[2019] KEHC 718 (KLR)
The court found that, although there was non-attendance by the state on the material date, the prosecution had previously demonstrated reasonable diligence in availing witnesses and progressing the matter. The record did not support a finding of persistent neglect or want of prosecution. Accordingly, the court...
Source-derived case information.
- Citation
- [2019] KEHC 718 (KLR)
- Parties
- Applicant: Director of Public Prosecutions; Defendant: Ali Ingosi Were
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 39 of 2015
- Procedural Posture
- Criminal Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- Application for dismissal denied; matter to be fixed for hearing for prosecution to avail remaining witnesses.
- Judges
- DN Musyoka
- Legal Topics
- Dismissal for Non Attendance, Prosecutorial Discretion, Adjournment of Hearing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Director of Public Prosecutions
Applicant
Ali Ingosi Were
Defendant
Procedural Posture
Criminal Case / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the criminal case should be dismissed for want of prosecution due to non-attendance by the state and complainant.
- 2 Whether the prosecution has demonstrated a pattern of non-attendance or failure to avail witnesses warranting dismissal under the Criminal Procedure Code.
Ratio Decidendi
The court found that, although there was non-attendance by the state on the material date, the prosecution had previously demonstrated reasonable diligence in availing witnesses and progressing the matter. The record did not support a finding of persistent neglect or want of prosecution. Accordingly, the court exercised its discretion under section 206 of the Criminal Procedure Code to grant the prosecution another opportunity to present its remaining witnesses, rather than dismissing the case outright.
Court Disposition
Application for dismissal denied; matter to be fixed for hearing for prosecution to avail remaining witnesses.
Orders
- The matter shall be fixed for hearing for the prosecution to avail their remaining witnesses.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
CRIMINAL CASE NO. 39 OF 2015
REPUBLIC………….…………DIRECTOR OF PUBLIC PROSECUTIONS
VERSUS
ALI INGOSI WERE…………………………….............…………...ACCUSED
RULING
1. When this matter came up for hearing on 14th October 2019, there was no state prosecutor in court, and Mr. Shifwoka, advocate for the accused, invited me to consider dismissing the criminal case on account of non-attendance and want of prosecution by the state and the complainant.
2. The Criminal Procedure Code, Cap 75, Laws of Kenya, does empower the court to dismiss a case where the complainant fails to attend court. See sections 202 and 206.
3. I have gone through the record before me. The matter has come up for hearing several times. It first came up on 17th May 2016, when it was adjourned for lack of witnesses. It came up next on 10th May 2017, four witnesses were in court, but the state sought adjournment for mental evaluation of the accused. On 24th October 2018, the state had three witnesses, but the matter was adjourned for Mr Shifwoka to be supplied with witness statements. The matter proceeded on 31st January 2019, when two witnesses testified. On 8th April 2019, the state had one witness, the matter was adjourned because the trial court was not sitting.
4. From the above, it cannot be said that the prosecution has had a really bad record of not attending court or not availing witnesses or causing adjournments. I shall accordingly allow the state a second chance. I shall exercise discretion under section 206 of the Criminal Procedure Code, and direct that the matter be fixed for hearing for the prosecution to avail their remaining witnesses.
5. It is so ordered.
DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 11TH DAY OF DECEMBER, 2019
W. MUSYOKA
JUDGE