[2019] KEHC 415 (KLR)
The court found that the prosecution's application for nolle prosequi was properly brought under Article 157 of the Constitution, as there was insufficient evidence to proceed with the murder charge. The accused persons did not oppose the application, and the matter was still at an early stage, with no undue delay...
Source-derived case information.
- Citation
- [2019] KEHC 415 (KLR)
- Parties
- Applicant: Republic of Kenya; Defendant: Gordon Ojwang Ojwang; Defendant: Joseph Aloo Abongo
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 10 of 2019
- Procedural Posture
- Criminal Case / Ruling on Nolle Prosequi Application
- Outcome
- prosecution discontinued, accused discharged
- Judges
- RE Aburili
- Legal Topics
- Murder Charge, Nolle Prosequi, Prosecutorial Discretion, Discharge of Accused
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic of Kenya
Applicant
Gordon Ojwang Ojwang
Defendant
Joseph Aloo Abongo
Defendant
Procedural Posture
Criminal Case / Ruling on Nolle Prosequi Application
Legal Issues
- 1 Whether the prosecution should be allowed to discontinue the murder proceedings against the accused persons under Article 157 of the Constitution.
- 2 Whether the discontinuance of proceedings would occasion prejudice to the accused or the administration of justice.
Ratio Decidendi
The court found that the prosecution's application for nolle prosequi was properly brought under Article 157 of the Constitution, as there was insufficient evidence to proceed with the murder charge. The accused persons did not oppose the application, and the matter was still at an early stage, with no undue delay or prejudice to the accused. The court determined that allowing the discontinuance would not prejudice the accused or the interests of justice, especially as further investigations were to be conducted to clarify the circumstances of the deceased's death. Accordingly, the court granted permission to discontinue the proceedings and discharged the accused persons.
Court Disposition
prosecution discontinued, accused discharged
Orders
- Permission granted to the Office of the Director of Public Prosecution to discontinue the proceedings.
- The proceedings against Gordon Ojwang Ojwang and Joseph Aloo Abongo are forthwith discontinued.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT SIAYA
CRIMINAL CASE NO. 10 OF 2019 [MURDER]
STATE.............................................................................................PROSECUTOR
VERSUS
1. GORDON OJWANG OJWANG...............................................1ST ACCUSED
2. JOSEPH ALOO ABONGO......................................................2ND ACCUSED
RULING
1. The accused persons herein Gordon Ojwang Ojwang and Joseph Aloo Abongo are charged with the offence of Murder Contrary to Section 203 as read with Section 204 of the Penal Code.
2. The particulars of the charge as per Information dated 13. 5.2019 are that on the night of 27 and 28 of April, 2019 at Ogoya Village in Nyangoma Sub-Location, Central Sakwa Location in Bondo Sub-County within Siaya County, jointly murdered one Willis Ngode Orwa. Plea was taken on 20. 5.2019 and the Accused persons pleaded not guilty before Hon. F. A. Ochieng – J. at Kisumu. Today was for fixing of a suitable hearing date in the new term.
3. The Prosecution has filed a Nolle Prosequiseeking to discontinue the prosecution of the accused persons under Article 157(6) (C) and 9 of the Constitution.
4. The accused persons’ Counsel Mr. Okello holding brief for Mr. Onsongo Advocate on behalf of the accused persons has no objection to such termination of these proceedings.
5. In his application, the prosecution Counsel Mr. D. Okachi submitted that he has perused witness statements and found that there is no sufficient evidence to continue with the prosecution of the accused and that he wishes to return the file to the investigators to carry out further investigations in the matter.
6. I have considered the application for nolle prosequi and the fact that the accused do not oppose the same.
7. In addition, the matter is fresh and so the prosecution have not taken a long time to make their decision.
8. I find no prejudice occasioned as further investigations will be undertaken in the matter to determine with precision the circumstances under which the deceased met his death.
9. In the premises and in accordance with Article 157 (8) of the Constitution, I hereby grant permission to the Office of the Director of Public Prosecution to discontinue these proceedings which are hereby forthwith discontinued. The two accused persons Gordon Ojwang Ojwang and Joseph Aloo Abongo are hereby discharged.
10. Orders accordingly.
Dated, Signed and Delivered at Siaya this 4th day of December, 2019
R.E. ABURILI
JUDGE
In the presence of:
Mr. David Okachi Senior Principal Prosecution Counsel for the State
Mr. Okello Advocate h/b for Mr. Onsongo Advocate for the Accused persons
Accused persons present
CA: Brenda & Modestar