[2022] KEHC 448 (KLR)
The court held that the 1st and 2nd accused, having escaped from lawful custody after presenting their defences, had waived their right to be present at the trial. Their absence should not prejudice the rights of the remaining accused to a fair and expeditious trial. There was no necessity to terminate proceedings...
Source-derived case information.
- Citation
- [2022] KEHC 448 (KLR)
- Parties
- Applicant: Republic; Defendant: Lereiyo Lekiale; Defendant: Nangoye Lenawaso; Defendant: Lepunyaki Lekaaso; Defendant: Munyeris Lekupanae; Defendant: Nkaaka Lepeta; Defendant: Tubula Lelmojok
- Court
- High Court
- Court Station
- High Court at Nanyuki
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 12 of 2017
- Procedural Posture
- Criminal Case / Ruling on Prosecution's Application for Nolle Prosequi and Continuation of Trial in Absence of Two Accused
- Outcome
- Application for nolle prosequi in respect of the 1st and 2nd accused rejected; trial to proceed in their absence.
- Judges
- HPG Waweru
- Legal Topics
- Murder Charge, Nolle Prosequi, Trial in Absentia, Right to Fair Trial
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Lereiyo Lekiale
Defendant
Nangoye Lenawaso
Defendant
Lepunyaki Lekaaso
Defendant
Munyeris Lekupanae
Defendant
Nkaaka Lepeta
Defendant
Tubula Lelmojok
Defendant
Procedural Posture
Criminal Case / Ruling on Prosecution's Application for Nolle Prosequi and Continuation of Trial in Absence of Two Accused
Legal Issues
- 1 Whether the prosecution's application for nolle prosequi in respect of the 1st and 2nd accused should be granted at this stage of the proceedings.
- 2 Whether the trial should proceed in the absence of the 1st and 2nd accused who escaped from lawful custody.
- 3 Whether the constitutional rights of the present accused to a fair and expeditious trial would be infringed by further delay.
Ratio Decidendi
The court held that the 1st and 2nd accused, having escaped from lawful custody after presenting their defences, had waived their right to be present at the trial. Their absence should not prejudice the rights of the remaining accused to a fair and expeditious trial. There was no necessity to terminate proceedings against the 1st and 2nd accused at this late stage, as the trial could proceed in their absence and judgment rendered for all accused. Should the 1st and 2nd accused be convicted and sentenced, they would serve their sentences upon re-arrest. The application for nolle prosequi and amendment of the information to exclude the 1st and 2nd accused was therefore rejected.
Court Disposition
Application for nolle prosequi in respect of the 1st and 2nd accused rejected; trial to proceed in their absence.
Orders
- The application for entry of nolle prosequi and amendment of the information to exclude the 1st and 2nd accused is rejected.
- The case shall proceed as before, and the 3rd, 4th, 5th, and 6th accused persons shall present their defences, the absence of the 1st and 2nd accused notwithstanding.
Full Case Text
Judgment text and source record
33 paragraphs
Republic v Lekiale & 5 others (Criminal Case 12 of 2017) [2022] KEHC 448 (KLR) (12 May 2022) (Ruling)
Neutral citation: [2022] KEHC 448 (KLR)
Republic of Kenya
In the High Court at Nanyuki
Criminal Case 12 of 2017
HPG Waweru, J
May 12, 2022
Between
Republic
Prosecution
and
Lereiyo Lekiale
1st Accused
Nangoye Lenawaso
2nd Accused
Lepunyaki Lekaaso
3rd Accused
Munyeris Lekupanae
4th Accused
Nkaaka Lepeta
5th Accused
Tubula Lelmojok
6th Accused
Ruling
1. The six (6) Accused persons herein, Lereiyo Lekiale, Nangoye Lenawaso, Lepunyaki Lekaaso, Munyeris Lekupanae, Nkaaka Lepeta And Tubula Lelmojok, are all jointly charged with murder contrary to sections 203 and 204 of the Penal Code. It is alleged in the information dated November 13, 2017 that on October 24, 2017 at Kilimoni Location, Laikipia–North Sub-County within Laikipia County, jointly with others not before the court, they murdered one Lmalewan Lesondoreka.
2. On December 13, 2017 the Accused persons all pleaded not guilty to the charge. Their trial commenced on February 13, 2018. Two prosecution witnesses testified before my predecessor, Kasango J. I took the evidence of the rest of the prosecution witnesses. The prosecution closed their case on September 30, 2019.
3. Due to the ensuing Covid-19 situation, the Accused persons’ defences did not commence until June 30, 2021 when the 1st and 2nd Accused gave theirs.
4. On 27/9/2021 it was reported to court by the prosecution that the 1st, 2nd and 5th Accused persons, along with other prisoners, had escaped from GK Prison, Nanyuki on September 25, 2021. The 5th Accused was subsequently re-arrested. The 1st and 2nd Accused remain at large to-date, and the other Accused are yet to present their defences.
5. On March 16, 2022 the prosecution applied to enter a nolle prosequi in respect to the 1st and 2nd Accused and the court continue with the cases of the other four Accused. The defence counsels had no objection.
6. As already noted, the 1st and 2nd Accused, who are at large having escaped from lawful custody, had already presented their defences. So, essentially what they would be waiting for is their judgment after the other accused persons have presented their defences and submissions (if any). They are not in court due to their own fault of escaping from lawful custody and have thus waived their constitutional right to be present in court. Their co-accused present also have a constitutional right to a fair trial without undue delay.
7. The considered view of this court is that the case should proceed as before in their absence to enable the remaining accused persons to give their defences and the case closed. The court will then render judgment in respect to all accused persons. Should the 1st and 2nd Accused be convicted and sentenced, they would serve their sentences when they are eventually re-arrested (if ever).
8. There is thus no necessity at all for the proceedings as against the 1st and 2nd Accused to be terminated at this late stage, and I reject the application for entry of nolle prosequi and the filing of an amended information to exclude the 1st and 2nd Accused. The case shall proceed as before, and the 3rd, 4th, 5th and 6th Accused persons shall present their defences, the absence of the 1st and 2nd Accused notwithstanding. It is so ordered.
DATED AND SIGNED AT NANYUKI THIS 11TH DAY OF MAY 2022H P G WAWERUJUDGEDELIVERED AT NANYUKI THIS 12TH DAY OF MAY 2022