[2023] KEHC 23347 (KLR)

Republic v Lamerinyang (Criminal Case 37 of 2019) [2023] KEHC 23347 (KLR) (12 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23347 (KLR)

Republic of Kenya

In the High Court at Kitale

Criminal Case 37 of 2019

AC Mrima, J

October 12, 2023

Between

Republic

Prosecutor

and

Julius Arile Lamerinyang

Accused

Ruling

1. Julius Arile Lamerinyang, the Accused herein, was charged with the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code. It was alleged that he murdered one Solomon Wanjala Lumasi on March 27, 2019 at Bondeni village in Kapkopi Sub-location, Kwanza Sub-county within the Trans Nzoia County.

2. The accused was arraigned before this Court on January 2, 2009 where he was accordingly charged. He pleaded not guilty to the information.

3. Since the arraignment and charging thereof, the prosecution has for one reason or the other failed to avail witnesses in this matter. All along, the Accused has remained in custody having been unable to meet the bond terms.

4. When the matter came before this Court for hearing on January 31, 2023, a period of 4 years post plea-taking, the prosecution still did not have any witnesses. The Defence objected to an adjournment of the case. This Court, in allowing the adjournment, marked that as the last adjournment on the part of the prosecution. The hearing was fixed for May 11, 2023.

5. On the said hearing date, it again transpired that the prosecution did not have any witnesses. Learned State Prosecutor, Mr. Nderitu, then applied to have the case withdrawn under Section 87(a) of theCriminal Procedure Code.

6. The Learned Defence Counsel, Mr. Mukhabane, opposed to the withdrawal on the basis of Section 87(a) of the Criminal Procedure Code. Counsel instead argued that the provisions of Section 87(a) of the Criminal Procedure Code do not apply to murder trials before the High Court. He submitted that the appropriate provision for withdrawal of ,criminal cases in the High Court was Article 157(6)(c) of theConstitution.

7. The Court retired to consider the arguments. The Court has now carefully considered the matter.

8. Section 87(a) of the Criminal Procedure Code, Chapter 75 of the Laws of Kenya (hereinafter referred to as 'the CPC') states as follows: -87. Withdrawal from prosecution in trials before the surbodinate courts:In a trial before a subordinate court a public prosecutor may, with the consent of the court or on the instructions of the Director of Public Prosecutions, at any time before judgment is pronounced, withdraw from the prosecution of any person, and upon withdrawal-a.If it is made before the accused person is called upon to make his defence, he shall be discharged, but the discharge of an accused person shall not operate as a bar to subsequent proceedings against him on account of the same facts;b.…….

9. It is apparent from the plain reading of the above that Section 87 of the CPC relates to trials before a subordinate Courts. This Court has carefully perused the CPC in order to find if there exists a similar provision for trials in the High Court, but in vain.

10. This Court has also sought to find out if there exists a provision to the effect that Section 87 CPC shall apply mutatis mutandis to trials before the High Court, but also in vain. The Court is alive to the legal position that there are some instances where the provisions of the trials before the subordinate Courts applies in the High Court. However, in such cases the CPC clearly states so.

11. An example at hand is provided for under Section 201(2) of the CPC as under: -201(i)....(ii)The provisions of Section 200 of this Act shall apply mutatis mutandis to trials held in the High Court.

12. As the foregoing is not the position with respect to Section 87(a) of the CPC, then this Court finds and hold that the provisions of Section 87(a) of the CPC do not apply to trials before the High Court. Therefore, any application for withdrawal of a murder case in the High Court made pursuant to Section 87(a) of the CPC can only be misconceived and is always for rejection.

13. Having held as much, that Is not the end of the road for the prosecution in instances where it intends to withdraw murder cases. The prosecution, however still has three options. The first option is by way of a Nolle Prosequi under Section 82 of the CPC. The second option is for the State to discontinue the proceedings under Article 157(6)(c) of theConstitution as read with Section 25 of the Office of the Director of Public Prosecutions Act, 2013. Lastly, murder cases may be compromised under the auspices of plea agreement.

14. Consequently, this Court makes the following final orders: -a.The application to withdraw this case under Section 87(a) of the Criminal Procedure Code is hereby rejected.b.This Court, however, grants leave to the Prosecution to withdraw this case under Article 157(6)(c) of the Constitution as read with Section 25 of the Office of the Director of Public Prosecutions Act, 2013. The case is accordingly marked as withdrawn.c.The accused is hereby set at liberty forthwith unless otherwise lawfully held.Orders accordingly.

DELIVERED, DATED AND SIGNED AT KITALE THIS 12TH DAY OF OCTOBER, 2023. A. C. MRIMAJUDGERuling delivered virtually and in the presence of: -Mr. Mukhabane, Learned Counsel for the Appellant.Miss Kiptoo, Learned Prosecution Counsel instructed by the Office of the Director of Public Prosecutions for the Respondent.Regina/Chemutai – Court Assistants.