[2018] KEHC 2022 (KLR)
The court found that the prosecution, upon reviewing the evidence, was within its constitutional and statutory discretion to withdraw the murder charge and substitute it with a manslaughter charge, as there was no evidence of bad faith. The defence did not object to this course of action. Consequently, the court...
Source-derived case information.
- Citation
- [2018] KEHC 2022 (KLR)
- Parties
- Defendant: Peter Owuor Adoko; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 1 of 2017
- Procedural Posture
- Criminal Case / Ruling on Withdrawal of Murder Charge and Substitution With Manslaughter
- Outcome
- Murder charge withdrawn; accused discharged on that charge; accused to be produced before lower court for manslaughter plea.
- Judges
- RE Aburili
- Legal Topics
- Withdrawal of Charge, Substitution of Charge, Prosecutorial Discretion, Murder, Manslaughter
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Owuor Adoko
Defendant
Republic
Respondent
Procedural Posture
Criminal Case / Ruling on Withdrawal of Murder Charge and Substitution With Manslaughter
Legal Issues
- 1 Whether the prosecution can withdraw a murder charge and substitute it with a lesser charge of manslaughter.
- 2 Whether the court should allow the withdrawal of the murder charge under Section 87(a) of the Criminal Procedure Code.
Ratio Decidendi
The court found that the prosecution, upon reviewing the evidence, was within its constitutional and statutory discretion to withdraw the murder charge and substitute it with a manslaughter charge, as there was no evidence of bad faith. The defence did not object to this course of action. Consequently, the court allowed the withdrawal of the murder charge under Section 87(a) of the Criminal Procedure Code and ordered the accused to be produced before the lower court for plea and trial on the substituted charge of manslaughter.
Court Disposition
Murder charge withdrawn; accused discharged on that charge; accused to be produced before lower court for manslaughter plea.
Orders
- The charge of murder against Peter Owuor Adoko is withdrawn under Section 87(a) of the Criminal Procedure Code.
- The accused is discharged on the murder charge.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT SIAYA
SIAYA HC. CRIMINAL CASE NO. 1 OF 2017
(CORAM: R. E. ABURILI - J.)
PETER OWUOR ADOKO...............................ACCUSED
VERSUS
REPUBLIC.................................................RESPONDENT
RULING
1. The Accused person herein Peter Owuor Adoko is charged with the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code, Cap 63 of Laws of Kenya. It is alleged that on 19/1/2017 at 9. 00 pm at Ulungo Village in Bondo Sub-county within Siaya County, he murdered Jared Ouma Otieno.
2. The accused took a plea of not guilty on 9/3/2017 before Hon. Justice J.A Makau and this case which was handled by Ms. Odumba was set down for hearing.
3. However, albeit there are 6 witnesses present before this court, the prosecution being conducted by Mr. Okachi is of the view that having perused witnesses’ statements, they have formed an opinion that the accused person should have been charged with the offence of Manslaughter which is a lesser offence of Murder.
4. The Defence represented by the Defence Counsel Mr. Oduor has after consulting his client, returned a No Objection verdict. The accused person also has no objection to the charge of murder being withdrawn and being substituted with the lesser charge of Manslaughter and the matter being remitted to the lower court at Bondo PM’s court for Plea and trial.
5. As the division to institute and continue or withdraw criminal proceedings against the Accused person is the discretion of the Prosecution as stipulated in Article 157 of the Constitution of Kenya and as there is no evidence of bad faith the part of the Prosecution, I hereby allow the application for withdrawal of the Murder charge against the accused herein Peter Owuor Adoko.
6. Accordingly, I order that the charge of Murder against the accused person Peter Owuor Adokobe and is hereby withdrawn under Section 87(a) of the Criminal Procedure Code. The accused person is hereby discharged. As the Prosecution intends to charge the accused person with the offence of manslaughter which is triable by the Lower Court, the accused person shall remain in custody and be produced before Bondo Principal Magistrate’s Court for Plea taking on 1/11/2018.
Orders accordingly.
Dated, Signed and Delivered at SIAYA this 3rd Day of October 2018.
R.E. ABURILI
JUDGE