[2020] KEHC 5074 (KLR)
The court found that the withdrawal of assault charges against the accused persons was irregular because the complainant was a minor under 18 years and could not validly consent to the withdrawal except through a next friend. The investigating officer, who purported to consent to the withdrawal, was not a next...
Source-derived case information.
- Citation
- [2020] KEHC 5074 (KLR)
- Parties
- Applicant: Republic; Respondent: EOO; Respondent: MOO
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 58 of 2020
- Procedural Posture
- Criminal Revision / Ruling on Request for Revision of Withdrawal of Charges
- Outcome
- Order of withdrawal of charges set aside; charges reinstated; accused to take fresh plea.
- Judges
- RE Aburili
- Legal Topics
- Withdrawal of Charges, Capacity of Minor, Criminal Procedure, Consent in Criminal Cases
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
EOO
Respondent
MOO
Respondent
Procedural Posture
Criminal Revision / Ruling on Request for Revision of Withdrawal of Charges
Legal Issues
- 1 Whether the withdrawal of assault charges against the accused persons was regular where the complainant is a minor.
- 2 Whether a minor can validly consent to withdrawal of criminal charges without a next friend.
Ratio Decidendi
The court found that the withdrawal of assault charges against the accused persons was irregular because the complainant was a minor under 18 years and could not validly consent to the withdrawal except through a next friend. The investigating officer, who purported to consent to the withdrawal, was not a next friend of the minor. Therefore, the order withdrawing the charges was set aside and replaced with an order reinstating the charges against the accused persons. The accused were ordered to appear before the trial court for a fresh plea and proceedings in accordance with the law.
Court Disposition
Order of withdrawal of charges set aside; charges reinstated; accused to take fresh plea.
Orders
- The order of withdrawal of the charge against EOO and MOO is set aside.
- The charge against EOO and MOO is reinstated.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT SIAYA
CRIMINAL REVISION NO. 58 OF 2020
REPUBLIC............APPLICANT
VERSUS
EOO............1ST RESPONDENT
MOO.........2ND RESPONDENT
(Being a Request for Revision of a ruling for on withdrawal of charges of assault in Criminal Case 208 of 2020 of PM’s Court at Siaya dated 10. 6.2020 before Hon. M. Mwangi, RM)
RULING
1. I have considered the request by the trial court and perused the trial court record in Siaya PM Cr. Case No. 208 of 2020 Republic Vs EOO and MOO.
2. I note that the complainant is a minor aged 16 years old. A child under the age of 16 years lacks the legal capacity to give consent to any act. In the same vein, the complainant herein who is under the age of 18 years could only give consent to withdrawal of the criminal charges against the accused persons through his next friend, not otherwise. The Investigating officer was not a next friend of the minor.
3. For the above reason, I find the withdrawal of the charges of assault against the accused person irregular. I set aside the order of withdrawal of the charge against the two accused persons and substitute it with an Order reinstating the charge against the two accused persons EOO and MOO.
4. The two accused persons shall be required to appear before the PM’s court at Siaya for a fresh plea to be taken and proceedings conducted in accordance with the Law established.
5. Orders accordingly.
Dated, signed and delivered at Siaya, this 11th Day of June 2020.
R.E. ABURILI
JUDGE