[2017] KEHC 9700 (KLR)
The court determined that it had erred by convicting the accused of manslaughter without first putting him on his defence, as required by Section 306(2) of the Criminal Procedure Code. This procedural lapse also infringed the accused's constitutional right to a fair trial under Article 50(2)(i), which guarantees the...
Source-derived case information.
- Citation
- [2017] KEHC 9700 (KLR)
- Parties
- Applicant: Republic; Defendant: Isaack Momanyi Makworo
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 57 of 2013
- Procedural Posture
- Criminal Case / Ruling on Review After Prosecution Objection at Close of Prosecution Case
- Outcome
- Prior conviction set aside; accused put on his defence.
- Judges
- J Wakiaga
- Legal Topics
- Manslaughter, Right to Fair Trial, Procedure at Close of Prosecution Case
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Isaack Momanyi Makworo
Defendant
Procedural Posture
Criminal Case / Ruling on Review After Prosecution Objection at Close of Prosecution Case
Legal Issues
- 1 Whether the accused was properly convicted of manslaughter without being put on his defence as required by law.
- 2 Whether failure to comply with Section 306 of the Criminal Procedure Code and Article 50(2)(i) of the Constitution invalidated the prior conviction.
Ratio Decidendi
The court determined that it had erred by convicting the accused of manslaughter without first putting him on his defence, as required by Section 306(2) of the Criminal Procedure Code. This procedural lapse also infringed the accused's constitutional right to a fair trial under Article 50(2)(i), which guarantees the right to remain silent and to be heard. The court exercised its review powers under Article 159(2)(4) of the Constitution to set aside the prior conviction and instead ordered that the accused be put on his defence, thereby restoring the procedural and constitutional safeguards owed to the accused.
Court Disposition
Prior conviction set aside; accused put on his defence.
Orders
- The order convicting the accused of manslaughter is reviewed and set aside.
- The accused is put on his defence under Section 306(2) of the Criminal Procedure Code.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CRIMINAL CASE NO. 57 OF 2013
REPUBLIC....................................................PROSECUTOR
VERSUS
ISAACK MOMANYI MAKWORO.........................ACCUSED
RULING
1. By a ruling dated 9th November, 2019 under the provisions of Section 306of the Criminal Procedure Code the Court held that the prosecution did not prove the case of murder against the accused person as charged but found that a lesser offence of manslaughter had been proved.
2. At the time of the said ruling Mr. Meroka the learned State Prosecutor pointed out to the court that Section 211 of the Criminal Procedure Code had not been complied with leading to the review herein.
3. I must point out that the correct section of the law as regards trial in the High Court is Section 306 of the Criminal Procedure Code and not Section 211 as pointed out by Mr. Meroka which requires the court to either acquit or put the accused on his defence.
4. As pointed out by Mr. Meroka it is clear that the accused was convicted without giving the same an opportunity to give an account of what happened and or to exercise his right to remain silent under the provisions of Article 50 (2)(i) of the Constitution and thereby compromising his right to free and fair trial.
5. In exercise of the powers conferred upon the court under Article 159(2)(4) of the Constitution of Kenya 2010, I hereby review the order issued herein and substitute the same with an order putting the accused person on his defence under the provisions of Section 306(2) of the Criminal Procedure Code.
6. The accused shall therefore through the advice of his Advocate on record choose how he intends to defend himself.
DATED, SIGNED and DELIVERED at Nairobi this 19th day of December, 2017
..........................
J. WAKIAGA
JUDGE
In the presence of:-
Wegulo for the State
No appearance for Mrs. Gulenywa for the accused
Accused present
Court clerk Tabitha