[2009] KEHC 1335 (KLR)
The court held that section 214 of the Criminal Procedure Code only permits the amendment or substitution of a charge before the close of the prosecution case. Allowing the prosecution to substitute the charge after the close of its case would prejudice the accused and is not contemplated by the statute. The court...
Source-derived case information.
- Citation
- [2009] KEHC 1335 (KLR)
- Parties
- Applicant: Republic; Defendant: Kajole Angore
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 202 of 2009
- Procedural Posture
- Criminal Revision / Ruling on Propriety of Substituted Charge After Close of Prosecution Case
- Outcome
- Orders allowing substitution of the charge after close of prosecution case revised; trial to proceed on original charge sheet.
- Judges
- DO Ohungo
- Legal Topics
- Substitution of Charge, Procedure After Close of Prosecution, Accused Rights, Section 214 Cpc
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Kajole Angore
Defendant
Procedural Posture
Criminal Revision / Ruling on Propriety of Substituted Charge After Close of Prosecution Case
Legal Issues
- 1 Whether the substitution of the charge sheet after the close of the prosecution case was lawful under section 214 of the Criminal Procedure Code.
- 2 Whether the accused was prejudiced by the substitution of the charge after the prosecution case had closed.
- 3 Whether the trial could proceed under section 200(3) of the Criminal Procedure Code after the improper substitution.
Ratio Decidendi
The court held that section 214 of the Criminal Procedure Code only permits the amendment or substitution of a charge before the close of the prosecution case. Allowing the prosecution to substitute the charge after the close of its case would prejudice the accused and is not contemplated by the statute. The court found that the substitution of the charge sheet after the prosecution had closed its case was unlawful and prejudicial to the accused. Consequently, the orders allowing for the substitution were revised, and the trial was directed to proceed to the defence hearing based on the original charge sheet relied upon at the close of the prosecution case.
Court Disposition
Orders allowing substitution of the charge after close of prosecution case revised; trial to proceed on original charge sheet.
Orders
- The orders permitting substitution of the charge after the close of the prosecution case are revised.
- The case shall proceed to defence hearing based on the original charge sheet as at the close of the prosecution case.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT MALINDI
Criminal Revision 202 of 2009
REPUBLIC……………………………………………….APPLICANT
VERSUS
KAJOLE ANGORE………………………………………..ACCUSED
R U L I N G
This file has been placed before me by the Chief Magistrate Malindi on the strength of a letter by her dated 23rd October 2009.
The accused in this case before the law court Criminal case 2051 of 2005 R V Kajore Angore was charged with the offence of creating a disturbance contrary to section 95 (1) (b) of the Penal Code.
Seven prosecution witnesses testified and accused was put to his defence. He absconded from 15-6-06 to 12-3-09. He was brought to court under arrest and on 6/4/09 a substituted charge sheet was introduced and read out to the accused and he pleaded not guilty. Before proceeding with the matter, on 21/1/09, the court explained to accused his rights under section 200 (3) Criminal Procedure Code and accused was mute.
However the court suspected he might be mentally challenged and ordered for a psychiatrist’s report but the same confirmed that he was fit to plead. Again on 23/10/09, the Trial Magistrate explained to him his trial rights under section 200 (3) Criminal Procedure Code and his reply was that he wanted the case to proceed from where it had reached.
The substitution of the charge sheet was done after the close of prosecution case. Section 214 of the Criminal Procedure Code provides;-
(1)Where at any stage of a trialbeforethe close of the case from the prosecution, it appears to the court, that the charge is defective either in substance or in form, the court may make such order for the alteration of the charge, either by way of amendment of the charge or by the substitution or addition of a new charge as the court finds necessary to meet the circumstances of the case;-
The situation, substituting here is that prosecution had already closed its case – which does not fit in with what is envisaged by section 214 Criminal Procedure Code. I think that provision clearly focused on amendment before close of prosecution case to avoid creating opportunities for prosecution to patch up its case so that the evidence fits with the charge, to the prejudice of the accused. To have allowed prosecution to amend the charge after the close of the case, went against the grain of section 214 CPC and accused was prejudiced.
The court cannot therefore proceed with the case under provisions of section 200(3) Criminal Procedure Code. To that extent I revise the orders made allowing for the substitution of the charge and direct that the case do proceed to defence hearing based on the charge sheet that had been relied on at the close of prosecution case.
Dated this 2nd day of November 2009 at Malindi.
H A OMONDI
JUDGE