[2022] KEHC 16573 (KLR)

Republic v Kipngeno (Criminal Revision E049 of 2022) [2022] KEHC 16573 (KLR) (16 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16573 (KLR)

Republic of Kenya

In the High Court at Kericho

Criminal Revision E049 of 2022

AN Ongeri, J

December 16, 2022

Between

Republic

Applicant

and

Henry Kipngeno

Respondent

Ruling

1. The prosecution filed this revision application against an order dismissing the prosecution case when the prosecution witnesses were in court.

2. Section 362 states that the High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded as passed and as to the regularity of any proceedings of any such subordinate court.

3. The respondent filed a notice of preliminary objection dated May 10, 2022, on the following grounds:i.That this court has no jurisdiction to hear and determine the application as it offends the provisions of section 364 (1) (b) and (5) of the Criminal Procedure Code;ii.That the applicant has misapprehended the law by invoking the revisionary jurisdiction of this court in this matter.

4. Both parties filed written submission in the notice of preliminary objection as follows.The applicant submitted that under section 202 of the Criminal Procedure Code the trial court has power to acquit the accused person for the non-attendance of the complainant on the fixed date of hearing, however in this case the complainant was present in court and ready to proceed with his case, there was however no facility to play the CCTV footage which was a crucial part of the evidence, and when the prosecution applied for adjournment, the court declined and proceeded to dismiss the prosecutions case under section 202 of the Criminal Procedure Code.

5. The applicant submitted that dismissing its case under section 202 of the Criminal Procedure Code amounted to an error apparent on the face of the record, and it was improper, irregular and illegal and should be reviewed. It was further submitted that the jurisdiction of this court to review the orders of the subordinate courts is grounded by Article 165 (6) of the Constitution of Kenya and section 362 and 364 of the Criminal Procedure Code.

6. It was further submitted by the applicant that the order dismissing the prosecutions case under section 202 of the Criminal Procedure Codewas improper and illegal and the court should review that order and remit it to the subordinate court to proceed to its logical conclusion.

7. The respondent on the other hand submitted that the accused having been acquitted, this court lacks jurisdiction to hear and determine the applicant’s revision application as it offends the provisions of section 364(1) (b) and (5) of the Criminal Procedure Code.

8. The respondent submitted that an order for acquittal is subject to an appeal and the applicant failed to exercise the option of appealing against the decision of the trial court and thus the revision application should not be entertained.

9. The respondent also submitted that the applicant does not deserve the reliefs sought as the unreasonable delay in filing the application for revision has not been explained and is thus an afterthought and anchored on laxity on the part of the prosecution to discharge its obligations and is geared towards covering up on the prosecution’s casualness in handling the suit at the trial court.

10. It was further submitted by the respondent that the trial court judiciously exercised its jurisdiction as the applicant had on several occasions been granted adjournment to avail witnesses to testify but failed to do so; and further that on the July 29, 2021, the trial court granted the prosecution the last adjournment and directed that the CCTV footage and all other necessary documents to be supplied to the defence which the prosecution never supplied before the next hearing date of September 23, 2021.

11. The respondent submitted that it is the duty of the prosecution to prosecute criminal matters and to avail witnesses in court to give evidence and therefore the failure of the prosecution counsel to proceed with the available witnesses on the impugned hearing date demonstrates that they were no longer interested with the case.

12. It was further submitted by the respondent that the orders made by the trial court in exercising its discretion to dismiss the suit under the provisions of section 202 and section 206 of the Criminal Procedure Code were neither irregular nor improper as it was within its power.

13. I find that the notice of preliminary objection has no merit. The law is clear that a party can move to the High Court under section 362 if there is an illegal order made by any subordinate court.

14. In the current case I find that the order given by the trial court to discharge the accused under section 202 were not proper.Section 202 of the CPC states as follows: -“If, in a case which a subordinate court has jurisdiction to hear and determine, the accused person appears in obedience to the summons served upon him at the time and place appointed in the summons for the hearing of the case, or is brought before the court under arrest, then, if the complainant, having had notice of the time and place appointed for the hearing of the charge, does not appear, the court shall thereupon acquit the accused, unless for some reason it thinks it proper to adjourn the hearing of the case until some other date, upon such terms as it thinks fit, in which event it may, pending the adjourned hearing, either admit the accused to bail or remand him to prison, or take security for his appearance as the court thinks fit.”

15. In the current case, the complainant was present in court and ready to proceed with his case, there was however no facility to play the CCTV footage which was a crucial part of the evidence, and when the prosecution applied for adjournment, the court declined and proceeded to dismiss the prosecution’s case under section 202 of the Criminal Procedure Code.

16. I find that the dismissal was improper, irregular and illegal and the same is hereby reviewed and set aside.

17. I allow the revision application and direct that the case proceeds before any other magistrate other than the one who discharged the accused person.

18. The accused person’s bond terms to remain the same.

DELIVERED, DATED AND SIGNED AT KERICHO THIS 16TH DAY OF DECEMBER, 2022A. N. ONGERIJUDGE