[2017] KEHC 4948 (KLR)
The High Court found that the trial magistrate erred in withdrawing the case under section 202 of the Criminal Procedure Code without evidence that the complainant had been notified of the change in hearing date. The absence of such evidence meant that the complainant's interests were not adequately protected, and...
Source-derived case information.
- Citation
- [2017] KEHC 4948 (KLR)
- Parties
- Appellant: Republic; Respondent: Boniface Nyongesa
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 9 of 2017
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Appeal allowed. Order of withdrawal set aside. Fresh plea ordered before a different magistrate.
- Judges
- KW Kiarie
- Legal Topics
- Withdrawal of Complaint, Acquittal Procedure, Section 202 Cpc, Notification of Hearing, Fresh Plea, Trial Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Appellant
Boniface Nyongesa
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the trial court properly withdrew the case under section 202 of the Criminal Procedure Code.
- 2 Whether there was sufficient evidence that the complainant was notified of the change in hearing date.
- 3 Whether the acquittal of the accused/respondent was just in the circumstances.
Ratio Decidendi
The High Court found that the trial magistrate erred in withdrawing the case under section 202 of the Criminal Procedure Code without evidence that the complainant had been notified of the change in hearing date. The absence of such evidence meant that the complainant's interests were not adequately protected, and the acquittal of the respondent was unjust. The court set aside the order of withdrawal and directed that the respondent be taken before a different magistrate for fresh plea taking, ensuring due process and the complainant's right to be heard.
Court Disposition
Appeal allowed. Order of withdrawal set aside. Fresh plea ordered before a different magistrate.
Orders
- The order withdrawing the case under section 202 CPC is set aside.
- The respondent shall be taken to Busia Chief Magistrate's Court for fresh plea taking before a magistrate other than Hon. Washika Wachira.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA AT BUSIA
CRIMINAL APPEAL NO. 9 OF 2017
REPUBLIC ............................................................... APPELLANT
VERSUS
BONIFACE NYONGESA ...................................... RESPONDENT
(From the original order in criminal case No. 2518 of 2015 of the Chief Magistrate’s Court at Busia by R.M Washika Wachira – Senior Resident magistrate)
JUDGMENT
BONIFACE NYONGESA,the respondent was charged with an offence of creating disturbance in a manner likely to cause a breach of the peace contrary to section 95(1) (b) of the Penal Code.
The particulars of the offence were that on 12th November 2015 at Agricultural and Livestock Office in Township location of Busia County, created disturbance in a manner likely to cause a breach of the peace by chasing AKHONYA MUKABANE,while armed with a machete.
The respondent pleaded not guilty and the matter was scheduled for hearing on 11th February 2016. On this date the matter did not proceed for the trial magistrate was on leave. It was therefore adjourned to 12th July 2016 for hearing.
On 6th June 2016 when the matter came up for mention, the defence counsel informed the court that they had agreed with the prosecution to bring the hearing forward to 14th June 2016. The prosecutor in court confirmed the same and the court changed the hearing date from 12th July 2016 to 14th June 2016.
When the matter came up for hearing on 14th June 2016, Kelwon, the learned state counsel informed the court that the complainant was not interested in the matter and that it could be withdrawn. The defence did not object.
The court made the following order:
Matter withdrawn under section 202 CPC. on above reasons. Surety documents to be given back.
This is the against which the state has appealed. Section 202 of the Criminal Procedure Code provides as follows:
If, in a case which a subordinate court has jurisdiction to hear and determine, the accused person appears in obedience to the summons served upon him at the time and place appointed in the summons for the hearing of the case, or is brought before the court under arrest, then, if the complainant, having had notice of the time and place appointed for the hearing of the charge, does not appear, the court shall thereupon acquit the accused, unless for some reason it thinks it proper to adjourn the hearing of the case until some other date, upon such terms as it thinks fit, in which event it may, pending the adjourned hearing, either admit the accused to bail or remand him to prison, or take security for his appearance as the court thinks fit.
The court, other than the information that the complainant was not interested, was not furnished with any evidence that he was notified on the change of the hearing date. Without evidence of such notification, then the learned trial magistrate ought to have demanded for more evidence to satisfy her that indeed the complainant was not interested. The complainant's interests were compromised and he suffered injustice.
From the foregoing, the order cannot be allowed to stay. I accordingly set it aside and order that the respondent be taken to Busia Chief Magistrate's Court for fresh plea taking before any competent magistrate other than Hon. Washika Wachira. The plea to be taken on 6th July 2017.
Orders accordingly.
DELIVEREDandSIGNEDatBUSIAthis22nddayof June, 2017
KIARIE WAWERU KIARIE
JUDGE