[2013] KEHC 2065 (KLR)
The court determined that it could not deliver a ruling on no case to answer because the prosecution had not closed its case. The record showed that two prosecution witnesses were yet to testify, and at no point had the state counsel indicated that the prosecution's case was closed. Therefore, the matter was...
Source-derived case information.
- Citation
- [2013] KEHC 2065 (KLR)
- Parties
- Respondent: Republic; Applicant: Julius Mboya Bwetete
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 100 of 2003
- Procedural Posture
- Criminal Case / Ruling on No Case to Answer (prematurely Fixed)
- Outcome
- Ruling on no case to answer deferred; case fixed for hearing to allow prosecution to call remaining witnesses.
- Judges
- AW Macharia
- Legal Topics
- No Case to Answer, Adjournment of Hearing, Prosecution Closing Case
- 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
Respondent
Julius Mboya Bwetete
Applicant
Procedural Posture
Criminal Case / Ruling on No Case to Answer (prematurely Fixed)
Legal Issues
- 1 Whether the prosecution had closed its case, warranting a ruling on no case to answer.
- 2 Whether the matter was properly fixed for a ruling on no case to answer before the prosecution concluded its evidence.
Ratio Decidendi
The court determined that it could not deliver a ruling on no case to answer because the prosecution had not closed its case. The record showed that two prosecution witnesses were yet to testify, and at no point had the state counsel indicated that the prosecution's case was closed. Therefore, the matter was prematurely fixed for a ruling. The court directed that the case be fixed for hearing to allow the prosecution to call its remaining witnesses, and ordered that the proceedings be updated and typed before the next hearing date. The court further noted that if the prosecution failed to avail its witnesses at the next hearing, it would then consider whether to close the prosecution's case.
Court Disposition
Ruling on no case to answer deferred; case fixed for hearing to allow prosecution to call remaining witnesses.
Orders
- The case is fixed for hearing for the prosecution to call its two remaining witnesses.
- The Deputy Registrar is directed to ensure that proceedings after 28th October, 2009 are typed before the next hearing date.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT ELDORET
CRIMINAL CASE NO. 100 OF 2003
REPUBLIC …................................................... PROSECUTOR/RESPONDENT
VERSUS
JULIUS MBOYA BWETETE .…................................ ACCUSED/APPLICANT
RULING
This matter was set aside for a ruling on no case to answer, on assumption that the prosecution had closed up its case. I have thoroughly gone through the record and noted the following:-
The typed proceedings on record are upto 7th May, 2012. Thereafter the matter has severally been placed before the Judge ostensibly for further hearing but in none of the dates has it proceeded. As at May, 2012, only two witnesses were remaining namely the doctor and the investigating officer. Hon. Justice Mshila granted the prosecution the last adjournment on 29th October, 2012. The matter was next fixed for hearing on 28th January, 2013 but court did not sit on this date. The Deputy Registrar fixed it for mention before the Judge on 13th February, 2013 but again on this day the Judge was away on official duties.
It was placed before me on 20th February, 2013 for mention for further orders. This is the first time I handled this matter. I directed that the proceedings be prove-read and fixed the matter for hearing on 16th April, 2013.
On 16th April, 2013, file was placed before Hon. Justice Ochieng. Defence counsel was unwell. The Judge fixed it for mention on 22nd April, 2013 to fix a hearing date.
On 22nd April, 2013, the matter was fixed for hearing by the Deputy Registrar on 9th July, 2013.
Unfortunately the next coram is for 9th August, 2013 and not 9th July, 2013. On this date 9th August, 2013, the matter was placed before me for hearing. Mr. Okara appeared for the accused and Mr. Mulati for the State.
Mr. Mulati was the first person to address court when he informed the court that he had filed submissions on a case to answer. Mr. Okara on his part told court that he did not wish to submit. I accordingly, fixed the matter for ruling on 31st July, 2013. By 31st July, 2013 I had not read the file and I pushed the ruling to 8th August, 2013.
From the above chronology, it is apparent that the matter was fixed for ruling pre-maturely. Pre-maturely because as at 9th August, 2013 when Mr. Mulati addressed the court to say he had filed his submissions, the prosecution had not closed its case. The matter was still pending for hearing and at no time had the state counsel informed the court that he had closed his case.
Given this scenario, I am not in a position to write the ruling as expected. The case is still upen for the prosecution to call its two remaining witnesses. They were granted a last adjournment and so if they do not avail the witnesses on the date that shall be fixed for hearing by the court, the court shall rule on whether they (prosecution) shall close their case.
At this juncture therefore, the best I can do is to fix the case for hearing. I further direct that the Deputy Registrar ensures that proceedings after 28th October, 2009 have been typed before the next hearing date. Parties had already agreed that the matter proceeds from where it had reached and pursuant to S. 200 (3) of the Criminal Procedure Code, I so order.
It is so ordered.
DATED and DELIVERED at ELDORET this 8th day ofAugust, 2013.
G. W. NGENYE – MACHARIA
JUDGE
In the presence of: