[2015] KEHC 8540 (KLR)
The court found that the acquittal of the respondents under section 202 of the Criminal Procedure Code was not proper, as the section is intended to apply where the complainant fails to appear, not where the prosecution seeks an adjournment. Since the respondents conceded the appeal and did not object to a retrial,...
Source-derived case information.
- Citation
- [2015] KEHC 8540 (KLR)
- Parties
- Appellant: Republic; Respondent: Doreen Atieno Nyamunyo; Respondent: Erick Owino Ouma; Respondent: Jared Owino
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 9 of 2015
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Appeal allowed; acquittal quashed; retrial ordered.
- Judges
- DAS Majanja
- Legal Topics
- Acquittal Procedure, Retrial Orders, Adjournment of Hearing, Conspiracy to Defeat Justice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Appellant
Doreen Atieno Nyamunyo
Respondent
Erick Owino Ouma
Respondent
Jared Owino
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the acquittal of the respondents under section 202 of the Criminal Procedure Code was proper in the circumstances.
- 2 Whether the prosecution was entitled to an adjournment and, if not, whether the remedy was acquittal under section 202.
- 3 Whether a retrial should be ordered after quashing the acquittal.
Ratio Decidendi
The court found that the acquittal of the respondents under section 202 of the Criminal Procedure Code was not proper, as the section is intended to apply where the complainant fails to appear, not where the prosecution seeks an adjournment. Since the respondents conceded the appeal and did not object to a retrial, and given that the interests of justice required the matter to be heard on its merits, the court quashed the acquittal and ordered a retrial to be conducted within three months. The court also made orders regarding the bond status of the respondents pending retrial.
Court Disposition
Appeal allowed; acquittal quashed; retrial ordered.
Orders
- The orders of acquittal issued on 22nd January 2015 are quashed.
- The respondents shall be retried within three months from 1st January 2016.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT HOMA BAY
CRIMINAL APPEAL NO. 9 OF 2015
BETWEEN
REPUBLIC ………………….……………..........………............................ APPELLANT
AND
DOREEN ATIENO NYAMUYO ……………........…...….....…………. 1ST RESPONDENT
ERICK OWINO OUMA ……………………………………………… 2ND RESPONDENT
JARED OWINO ………………………….…………………………… 3RD RESPONDENT
(Being an appeal from the original order of Hon. B. O. Omwansa, Ag. PM in Ndhiwa Senior Resident Magistrates Court Criminal Case No. 478 of 2014 dated 22nd January 2015)
JUDGMENT
DOREEN ATIENO NYAMUNYO, ERIC OWINO OUMA and JARED OWINO faced a charge of conspiracy to defeat justice and interference with witnesses contrary to section 117(b) of the Penal Code (Chapter 63 of the Laws of Kenya) in the subordinate court. They pleaded not guilty to the charge and after several false starts the matter was scheduled for hearing on 22nd January 2015 but when it was called out for hearing the prosecution applied for an adjournment.
The respondents opposed the adjournment and in a considered ruling, the adjournment was rejected and the accused were acquitted under section 202 of the Criminal Procedure Code (Chapter 75 of the Laws of Kenya). The State appealed against the acquittal on the basis that the section under which the respondents were acquitted was not applicable.
At the hearing of the appeal, counsel for the respondents, Mr Odero, informed the court that they concede the appeal and do not object to a retrial.
In the circumstances and having satisfied myself that there is merit in the appeal, I hereby quash the orders issued on 22nd January 2015 acquitting the respondents. I direct the respondents to be retried and the retrial shall take no more than three (3) months from 1st January 2016.
As the 2nd and 3rd respondents are on bond, they shall so remain throughout the trial. The 1st appellant shall execute a personal bond of Kshs. 50,000/- and provide one surety of Kshs. 50,000/-.
The respondents shall appear before the Senior Resident Magistrates Court, Ndhiwa on 5th January 2016 for mention and for further orders regarding their trial.
DATED and DELIVERED at HOMA BAY this 9th December 2015.
D.S. MAJANJA
JUDGE
Mr Oluoch, Senior Assistant Director of Public Prosecutions, instructed by the Office of Director of Public Prosecutions for the appellant.
Mr Nyakwana instructed by E. Odero and Company Advocates for the respondents.