[2006] KEHC 1570 (KLR)
The trial magistrate's dismissal of the case and acquittal of the accused under section 210 of the Criminal Procedure Code was irregular because the prosecution's case had not been closed, and the parties had not been given an opportunity to make submissions as required by law. The only submissions made were in...
Source-derived case information.
- Citation
- [2006] KEHC 1570 (KLR)
- Parties
- Applicant: Republic; Respondent: Joseph M’Mugambi Mwambia
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Anti-Corruption and Economic Crimes Revision 93 of 2006
- Procedural Posture
- Criminal Revision / Ruling on Revision of Acquittal Under Section 210 Cpc
- Outcome
- Order of acquittal and dismissal set aside; case remitted for retrial before a different magistrate.
- Legal Topics
- Malicious Damage to Property, Arson, Criminal Procedure Code Section 210, Criminal Revision, Acquittal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Joseph M’Mugambi Mwambia
Respondent
Procedural Posture
Criminal Revision / Ruling on Revision of Acquittal Under Section 210 Cpc
Legal Issues
- 1 Whether the trial magistrate properly dismissed the case under section 210 of the Criminal Procedure Code before the close of the prosecution's case.
- 2 Whether the acquittal of the accused was irregular and warranted revision.
Ratio Decidendi
The trial magistrate's dismissal of the case and acquittal of the accused under section 210 of the Criminal Procedure Code was irregular because the prosecution's case had not been closed, and the parties had not been given an opportunity to make submissions as required by law. The only submissions made were in respect of an application for adjournment, not on the merits of the case. The magistrate should have allowed the prosecution to close its case and invited submissions before making a determination under section 210. The High Court, exercising its revisionary jurisdiction under section 362 of the Criminal Procedure Code, found the dismissal and acquittal to be premature and...
Court Disposition
Order of acquittal and dismissal set aside; case remitted for retrial before a different magistrate.
Orders
- The dismissal order and acquittal of the accused are revised and set aside.
- The case is remitted to Maua Law Courts for hearing de novo.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MERU
Revision 93 of 2006
REPUBLIC ……………………………………..............…………….. PROSECUTOR
VERSUS
JOSEPH M’MUGAMBI MWAMBIA ………………………………………. ACCUSED
RULING
This matter was referred to me by the Principal Magistrate Maua Law Courts for the purpose of considering whether the case merits review.
The accused was charged in count one, with malicious damage to property contrary to section 339(1) of the Penal Code in which it was alleged that on 2nd July he maliciously damaged various crops belonging to one Isaac Mithika all valued at Kshs. 47,440/=. In the second count, he was charged with arson contrary to section 332(a) of the Penal Code. It was alleged that on 2nd July 2005, he unlawfully set fire to a building the property of ISAAC MITHIKA valued at Kshs. 20,000/=.
On the 14. 6.2006 the learned trial magistrate (D. MORARA R.M.) dismissed the case against the accused under section 210 of the CPC and acquitted the accused. By that time, one prosecution witness had testified.
Section 210 of the CPC provides that:-
“At the close of the evidence in support of the charge, and after hearing such summing up, submission or argument as the prosecutor and accused person or his advocate may wish to put forward, it appears to the court that a case is not made out against the accused person sufficiently to require him to make his defence, the court shall dismiss the case and shall acquit him forthwith.”
What was done by the magistrate in this case was premature. There was no closing of the prosecution’s case, there was no summing up by both parties. The only submissions made were in respect of an application for adjournment. If the learned trial magistrate refused to grant the application for adjournment, as he had a right to do for good reasons, he should have given the prosecutor an opportunity to close his case and then invite submissions before dismissing the case against the accused. The record shows that even after the prosecution had indicated that the case could proceed, the learned trial magistrate went ahead to dismiss the case.
In the circumstances and under the powers conferred upon me by the provisions of section 362 of the CPC, I find that the dismissal order and subsequent acquittal of the accused was irregular.
Accordingly, that order is revised and in lieu thereof, I order that the case shall be remitted back to Maua Law Courts for hearing de novo. The hearing shall be conducted by a magistrate other than D. Morara, Resident Magistrate.
Orders accordingly.
Dated and delivered at Meru this 1st day of August 2006.
RUTH. N. SITATI
J U D G E