[2017] KEHC 3231 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT KISUMU

CRIMINAL CASE NO. 68 OF 2014

BETWEEN

REPUBLIC....................................................PROSECUTOR

AND

BERNARD ODHIAMBO OGUTU………….....…ACCUSED

RULING

1. BERNARD ODHIAMBO OGUTUwas accused of murdering his wife, MARGARET OKUDO ODHIAMBO,on 5th October 2014 at Milimani Estate in Kisumu. He pleaded not guilty and after hearing the prosecution case, I ruled, on 27th July 2017, that the accused had a case to answer and I proceeded to put him on his defence.

2. Before I could fix the matter for hearing of the defence case, two letters were filed in court on 18th September 2017. I note that neither letters were copied to the court or to the accused’s counsel. The first letter dated 4th September 2017 was written by the accused to the Senior Assistant Director of Public Prosecutions and it stated in part as follows;

In view of the report by my doctor Victor Gichama, I humbly request that the charges I am facing be reduced to manslaughter and be submitted to the Chief Magistrates Court for trial and disposal.

I appreciate the stage at which my trial has reached but I was availed the said documents only recently.

3. In response to that letter, the Prosecution Counsel on behalf of the Office of Director of Public Prosecutions in Kisumu, wrote to the accused the letter dated 14th September 2017 and stated as follows:

We have reviewed the file as well as the documents enclosed in your referred letter and we are of the opinion that the matter be transferred to the Chief Magistrates court to be disposed with a manslaughter.

4. When the matter came up for mention, I directed that the prosecution to make a formal application if it wished to withdraw or terminate the matter. On 4th October 2017, the prosecution filed a Nolle Prosequi letter dated 4th October 2017 seeking to discontinue the prosecution of the accused.

5. Counsel for the prosecution informed that court that having reviewed the matter, they were of the view that the evidence could not sustain a charge of murder. Learned counsel for the accused pointed out that at this stage the only option available for the court, upon accepting the prosecution’s application, is to acquit the accused.

6. Under Article 157(8) of the Constitution the, Director of Public Prosecutions may not discontinue a prosecution without permission of the court. Under this provision, the court is required interrogate the reasons for discontinuance and determine whether, in the words of Article 157(11) of the Constitution, the Director of Public Prosecutions has had, “regard to the public interest, the interest of the administration of justice and the need to prevent and avoid abuse of the legal process”.

7. The Constitution does not set out the consequences of the discontinuance hence one must turn to the Criminal Procedure Code (Chapter 75 of the Laws of Kenya) which, at section 87(a),states as follows;

87. In a trial before a subordinate court a public prosecutor may with the consent of the court or on the instruction or the Attorney General at any time before the judgment is pronounced withdrawn from the prosecution of any person and upon withdrawal:-

(a) if it is made before the accused person is called upon to make his defence, he shall be discharged but the discharge of an accused person shall not operate as a bar to subsequent proceedings against him on account of the same facts,

(b) if it is made after the accused person is called upon to make his defence he shall be acquitted.

8. The reason given by the Learned Prosecutor is that the evidence so far does not sustain a charge of murder. This submission contradicts my finding that the accused has a case to answer on the charge of murder. If anything it is a collateral attack on my decision and cannot be permitted for the reason given by the prosecution as it is an abuse of the court process.

9. In light of section 87(a) of the Criminal Procedure Code, once the prosecution has closed its case, the only option available for the court once the case is discontinued or terminated is to acquit the accused. The accused cannot be sent to the magistrate’s court, as alluded to in the letter written by the Office of the Director of Public Prosecution, for trial for a lesser or cognate offence as this court would be required to acquit him.

10. Since the accused has been put on his defence, it is open to the court to convict the accused of murder or on a reduced charge of manslaughter or acquit him. It is also open for the prosecution to enter into a plea bargain with the accused.

11. I am not convinced that the reasons given by the learned prosecution are sufficient for me to exercise my discretion to permit that the prosecution be discontinued.

12. Consequently, the application is dismissed.

DATED and DELIVERED at KISUMU this 5th day of October 2017

D.S. MAJANJA

JUDGE

Mr Onsongo, Advocate for the accused.

Ms Osoro, Prosecution Counsel, instructed by the Office of the Director of Public Prosecutions, for the State.