[2019] KEHC 3241 (KLR)
The High Court found that while the prosecution had demonstrated laxity by failing to ensure the attendance of the investigating officer and complainant and by not serving witness statements on the defence, the trial court's order was a discharge and not an acquittal. In the interest of substantive justice under...
Source-derived case information.
- Citation
- [2019] KEHC 3241 (KLR)
- Parties
- Applicant: Republic; Respondent: Josephat Kipkoech Too
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 12 of 2019
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Discharge Order
- Outcome
- Application for revision allowed; discharge order set aside conditionally.
- Judges
- GMA Dulu
- Legal Topics
- Criminal Revision Powers, Discharge of Accused, Failure to Attend Court, Prosecution Laxity
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Josephat Kipkoech Too
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Discharge Order
Legal Issues
- 1 Whether the trial court's discharge of the accused under section 202 of the Criminal Procedure Code was proper in the circumstances.
- 2 Whether the High Court should exercise its revisionary powers to set aside the discharge order and allow the prosecution another opportunity.
Ratio Decidendi
The High Court found that while the prosecution had demonstrated laxity by failing to ensure the attendance of the investigating officer and complainant and by not serving witness statements on the defence, the trial court's order was a discharge and not an acquittal. In the interest of substantive justice under Article 159 of the Constitution, the court exercised its revisionary powers to set aside the discharge order, but made this conditional upon the prosecution serving all witness statements on the defence by the next mention date. If the prosecution failed to comply, the discharge order would remain in effect. The court emphasized that its intervention was justified only because the...
Court Disposition
Application for revision allowed; discharge order set aside conditionally.
Orders
- The trial court's order discharging the accused is set aside.
- The trial will proceed before a different magistrate.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KERICHO
CRIMINAL REVISION CASE NO.12 OF 2019
(From Original conviction and sentence in Kericho CM Cr. Case No.1787 of 2019 by G. O. Kimang’a - SRM)
REPUBLIC.....................................................................................APPLICANT
VERSUS
JOSEPHAT KIPKOECH TOO.................................................RESPONDENT
RULING
1. The State has brought the present request for criminal revision because on 10th June 2019 the trial magistrate discharged the accused person Josephat Kipkoech Too under section 202 of the Criminal Procedure Code (cap 75), for failure of the complainant to attend court.
2. I have perused the trial court proceedings and observe that on 25th May 2019 the investigating officer and the complainant did not attend court, and the court granted the prosecution a final adjournment and ordered the issuance of summons to the investigating officer, and fixed the case for hearing on 10/6/2019.
3. On the 10/6/2019 again the investigating officer did not attend court, nor did the complainant, and the prosecutor informed the court that she did not even have the police file upon which defence counsel Mr. Mbeche complained and asked that the matter be finalised. That is when the magistrate discharged the accused under section 202 of the Criminal Procedure Code (cap.75).
4. Under section 362 and 364 of the Criminal Procedure Code (cap.75), this court has powers to revise orders made by subordinate courts in respect of criminal proceedings, if they are illegal or irregular.
5. In the present case, the trial court must have thought that the State was delaying the matter deliberately when it discharged the accused. The charge appears to be only a minor charge of creating a disturbance in a manner likely to cause a breach of the peace, and the investigating officer and complainant continued to absent themselves. I note that todate, the prosecution has not stated that they have prosecution witness statements, or that they have served the statement on the defence, as required by law. There is a laxity on the part of the prosecution.
6. However, in the interest of administering substantive justice under the provisions of Article 159 of the Constitution, I will give the prosecution a last chance, since the trial court discharged rather than acquitted the accused. If the trial court had acquitted the accused, I would not have exercised this court’s revision powers.
7. I thus exercise this court’s revision powers and set aside the trial court’s orders discharging the accused person, and order that the trial will proceed before a different magistrate. The revision of the trial court’s orders herein will only be effective if on the mention date hereunder, the prosecutor will confirm to the magistrate that the prosecution has served all witness statements on the defence, failure to which the discharge orders of the trial court herein will still stand.
8. Mention before the Chief Magistrate Court at Kericho on 7th November 2019.
Dated and delivered at Kericho this 29th October 2019.
George Dulu
JUDGE