[2018] KEHC 1165 (KLR)
The High Court declined to revise the order of the Resident Magistrate permitting withdrawal of the charge because, following the withdrawal and production of a valid licence, the issue became moot and academic. The court emphasized that it does not issue orders in a vacuum or entertain academic questions,...
Source-derived case information.
- Citation
- [2018] KEHC 1165 (KLR)
- Parties
- Applicant: Republic; Respondent: David Thirikwa Ndungu
- Court
- High Court
- Court Station
- High Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 36 of 2018
- Procedural Posture
- Criminal Revision / Order on Revision
- Outcome
- Application for revision declined.
- Legal Topics
- Criminal Procedure, Jurisdiction of Magistrates, Withdrawal of Charges
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
David Thirikwa Ndungu
Respondent
Procedural Posture
Criminal Revision / Order on Revision
Legal Issues
- 1 Whether the Resident Magistrate had jurisdiction to entertain and determine the matter under the Alcoholic Drinks Control Act.
- 2 Whether the order allowing withdrawal of the charge should be revised by the High Court.
Ratio Decidendi
The High Court declined to revise the order of the Resident Magistrate permitting withdrawal of the charge because, following the withdrawal and production of a valid licence, the issue became moot and academic. The court emphasized that it does not issue orders in a vacuum or entertain academic questions, referencing established case law. The lack of an improper or illegal order adverse to either party further justified the refusal to revise. The court also noted the jurisdictional issue raised by the Chief Magistrate but found that, in the circumstances, no practical purpose would be served by revising the order.
Court Disposition
Application for revision declined.
Orders
- The High Court declines to revise the order of the Resident Magistrate allowing withdrawal of the charge.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAROK
CRIMINAL REVISION NO. 36 OF 2018
REPUBLIC…………………………………………... APPLICANT
-VERSUS-
DAVID THIRIKWA NDUNGU...…………………RESPONDENT
(Being Revision of the Order of the Resident Magistrate dated 19th February, 2018 in the Chief Magistrate Court at Narok, in Criminal Case No. 214 of 2018, Republic V. David Thirikwa Ndungu).
ORDER ON REVISION
1. This matter has been reported by the Chief Magistrate (Hon. W.A. Juma) for orders in respect of the order of the learned Resident Magistrate (Hon. A.N. Sisenda) in which she allowed a withdrawal of a charge of operating a bar business without a licence contrary to section 7(1)(a) as read with section 62 of the Alcoholic Drinks Control Act No. 4 of 2010. This was done after the the prosecution produced in court a licence from the respondent, which was valid. The order permitted a withdrawal under section 87(a) of the Criminal Procedure Code [Cap 80] Laws of Kenya.
2. In her report to this court the Chief Magistrate has indicated that the trial court lacked jurisdiction to entertain and determine this matter. In this regard, the definition of “magistrate” in the interpretation section of the Alcoholic Drinks Control Act in section 2 means “A magistrate who is above the rank of the Resident Magistrate.”
3. The chief magistrate has therefore urged this court to revise the order that allowed a withdrawal.
4. The issue raised in this matter is whether or not the order should be revised. The reason being that there was not in place an improper or illegal order that was adverse to the respondent or the state. Following the withdrawal of the charge, the issue became moot or academic. I refer to Attoney General v. Ally Kleist Sykes (1957) EA 257, in which the court therein declined to entertain academic questions submitted for its opinion in a case stated, since they were of academic nature. That court stated in clear terms that it was not part of its duty to answer academic questions.
5. Similarly the order of the trial court raises an academic question that does not call for revision by this court pursuant to its powers in terms of section 364 of the Criminal Procedure Code (Cap.75) Laws of Kenya, since a court does not issue orders in a vacuum.
6. I therefore decline to revise this order.
7. Orders accordingly.
Order on revision dated this 13th day of December, 2018
J.M. BWONWONGA
JUDGE
13/12/2018