[2021] KEHC 3724 (KLR)
The court held that the trial magistrate exercised discretion judiciously in declining to grant an adjournment, having considered the history of delays in the case, the number of witnesses already heard, and the impending transfer of the presiding magistrate. The court found that the reasons given by the trial...
Source-derived case information.
- Citation
- [2021] KEHC 3724 (KLR)
- Parties
- Applicant: Republic; Respondent: Abdi Mohammed Ali & 30 Others
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E156 of 2021
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Lower Court Order
- Outcome
- application for revision dismissed
- Legal Topics
- Adjournment Discretion, Fair Trial Rights, Revision Jurisdiction, Prosecutorial Delay
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Abdi Mohammed Ali & 30 Others
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Lower Court Order
Legal Issues
- 1 Whether the trial magistrate erred in law and fact by declining to grant an adjournment to the prosecution due to the absence of a key witness on leave.
- 2 Whether the lower court's order closing the prosecution case was unjust or prejudicial to the right to a fair trial.
- 3 Whether the decision to grant or decline an adjournment is a proper ground for revision or should be addressed by appeal.
Ratio Decidendi
The court held that the trial magistrate exercised discretion judiciously in declining to grant an adjournment, having considered the history of delays in the case, the number of witnesses already heard, and the impending transfer of the presiding magistrate. The court found that the reasons given by the trial magistrate for closing the prosecution case were valid and that the decision did not amount to an illegality or impropriety warranting revision. The court emphasized that the proper remedy for challenging such discretionary decisions is by way of appeal, not revision, unless there is a clear demonstration of miscarriage of justice or abuse of discretion, which was not established in...
Court Disposition
application for revision dismissed
Orders
- The application for revision is dismissed.
- The trial court file to be returned to the lower court for mention on 28.9.2021 for directions.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CRIMINAL REVISION CASE NUMBER E156 OF 2021
REPUBLIC.....................................................................APPLICANT
VERSUS
ABDI MOHAMMED ALI & 30 OTHERS...........RESPONDENTS
RULING
1. By a letter dated 27th July, 2021, the office of the Director of Public Prosecutions sought that the court calls for Mombasa Chief Magistrate’s Court CR. Case No. 1705 of 2016 Republic –vs- Abdi Mohamed Ali and 30 others and examine the record of proceedings therein as to their legality and/or propriety of the finding made by the said court on 22nd July, 2021.
2. It was also sought that the court be pleased to alter and/or reverse the said order made on 22nd July, 2021 directing the prosecution to proceed and/or close its case after indicating that they had witnesses who had not testified and were willing and ready to attend court and give their evidence.
3. The applicants also sought that in the interest of justice there be stay of execution of the lower court ruling made on the 22nd July 2021 pending the final determination of the proceedings herein.
4. The application was supported by the grounds that the trial magistrate directed the prosecution to proceed with the case even after it had been submitted that the said witness was unable to attend court since she was on leave which leave commenced before she was recalled to attend court.
5. That the trial magistrate erred in both law and fact by directing the prosecution to proceed with the case even when there was evidence to show that the said witness had been bonded to attend court on the 22nd a copy of which were produced in court in support that the prosecution were keen to seeing that the matter proceeds save for the fact that the witness was on leave.
6. That the learned trial Magistrate erred in both law and fact in disregarding the application by the prosecution to have witness summons issued in an attempt to ensure that she attends court without fail under section 150 of the Criminal Procedure Code.
7. That the trial Magistrate didn’t appreciate the provisions of Article 50 of the Constitution of Kenya 2010 which provide for right to fair trial to all parties before it.
8. That the trial magistrate erred in directing the prosecution case closed on its own motion even after prosecution sought for a mention date to seek directions from the DPP since the same had a hearing date on the coming week on 29th July, 2021 and subsequent week.
9. That the order issued by the lower court on 22nd July 2021 was unjust, prejudicial to the fair trial where all parties should have an opportunity to ventilate their issues before court and therefore lacks the legality basis.
10. The ruling delivered on 22nd July, 2021 was to the effect that prosecution had caused the delay in prosecuting the case to the last four to five years and that failure to prove that summons issued by the court were served on the witnesses who were said not to have been traced made the court to decline granting an adjournment as it had indulged the prosecution time and again but the prosecution did not reciprocate.
11. I have looked at the ruling and I do find that a decision to grant or decline to grant an adjournment is an exercise of discretion based on the circumstances of each case and cannot be a ground for revision but rather an appeal in case it is established that the trial Magistrate did not exercise the discretion judiciously.
12. Having perused the lower court ruling, I find the trial magistrate gave reasons for declining to grant an adjournment, in this 2016 matter where the trial Magistrate has so far taken the evidence of 54 witnesses and is due to proceed on transfer on October 2021.
13. I think that it will be in the interest of justice that Hon. Kyambia concludes the trial herein before proceeding on transfer, in the circumstances the application for revision fails.
14. The trial court file to be returned today to the lower court for mention on 28. 9.2021 for directions.
JUDGMENT DATED, SIGNED AND DELIVERED THROUGH MS TEAMS,THIS23RDDAY OFSEPTEMBER 2021
HON. LADY JUSTICE A. ONG’INJO
JUDGE
In the presence of:-
Peris – Court assistant
Ms. Keya for the Applicant
No appearance for Respondents
Hon. Lady Justice A. Ong’injo
Judge