https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12408

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISII** **KISII HIGH COURT** **HCCRA NO. E004 OF2025** **REPUBLIC ..........................................................APPELLANT** **VS** **ISAIAH OKOMBO DAUDI OCHOI OTIENO .............RESPONDENT** ***(Being an appeal from the acquittal in Kisii Senior Principal Magistrates Criminal Case No. E499 of 2023 by Hon. B.O. OMWANZA delivered on 22nd January 2025)*** **JUDGMENT** **Introduction** 1. Before this Court is an appeal by the Director of Public Prosecution from the Ruling delivered by Hon B.O Omwansa *in Kisii Senior Principal Magistrates Criminal Case No. E499 of 2023* delivered on**22nd January 2025**where the learned trial court allowed the Prosecution’s application to withdraw the charges under Section 87 (a) and proceeded to acquit the Respondent under *Section 202* of the *Criminal Procedure Code* 2. The Respondent, **Isaiah Okombo Otieno** alias **Daudi Ochoi Magero** alias **Duncan Ochoi Magero** was charged with 7 counts of offences as follows: **Count I –** Personation of a person named in a certificate contrary to *Section 384* as read with *Section 349* of the *Penal Code*, CAP 63 Laws of Kenya **Count II -** Personation of a person named in a certificate contrary to *Section 384* as read with *Section 349* of the *Penal Code*, CAP 63, Laws of Kenya **Count III -** Personation of a person named in a certificate contrary to *Section 384* as read with *Section 349* of the *Penal Code*, CAP 63, Laws of Kenya **Count IV -** Providing false information to a person employed in the public service contrary to *Section 129* of the *Penal Code* CAP 63, Laws of Kenya. **Count V -** Providing false information to a person employed in the public service contrary to *Section 129* of the *Penal Code* CAP 63, Laws of Kenya. **Count VI -** Providing false information to a person employed in the public service contrary to *Section 129* of the *Penal Code* CAP 63, Laws of Kenya. **Count VII** - Fraudulent acquisition of public property contrary to *Section45(1)(a)* as read together with *Section 48* of the *Anti-Corruption and Economic Crimes Act*, 2003, Laws of Kenya. 1. The Respondent pleaded not guilty for all the 7 counts. The matter was consequently scheduled for hearing and the prosecution called a total of 10 witness who testified and cross examined by the Respondent’s Counsel. 2. When the matter came up for hearing on **17th October 2024,** the Appellant sought for an adjournment, a last adjournment was granted by court and further hearing scheduled for **20th November 2024.** On **20th November 2024** the Appellant progressed with the prosecution case calling five witnesses, who testified and were cross examined by the Respondent’s Counsel. The Prosecution sought for an adjournment in order to call 3 more witnesses. Another hearing dated for **22nd January 2025** was scheduled. On **22nd January 2025** the Appellant informed the trial court that they will not be able to proceed, for reason that they were not able to secure witnesses as such they are praying for an adjournment to enable them review the matter. 3. The Respondent vehemently objected the adjournment, stating that the Appellant either closes their case, stops the matter or withdraws it. The Trial magistrate upon consideration of the parties’ submission denied the adjournment and directed that the Appellant either to proceed with the matter, or The Appellant has a right to terminate or withdraw the matter or to close their case and wait for the outcome as to whether the accused is to be placed to his defence or not. 4. In response to the directions, the Appellant applied to withdraw the matter under *Section 87 (a) of Criminal Procedure Code*. The Respondent once again vehemently objected the withdrawal terming it as a backdoor adjournment and that the Respondent may be rearrested anytime over the same offence and facts. They prayed for an acquittal instead. 5. The trial court ruled that the Appellant is indecisive, having been given the option to proceed but instead choosing withdrawal at a late stage, could not be allowed to perpetually threaten the accused's rights or reward institutional indolence at his expense, and held that permitting re-arraignment on the same facts without closure would do violence to his constitutional protections. The trial court accordingly allowed the withdrawal but ruled that it be entered as an acquittal under *Section 202 CPC* rather than a bare discharge under *Section 87(a) CPC* thereby finally clearing the accused of the charge. 6. Aggrieved by the decision of the trial court the Appellant filed the appeal by their Petition of Appeal dated **4th February 2024**, citing the following grounds: 7. *The learned trial magistrate erred in law when he acquitted the accused person under Section 202 of the CPC when the circumstances of the case did not call for acquittal of the accused person under the said section or any other section of the law since both the Prosecutor and the Investigation Officer, representatives of the State were in court.* 8. *The learned trial magistrate erred in fact by failing to take into account that the option of withdrawal of the case under Section 87(a) CPC was one of the conditions he had given in his earlier ruling and the application for withdrawal of the case was a direct consequence of his earlier orders.* 9. *The entire proceedings of the court are vitiated by biasness, both perceived and actual, on the part of the learned magistrate.* 10. *The proceedings of the court are irregular in that the learned trial magistrate often abdicated his duty as an impartial arbiter and played the role of defence counsel thereby compromising fair trial of the case.* 11. The Appellant urged the court to allow the appeal, quash and set aside the decision of the lower court, acquitting the accused person under *Section 202 of the CPC.* **Submissions** 1. This Court, on the **21st May 2026,** directed that the appeal be canvassed by way of written submissions. Counsel for the Respondent informed the court that they had filed their written submissions dated **20th May 2025**, however was not placed on record or filed via CTS. On the other hand, the Appellant undertook to file its submissions within three days. It is noteworthy that no submissions had been placed on record by either party as at the time of writing this judgement, thus the court will proceed to determine the appeal without the submissions of the parties. **Analysis And Determination** 1. This being the first appellate court, it has a duty to conduct re-examination and reappraisal of the evidence adduced before the trial court and come up with its own independent conclusion. The principles of the first appellate court have been stated and restated in innumerable of cases, among them **Kiilu & Another v. Republic [2005] KLR 174** where it was stated: “An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate courts own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusion; it must make its own conclusion only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing witnesses.” 1. The gravamen of the appeal is anchored on the decision of the trial court to allow the Appellant to withdraw the case under *Section 87(a)* *CPC* and in the same breath acquitted the Respondent under *Section 202* *CPC.* The Appellant is further aggrieved that the trial court gave its directions and directed that the Appellant either withdraws the case or closes the prosecution. The Appellant opted to withdraw the case under *Section 87(a*) CPC. Lastly the Appellant is further aggrieved that the trial court is not impartial and it is biased to an extent it acts as a defence Counsel. 2. In order to arrive at a cogent finding, this court has perused the record and appraised itself on the circumstances the impugned ruling was delivered. The ruling was entered due to the inability of the Appellant to proceed on **22nd day of January 2025** thus first seeking an adjournment, an adjournment which was denied. Subsequently the court directed the Appellant to either proceed, withdraw or close their case. The Appellant thus sought time to confer with its superiors. Later at 2:27 pm the Appellant informed the Court that he had instructions to have the case withdrawn under *Section 87 (a) CPC* to which the Respondent’s Counsel opposed. The Court in its ruling allowed the withdrawal save that it acquitted the Respondent under *Section 202 CPC.* 3. This court now sitting as an appellate court must therefore determine whether the withdrawal and the acquittal was legally sound and proper. The Respondent was acquitted under *Section 202 of the Criminal Procedure Code* which provides as follows: **“202. Non-appearance of the complainant at a hearing** **If, in a case which a subordinate court has jurisdiction to hear and determine, the accused person appears in obedience to the summons served upon him at the time and place appointed in the summons for the hearing of the case, or is brought before the court under arrest, then, if the complainant, having had notice of the time and place appointed for the hearing of the charge, does not appear, the court shall thereupon acquit the accused, unless for some reason it thinks it proper to adjourn the hearing of the case until some other date, upon such terms as it thinks fit, in which event it may, pending the adjourned hearing, either admit the accused to bail or remand him to prison, or take security for his appearance as the court thinks fit.”** (Underlined for emphasis) 1. Instructively, *Section 202 CPC* provides that where a matter is coming up for hearing and the Complainant is not in attendance with no justifiable reason, the court may exercise its discretionary jurisdiction and acquit the accused or adjourn the hearing if it thinks fit to do so. This discretion should be exercised judiciously. 2. Undeniably, the above Section grants the court a twin discretionary power to either dismiss the prosecution case and acquit the accused persons altogether or for good reason allow an adjournment. This power was indeed exercised wherein the Appellant was directed to elect one of the three options. The Appellant applied for withdrawal. The Appellant contends that it was within the choices offered by the Court that it proceeded to withdraw. 3. It is always expected that in the exercise of its discretion, the trial court would act judiciously with good faith and in the interest of justice. From the circumstances of this case and due consideration being given to the underlying factors surrounding it, this court, with the greatest respect, holds the opinion that the trial court did not exercise its discretion judiciously when it invoked the provisions of *Section 202 CPC* to allow the withdrawal and acquit the Respondent. 4. Regardless, *Section 202 CPC* was inapplicable in the circumstances, the Section is specific on nonappearance of the complainant at a hearing upon a notice or a summon. The hearing in this case had substantially proceeded with a total of 10 witnesses testifying and 3 were yet to testify. The Investigating Officer as the trial court notes were alleged to have been in court. The Prosecutor was present in court. The matter would not have been technically dismissed. Conversely, the trial court ought to have considered whether or not the evidence already adduced by the Prosecution was sufficient to require that the Respondent be placed on their defence, an option it had already intimated. 5. An acquittal under *Section 202 CPC* ought to have followed if the court found that Complainant with notice or summons was not present in court, and besides the absentia the same ought to deemed just and fit in the circumstances. Was the complainant present in court? Under *Section 202 CPC*, complainant means the Republic in whose name this criminal prosecution is brought upon and a captured by the Charge Sheet dated **13th April 2023**. 6. The High Court in***Director of Public Prosecution v Ntugu* [2023] KEHC 2630 (KLR)** while guided by the Court of Appeal decision in ***Roy Richard Elirema & another v Republic* [2003] eKLR** interpreted the complainant as follows: *“****If follows from the above interpretation that the “Republic”, through the office of the Appellant (the Director of Public Prosecution), is the actual complainant in a criminal charge against a particular person or authority or legal entity. Having found so, the next issue is whether the trial court was right to acquit the Respondent under the provisions of Section 202 of the Criminal Procedure Code”*** 1. The Director of Public Prosecution representing the Republic and, in the circumstances, falling within the meaning of the term complainant was indeed present in court. 2. From the record, it is clear the trial magistrate intended to exercise his discretion on how to move forward with the trial. And he went ahead to allow the withdrawal with no specific reference to a section and proceeded to acquit the accused person under *Section 202 of the Criminal Procedure Code*. The trial court incorrectly applied the law in acquitting the Respondent. In so doing it equally acted with bias prejudicing the Appellant’s rights to fair trial. 3. Be that as it may, the Appellant had opted the withdrawal under *Section 87 (a) CPC* and the Court wherein it applied thus allowed, however, with no specific reference to it. *Section 87 of the CPC* provides an avenue for the Appellant to withdraw cases with leave of the Honourable Court. It provides as thus. ### *‘’87. Withdrawal from prosecution in trials before subordinate courts* 1. ***In a trial before a subordinate court a public prosecutor may, with the consent of the court or on the instructions of the Director of Public Prosecutions, at any time before judgment is pronounced, withdraw from the prosecution of any person, and upon withdrawal—*** ***(a) if it is made before the accused person is called upon to make his defence, he shall be discharged, but discharge of an accused person shall not operate as a bar to subsequent proceedings against him on account of the same facts;*** ***(b) if it is made after the accused person is called upon to make his defence, he shall be acquitted.”*** 1. *Section 87 CPC* only allows the acquittal under *sub section (b).* This is when the accused has been placed on his defence, which is not the case herein and as such the trial court misapplied the law. **Disposition** 1. The trial magistrate committed an error of law by conflating Sections 87(a) and 202 of the Criminal Procedure Code. Having allowed the prosecution to withdraw the charge under section 87(a), the Court became functus officio in respect of the merits of the case and could only order that the accused be discharged in accordance with the statute. The subsequent acquittal under Section 202 was therefore without legal foundation and cannot stand. 2. Consequently, this Court orders as follows; 3. The trial Court’s order acquitting the Respondent under Section 202 of the Criminal Procedure Code is hereby set aside. 4. The trial Court’s order allowing the Prosecution’s application to withdrawal of the charge under Section 87 (a) of the Criminal Procedure Code is upheld only to the extent that it resulted in the Respondent’s discharge and not an acquittal. **JUDGMENT DELIVERED VIRTUALLY, SIGNED AND DATED AT NAIROBI THIS 30TH DAY OF JULY 2026** **ANNE M. OKUTOYI** **JUDGE** In the presence of: **Ms. Muli for the Appellant/State** **Mr. Sagwe for the Respondent** **Ms. Mokeira-Court Assistant**