[2023] KEHC 3137 (KLR)
The court found that since all four accused persons, initially minors, had escaped from lawful custody and remained at large despite efforts to apprehend them, it was not possible to continue holding the file open or proceed with the prosecution in their absence. The prosecution, exercising its constitutional...
Source-derived case information.
- Citation
- [2023] KEHC 3137 (KLR)
- Parties
- Applicant: Republic; Respondent: LOO; Respondent: EO; Respondent: DO; Respondent: PO
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 16 of 2018
- Procedural Posture
- Criminal Case / Ruling on Nolle Prosequi Application
- Outcome
- prosecution terminated by nolle prosequi; file closed
- Judges
- RE Aburili
- Legal Topics
- Murder Charge, Nolle Prosequi, Juvenile Offenders, Escape From Custody
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Republic
Applicant
LOO
Respondent
EO
Respondent
DO
Respondent
PO
Respondent
Procedural Posture
Criminal Case / Ruling on Nolle Prosequi Application
Legal Issues
- 1 Whether the prosecution can be terminated by nolle prosequi when accused persons are at large.
- 2 Whether the court should close the file in the absence of the accused persons.
Ratio Decidendi
The court found that since all four accused persons, initially minors, had escaped from lawful custody and remained at large despite efforts to apprehend them, it was not possible to continue holding the file open or proceed with the prosecution in their absence. The prosecution, exercising its constitutional mandate, properly sought to terminate the proceedings by nolle prosequi. The court granted leave for the entry of nolle prosequi against all four accused persons, ordered that their prosecution for murder shall not continue unless and until they are apprehended, and directed that the file be closed. The decision was grounded on the constitutional powers of the Director of Public...
Court Disposition
prosecution terminated by nolle prosequi; file closed
Orders
- Leave is granted to the prosecution to enter nolle prosequi against all four accused persons.
- The prosecution for the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code shall not continue.
Full Case Text
Judgment text and source record
29 paragraphs
Republic v LOO & 3 others (Criminal Case 16 of 2018) [2023] KEHC 3137 (KLR) (13 April 2023) (Ruling)
Neutral citation: [2023] KEHC 3137 (KLR)
Republic of Kenya
In the High Court at Kisumu
Criminal Case 16 of 2018
RE Aburili, J
April 13, 2023
Between
Republic
Prosecution
and
LOO
1st Accused
EO
2nd Accused
DO
3rd Accused
PO
4th Accused
Ruling
1. This matter was initiated in 2018 against the four accused persons LOO, EO, DO and PO who were all jointly charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code.
2. However, the court record shows that the four were then minors and upon being remanded at Kisumu Remand Home, and later at Kodiaga Remand due to their unbecoming behaviour at the initial facility, they all escaped from lawful custody on 2nd November 2019 and have never been rearrested despite efforts by Ahero Police Station as per their letter dated 29th June 2022 addressed to court.
3. It has since emerged that they are of age and left their abode, the custody of their parents and close family members.
4. It will therefore not be possible to continue holding this file open when there is no accused person to be prosecuted.
5. The ODPP has through Senior Assistant Director of Public Prosecutions Ms Catherine Mwaniki filed a Nolle Prosequi dated 3rd April 2023 pursuant to Article 157 (6) (c) and (9) of the Constitution terminating these murder proceedings.
6. As the accused persons are at large, and pending their possible arrest in future to face the same charge of murder, I hereby grant leave to the prosecution to enter Nolle Prosequi against all the four (4) accused persons herein LOO, EO, DO and PO and order that their prosecution for the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code shall not continue.
7. This file is accordingly closed.
8. I so order.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 13THDAY OF APRIL, 2023R. E. ABURILIJUDGE