[2014] KEHC 5766 (KLR)
The court found that the prosecution had made reasonable efforts to secure the attendance of witnesses but was unsuccessful. The application for discontinuance was made in accordance with Article 157(6) of the Constitution and section 25(1) of the Office of the Director of Public Prosecutions Act. The defence did...
Source-derived case information.
- Citation
- [2014] KEHC 5766 (KLR)
- Parties
- Applicant: Republic; Defendant: Abdullahi Adan Abdille
- Court
- High Court
- Court Station
- High Court at Garissa
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 12 of 2012
- Procedural Posture
- Criminal Case / Ruling on Application for Discontinuance of Proceedings
- Outcome
- prosecution discontinued, accused discharged
- Legal Topics
- Withdrawal of Proceedings, Discontinuance by Dpp, Attendance of Witnesses
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Abdullahi Adan Abdille
Defendant
Procedural Posture
Criminal Case / Ruling on Application for Discontinuance of Proceedings
Legal Issues
- 1 Whether the Director of Public Prosecutions can discontinue criminal proceedings before the prosecution has closed its case.
- 2 Whether the court should grant permission for discontinuance of the proceedings under Article 157(6) of the Constitution and section 25(1) of the Office of the Director of Public Prosecutions Act.
Ratio Decidendi
The court found that the prosecution had made reasonable efforts to secure the attendance of witnesses but was unsuccessful. The application for discontinuance was made in accordance with Article 157(6) of the Constitution and section 25(1) of the Office of the Director of Public Prosecutions Act. The defence did not oppose the application. The court saw no reason to withhold permission and therefore allowed the DPP to discontinue the proceedings against the accused. As a result, the accused was discharged and ordered to be set at liberty unless held for any other lawful reason.
Court Disposition
prosecution discontinued, accused discharged
Orders
- The DPP is allowed to discontinue the proceedings against Abdullahi Adan Abdille.
- Abdullahi Adan Abdille is discharged.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT GARISSA
CRIMINAL CASE NO. 12 OF 2012
FORMERLY HIGH COURT OF KENYA CRIMINAL CASE NO. 22 OF 2011
REPUBLIC…………………………………………………PROSECUTORVERSUS
ABDULLAHI ADAN ABDILLE……………………………………ACCUSED
RULING
This is an old case that was transferred to Garissa from Nairobi. The case was first mentioned in High Court Garissa on 13th February 2012. The record shows that the witnesses were in court on one occasion only during the case’s lifetime in Garissa. On 12th June 2012 the prosecution has five witnesses in court according to the file records. However, the hearing did not commence on that day for reasons that the prosecution had not supplied the defence with bundles.
On the other occasions the matter was mentioned in court on dates fixed for hearing, the state did not have witnesses and the defence has always raised concern over the delay of this matter.
On 26th March 2014, the learned state counsel in charge of the prosecution in this case applied to be allowed to withdraw the case. The reasons advanced were that the police have not been able to secure the attendance of witnesses despite their concerted efforts. The learned state counsel sought to discontinue the prosecution under Article 157 (6) of the Constitution and section 25 (1) of the Office of the Director of Prosecutions Act.
Article 157 (6) (c) allows the Director of Public Prosecutions to discontinue at any stage before judgment is delivered any criminal proceedings instituted by the Director of Public Prosecution or taken over the DPP. This can only be done with permission of the court (Article 157 (8)). If such discontinuance of proceedings is done after the prosecution has closed the accused person shall be acquitted. The Article does not say what happens where the discontinuance is done before the prosecution has closed its case.
Section 25 (1) of the Office of the Public Prosecutions Act also provides similarly that the DPP may with permission from the court discontinue the proceedings commenced by him or taken over by him.
I have considered this application. The defence is agreeable to the application. I have no reason to withhold the permission and therefore, this court allows the DPP to discontinue these proceedings against the accused. In view of this I hereby discharge Abdullahi Adan Abdille. Unless for any other lawful reason he is held in custody, he shall be set at liberty forthwith. It is so ordered.
Dated, signed and delivered on 27th March 2014.
S.N.MUTUKU
JUDGE