[2010] KEHC 3388 (KLR)
The court found that the application to consolidate the information and include a second accused person was permissible under section 135 of the Criminal Procedure Code, as the charge against the current accused remained unchanged. The court rejected the argument that the consolidation would be prejudicial or...
Source-derived case information.
- Citation
- [2010] KEHC 3388 (KLR)
- Parties
- Applicant: Republic; Respondent: Jangaa Munyambo
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 24 of 2005
- Procedural Posture
- Criminal Case / Ruling on Oral Application to Consolidate Information and Add Accused
- Outcome
- application to consolidate information allowed
- Judges
- JV Juma
- Legal Topics
- Consolidation of Charges, Joinder of Accused Persons, Criminal Procedure Code, Prejudice to Accused, Delay in Trial
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Jangaa Munyambo
Respondent
Procedural Posture
Criminal Case / Ruling on Oral Application to Consolidate Information and Add Accused
Legal Issues
- 1 Whether the prosecution should be allowed to file a new and consolidated murder information to include a second accused person.
- 2 Whether consolidating the charge sheet at this stage would be prejudicial or unfair to the current accused.
- 3 Whether the omission of the accused's name in the proposed new information is fatal to the application.
Ratio Decidendi
The court found that the application to consolidate the information and include a second accused person was permissible under section 135 of the Criminal Procedure Code, as the charge against the current accused remained unchanged. The court rejected the argument that the consolidation would be prejudicial or unfair, noting that the delay in the trial was due to the transfer of the presiding judge and not the prosecution. The omission of the accused's name in the draft information was deemed an inadvertent error that could be rectified before filing. The court held that the interests of justice would best be served by allowing the State's application, directing the State to file and serve...
Court Disposition
application to consolidate information allowed
Orders
- The State is directed to file and serve the new proposed information within seven days from the date of the ruling.
- Deputy Registrar to assign counsel to the second accused person.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA
CRIMINAL CASE 24OF 2005
REPUBLIC ……………………………………………. PROSECUTION
VERSUS
JANGAA MUNYAMBO ………....………….........…………. ACCUSED
RULING
The prosecution through the learned State Counsel Mr. Onserio have made an oral application to file a new and consolidated murder information to include a second accused person SULEIMAN MWAMUMBO MUNYAMBO. Learned counsel for the Accused JANGAA MUNYAMBO has strenuously opposed this application to consolidate the charge sheet citing several reasons in support thereto.
Firstly counsel for Accused Mr. Hayanga argues that such a move would be prejudicial as against the Accused in that it amounts to bringing new charges against the Accused after his trial had commenced. This is indeed permissible under 135 Criminal Procedure Code Cap 75 Laws of Kenya. However I have perused the proposed new information and I do note that all it proposes to do is to include an additional accused person. The charge which the Accused faced remains exactly the same as it was in the previous information. As such I find no merit in this argument.
Secondly defence counsel argues that to consolidate the charges at this point would be “unfair and embarrassing” to the Accused who has been in custody for four years awaiting the conclusion of his trial.
I have perused the record and I note that indeed this matter commenced in July 2005. It is therefore quite correct that the Accused has been in custody for about four years. This is indeed regrettable but the blame for such delay cannot be laid exclusively at the feet of the prosecution. The fact of the matter is that the case did commence and indeed my learned Senior Hon. Justice Sergon heard a total of five (5) witnesses. However the hearing was cut short due to the transfer of His Lordship from Mombasa to Nyeri Law Courts. This is an occurrence that cannot be blamed on any party. This was a normal transfer which unfortunately resulted in the learned Judge being unable to complete this case. This delay has not been malicious nor intentional. As Mr. Onserio for the State pointed out the statute of limitations does not affect a charge of murder. I am sure that the succeeding court will endeavour to conclude this trial as expeditiously as possible.
Lastly defence counsel points out that the proposed new information which was served upon him does not include the name of his client as one of those to be charged. The response of the State Counsel is that this is an inadvertent error. The proposed new information has not yet been received by nor filed in court. This is an error which in my view can be easily rectified. The upshot is that I do find that the interests of justice would best be served by allowing the State’s application to consolidate the information to include a second accused person. I hereby direct that the State do file and serve the new proposed information within a period of seven (7) days from today’s date. Deputy Registrar to assign counsel to the second accused person. Psychiatric Report to be availed within (7) days. Mention on 1st March 2010 for plea.
Dated and Delivered in Mombasa this 15th day of February 2010.
M. ODERO
JUDGE
Read in open court in the presence of:
Mr. Monda for State
Mr. Hayanga for Respondent
M. ODERO
JUDGE
15/2/2010