[2016] KEHC 3623 (KLR)
The court found that the withdrawal of the murder charges against the 2nd, 4th, 5th, 6th, and 7th accused persons was properly made by the prosecution, was not opposed by the defence, and was authorized by the relevant statutory and constitutional provisions. The court emphasized that, although murder is a grave...
Source-derived case information.
- Citation
- [2016] KEHC 3623 (KLR)
- Parties
- Applicant: Republic; Defendant: Josiah Kinyua Nzoka; Defendant: Nicasio Muriuki Njeru; Defendant: Abinja Murugi Njue; Defendant: Gerald Gikunju Mugo; Defendant: Dennis Kariuki Njoki; Defendant: Humphrey Mugendi; Defendant: Erasto Nzoka Kiura
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 8 of 2016
- Procedural Posture
- Criminal Case / Pre Trial Conference; Ruling on Withdrawal of Charges
- Outcome
- Withdrawal of murder charges against the 2nd, 4th, 5th, 6th, and 7th accused persons allowed; they are ordered released unless otherwise lawfully held.
- Legal Topics
- Withdrawal of Charges, Prosecutorial Discretion, Murder Trial Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Republic
Applicant
Josiah Kinyua Nzoka
Defendant
Nicasio Muriuki Njeru
Defendant
Abinja Murugi Njue
Defendant
Gerald Gikunju Mugo
Defendant
Dennis Kariuki Njoki
Defendant
Humphrey Mugendi
Defendant
Erasto Nzoka Kiura
Defendant
Procedural Posture
Criminal Case / Pre Trial Conference; Ruling on Withdrawal of Charges
Legal Issues
- 1 Whether the prosecution can withdraw murder charges against certain accused persons at the pre-trial stage.
- 2 Whether the withdrawal is properly authorized under the relevant statutory and constitutional provisions.
Ratio Decidendi
The court found that the withdrawal of the murder charges against the 2nd, 4th, 5th, 6th, and 7th accused persons was properly made by the prosecution, was not opposed by the defence, and was authorized by the relevant statutory and constitutional provisions. The court emphasized that, although murder is a grave offence, the current legal framework allows for summary prosecution and prosecutorial discretion to withdraw charges before judgment. The judge noted the absence of a legislative filtering process for capital offences and called attention to the need for such a process, but held that the withdrawal in this case was lawful and appropriate. Accordingly, the court allowed the...
Court Disposition
Withdrawal of murder charges against the 2nd, 4th, 5th, 6th, and 7th accused persons allowed; they are ordered released unless otherwise lawfully held.
Orders
- The murder charges against Nicasio Muriuki Njeru, Gerald Gikunju Mugo, Dennis Kariuki Njoka, Humphrey Mugendi, and Erasto Njoka Kiura are withdrawn.
- The above-named accused persons are ordered released from prison unless otherwise held on other lawful warrants.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
CRIMINAL CASE NO. 8 OF 2016
REPUBLIC .....................................................................PROSECUTOR
VERSUS
1. JOSIAH KINYUA NZOKA
2. NICASIIO MURIUKI NJERU
3. ABINJA MURUGI NJUE
4. GERALD GIKUNGU MUGO
5. DENNIS KARIUKI NJOKI
6. HUMPHREY MUGENDI
7. ERASTO NZOKA KIURA....................................................ACCUSEDS
RULING
1. When this matter came up for the pre-trial conference on 28th June 2016 Ms Mbae for the state applied to withdraw the murder charge against Nicasio Muriuki Njeru (the 2nd accused), Gerald Gikunju Mugo (the 4th accused), Dennis Kariuki Njoka (the 5th Accused), Humprey Mugendi (the 6th accused) and Erasto Njoka Kiura (the 7th accused), without specifying the enabling law for her to do so. According to her, she was instructed to have the charge withdrawn due to insufficient evidence against the said accused persons. The defence counsel did not object to the withdrawal of the charge against the said accused persons.
2. A charge of murder in terms of section 204 as read with section 203 of the Penal Code (Cap 63 )Laws of Kenya is an offence that carries a death penalty. Notwithstanding the seriousness of this offence, it is tried as a summary offence. This explains the timeous withdrawal by the public prosecutor. Previously there did exist a sieving or filtering process by way of preliminary inquiry, which later was replaced by committal proceedings, in which the magisterial courts through the filtering process determined which murder cases warranted trial by the High Court. R v Owako and Others (1974) EA 507 illustrates the effectiveness of the filtering process. Thereafter the latter procedure was in turn replaced with the current summary procedure, wherein the offence of murder is prosecuted in the same way as an offence of assault.
3. There ought to be a filtering or sieving process before a person is charged and tried with an offence that carries a death penalty such as murder. The pre-trial conference is not such a procedure. It is only designed to prepare a case for trial. It is not intended to ascertain whether there is a prima facie casein evidentiary terms to warrant an accused being put on trial for murder. The function of ascertaining the existence of a prima facie case to warrant trial is exclusively vested by law in the public prosecutor. I hereby draw attention to the authorities concerned to legislatively put in place a filtering or sieving process in respect of offences that carry the death penalty.
4. Now turning to the issue at hand, I find that the withdrawal of the murder charge against the said accused persons is not opposed by their counsel. The withdrawal of the charge in the High Court is authorized by sections 82 and 83 of the Criminal Procedure Code (Cap 75) Laws of Kenya. It is also authorized by Article 157 (6) (I) of the 2010 Constitution of Kenya, which provisions permit the Director of Public Prosecutions to discontinue at any stage before judgement is delivered in any criminal proceedings.
5. Those prosecutorial powers are exercised by officers subordinate to the Director of Public Prosecutions in terms of Article 157 (9) of the 2010 Constitution, or those to whom he has delegated his powers in terms of sections 82 and 83 of the Criminal Procedure Code, or those that the Director of Public Prosecutions has appointed as public prosecutors in terms of section 89 (5) of the Criminal Procedure Code or an advocate who is appointed for a specific case under section 89 (2) of the Criminal Procedure Code.
6. In the light of the foregoing matters I allow the withdrawal of the charge against Nicasio Muriuki Njeru (the 2nd accused), Gerald Gikunju Mugo (the 4th accused), Dennis Kariuki Njoka (the 5th Accused), Humphrey Mugendi (the 6th accused) and Erasto Njoka Kiura (the 7th accused). They are all ordered released from prison unless otherwise held on other lawful warrants.
RULING DATED, SIGNEDand DELIVERED in open court at EMBU this 30th day of JUNE 2016
In the presence of Ms Mbae for the State and Ms Muriuki for the first and second accused persons and also holding brief for Mr. Chomba for the 3rd, 5th and 7th accused persons and Mr. Andande for the 4th, 5th and 7th accused persons
Court clerk Njue
J.M BWONWONGA
JUDGE
30. 06. 16