanga is withdrawn under Section 87(a) of the Criminal Procedure Code.
- The accused is discharged under Section 87(a) of the Criminal Procedure Code.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT SIAYA
SIAYA HC. CRIMINAL CASE NO. 25 OF 2017
(CORAM: R. E. ABURILI - J.)
PETER OINDI ANYANGA.........ACCUSED
VERSUS
REPUBLIC............................RESPONDENT
RULING
1. Plea in this case was taken on 24/11/2017. The accused person Peter Oindi Anyanga is charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. He is alleged to have murdered Jacinta Amondi Onyangoon 30/3/2017 at Wanga’rot village, in Rarieda Sub County within Siaya County. He is alleged to have been in company of another not before this court. The information forming the basis of the charge herein is dated 13/10/2017 and was filed and signed by Ms. Maurine Odumba, Prosecution Counsel.
2. Throughout the Proceedings, Ms. Odumba was handling this matter until 24/7/2018 when this hearing dated was fixed. The court is alive to the fact that Ms. Odumba is now on maternity leave. Mr. Okachi SPPC now applies to have the charge of murder terminated under Section 87(a) of the Criminal Procedure Code as he intends to substitute the charge with that of Manslaughter. He submits that this was after carefully perusing the witness statements is when he formed that opinion.
3. The Defence Counsel Mr. Oduor opposes the application saying it has taken too long to reach that decision and that the trial of the accused be delayed.
4. This court observes that it is in the discretion of the DPP to decide whether to proceed with the charge before court or to terminate proceedings against the accused person. As long as they give reasons for withdrawal and the withdrawal is in good faith, the Court should not compel the DPP to proceed with a charge they know they cannot sustain.
5. This court has heard Mr. Okachi SPPC and Mr. Oduor in their submissions for and against the withdrawal of the charge. 5 witnesses are before the court.
6. In my view, the fact that it has not been shown that the withdrawal of the charge is laced with malice or bad faith and the fact that Mr. Okachi has not been in conduct of this matter from its commencement is a clear indication that he has given it serious though and therefore he should be given the benefit of doubt and an opportunity to exercise his discretion in the matter to bring an appropriate charge against the accused person.
7. Accordingly, I am satisfied that the application for withdrawal of the charge of murder is in good faith. The same is hereby allowed. The charge of against the accused person Peter Oindi Anyangabe and is hereby withdrawn under Section 87(a) of the Criminal Procedure Code.
8. As the Prosecution have clearly indicated that they intend to charge him with Manslaughter, the accused is hereby discharged under Section 87(a) of the Criminal Procedure Code.
9. He is however directed to appear before the Principal Magistrate’s Court at Bondo on 31/10/2018 to take a Plea on a lesser charge of Manslaughter. The bond executed by the accused person shall be extended until 31/10/2018.
10. The accused is however, at liberty to apply for the subordinate court for the same trial terms herein to apply, after he has taken the said Plea. Orders accordingly. The File is herein closed.
Dated, Signed and Delivered at SIAYA this 30th Day of October 2018.
R.E. ABURILI
JUDGE