[2015] KEHC 3876 (KLR)
The court found that, given the number of accused persons and the circumstances suggesting the charges arose from mob justice, there was no reason to refuse the DPP's request to discontinue the proceedings. The court granted permission for discontinuance under section 25(1) of the ODPP Act. The court further held...
Source-derived case information.
- Citation
- [2015] KEHC 3876 (KLR)
- Parties
- Applicant: Republic; Appellant: Julius Muthengi Kiiru; Appellant: Boniface Mutu Muthui; Appellant: Mutuku Mbiti; Appellant: Daniel Maluki; Appellant: Jonathan Musyoka Kalaa; Appellant: James Mwenda Kiiru; Appellant: Christine Kavete Mwore; Appellant: Malia Kalaa
- Court
- High Court
- Court Station
- High Court at Garissa
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 1 of 2015
- Procedural Posture
- Criminal Case / Ruling on Application for Discontinuance Before Commencement of Trial
- Outcome
- criminal proceedings discontinued with court's permission
- Judges
- GMA Dulu
- Legal Topics
- Discontinuance of Proceedings, Prosecutorial Discretion, Murder Charge, Mob Justice, Powers of Odpp
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Julius Muthengi Kiiru
Appellant
Boniface Mutu Muthui
Appellant
Mutuku Mbiti
Appellant
Daniel Maluki
Appellant
Jonathan Musyoka Kalaa
Appellant
James Mwenda Kiiru
Appellant
Christine Kavete Mwore
Appellant
Malia Kalaa
Appellant
Procedural Posture
Criminal Case / Ruling on Application for Discontinuance Before Commencement of Trial
Legal Issues
- 1 Whether the Director of Public Prosecutions should be permitted to discontinue criminal proceedings under section 25(1) of the ODPP Act before trial commences.
- 2 Whether the court can bar the DPP from charging the accused persons again in future.
Ratio Decidendi
The court found that, given the number of accused persons and the circumstances suggesting the charges arose from mob justice, there was no reason to refuse the DPP's request to discontinue the proceedings. The court granted permission for discontinuance under section 25(1) of the ODPP Act. The court further held that it lacked jurisdiction to bar the DPP from charging the accused again in the future, as the trial had not commenced and the law does not empower the court to acquit in such circumstances. Accordingly, the criminal proceedings were discontinued with the court's permission.
Court Disposition
criminal proceedings discontinued with court's permission
Orders
- Permission granted for discontinuance of criminal proceedings against all accused persons.
- Criminal proceedings against all accused persons are discontinued.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT GARISSA
HIGH COURT CRIMINAL NO. 1 OF 2015
REPUBLIC ……………………………..…… APPLICANT
V E R S U S
JULIUS MUTHENGI KIIRU..........................APPELLANT
BONIFACE MUTU MUTHUI.........................APPELLANT
MUTUKU MBITI..........................................APPELLANT
DANIEL MALUKI........................................APPELLANT
JONATHAN MUSYOKA KALAA.................APPELLANT
JAMES MWENDWA KIIRU........................APPELLANT
CHRISTINE KAVETE MWORE...................APPELLANT
MALIA KALAA......................................... APPELLANT
RULING
The nine accused persons have been charged with murder contrary to Section 203 as read with section 204 of the Penal Code. They are alleged to have murdered Mutua
Mulima on 14 December 2014 at Kirumu village Kyuso Sub-County in Kitui County.
Before the first prosecution witness testified however, on the date of hearing which was 29th June 2015, the Prosecuting counsel requested the court to permit the Director of Public Prosecutions (DPP) to discontinue the Criminal Proceedings herein under Section 25(1) ODPP Act. Counsel informed the court that the case arose from the consequence of mob justice, and it was thus possible that wrong people were arrested and charged. He thus asked the court to allow the DPP to discontinue the criminal proceedings. Counsel stated that discontinuance of the proceedings would serve the wider interests of justice.
Learned defence counsel Ms. Njalale did not object to the request for discontinuance of the proceedings but felt that the accused should not be charged again.
I have considered the submissions on the prosecution and defence side on the request to discontinue the proceeding herein.
I have perused the provisions of section 25(1) of the ODPP Act.
In my view, with the sheer number of accused persons herein totaling nine, the suspects, the contention of the prosecuting counsel that the charges might have arised from an incident of mob justice I find no reason to decline the request by the prosecution. I thus grant permission for the discontinuance of the criminal proceedings herein against each of the accused persons.
I cannot order the DPP not to charge any of the accused as requested by the defence. This is because the trial has not even commenced. In addition, section 25 (1) of the ODPP Act does not donate jurisdiction as the court to acquit the accused.
The criminal proceedings herein are thus discontinued, with the permission of this court.
Dated and delivered at Garissa this 2nd day of July 2015.
GEORGE DULU
JUDGE