[2010] KEHC 2180 (KLR)
The court found that the proceedings in the subordinate court were irregular due to the failure to comply with Section 200(3) of the Civil Procedure Rules, which requires that an accused person be informed of their right to have the case heard afresh when a new magistrate takes over. The trial had been conducted by...
Source-derived case information.
- Citation
- [2010] KEHC 2180 (KLR)
- Parties
- Applicant: Republic; Respondent: Joseph Munoko Nanda
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 4 of 2009
- Procedural Posture
- Criminal Revision / Ruling on Irregularities and Order for Retrial
- Outcome
- Trial and proceedings set aside; order for retrial de novo before a single magistrate.
- Legal Topics
- Defilement of Minor, Trial Irregularities, Retrial Orders, Section 200 Procedure, Natural Justice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Joseph Munoko Nanda
Respondent
Procedural Posture
Criminal Revision / Ruling on Irregularities and Order for Retrial
Legal Issues
- 1 Whether the proceedings in the subordinate court were irregular and contrary to natural justice.
- 2 Whether Section 200(3) of the Civil Procedure Rules was complied with in the conduct of the trial.
- 3 Whether the trial should commence de novo due to procedural irregularities.
Ratio Decidendi
The court found that the proceedings in the subordinate court were irregular due to the failure to comply with Section 200(3) of the Civil Procedure Rules, which requires that an accused person be informed of their right to have the case heard afresh when a new magistrate takes over. The trial had been conducted by three different magistrates without clear compliance with this provision, and witnesses were recalled only for cross-examination rather than a full rehearing. This procedural lapse was deemed contrary to natural justice. Consequently, the court ordered that the trial commence de novo before a single magistrate and proceed on a day-to-day basis until conclusion, to safeguard the...
Court Disposition
Trial and proceedings set aside; order for retrial de novo before a single magistrate.
Orders
- The trial and proceedings in the subordinate court are set aside.
- The accused shall be retried de novo before one trial magistrate.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
Criminal Revision 4 of 2009
RULING
REVISON
I.Background
(1)A trial had commenced against one Joseph
Munoko Nanda, a male adult for the offence of
Defilement of a Minor child aged 5 years old
then.
(2)He pleaded not guilty and his trial began on 23rd
September 2006. The mother to the victim (P.W.1)and the minor (P.W.2) gave evidence before Chief Magistrate F.N. Muchemi (as she then was).She was assigned duties inNairobi.Two years later the police suggested the trial begin from where it had stopped.On 14th July 2008, another Chief Magistrate S.N. Riech took evidence of a medical doctor who produced a P.W.3 on behalf of a colleague. The witness was availed as P.W.1. Thenthe evidence of a police officer was taken down described as P.W.7. A third Chief magistrate C.G. Mbogo took over the trial and was informed that the proceedings to proceed from where it had left off- by the Advocate for theaccused.P.W.1 and 2 were recalled for cross-examination and not for a fresh hearing.They were examined by the said advocate further.
(3)The proceedings were typed.The Hon. Chief
Magistrate referred this matter by an order of the
Court on 14/9/2009 on the irregularities
undertaken in this matter.
(4)A revision file was opened.
II.Opinion
(5)The proceedings of the subordinate Court file is
most certainly irregular and contrary to natural
law and justice.Section 200(3) Civil procedure
Rules had not been complied with.It is unclear
whether the trial was to begin De novo or not.
(6)I hereby order that the trial and proceedings begin
De novo and the accused be retrieda fresh.That
the hearing proceeds on a day to day basisuntil
the sameis finalized beforeone trial magistrate.
(7) Obiter Dictum, Trial by instalments must at all
times be discouraged .
DATED THIS 28THDAY OF MAY 2010 AT ELDORET.
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M.A. ANG’AWA
JUDGE.