[1979] KEHC 26 (KLR)
The court held that the magistrate was within his discretion to withhold consent for withdrawal under section 87(a) of the Criminal Procedure Code, as there were no instructions from the Attorney-General and the case had been pending for a significant period. However, the magistrate erred in applying section 204 of...
Source-derived case information.
- Citation
- [1979] KEHC 26 (KLR)
- Parties
- Appellant: Republic; Respondent: Malek Abdulla Mohamed
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 113 of 1978
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Appeal allowed in part; acquittal under section 204 set aside; prosecution may continue if desired, but no further action intended.
- Judges
- E Cotran
- Legal Topics
- Withdrawal of Prosecution, Criminal Procedure Code Interpretation, Magistrate Discretion, Acquittal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Appellant
Malek Abdulla Mohamed
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the magistrate erred in law by rejecting the prosecution's application for withdrawal under section 87(a) of the Criminal Procedure Code without stating reasons.
- 2 Whether the magistrate erred in law by withdrawing the case under section 204 of the Criminal Procedure Code when no such application had been made by the complainant.
Ratio Decidendi
The court held that the magistrate was within his discretion to withhold consent for withdrawal under section 87(a) of the Criminal Procedure Code, as there were no instructions from the Attorney-General and the case had been pending for a significant period. However, the magistrate erred in applying section 204 of the Criminal Procedure Code, as no application for withdrawal had been made by the complainant, nor were reasons provided for such withdrawal. The acquittal under section 204 was therefore set aside, but the prosecution indicated they would not pursue the matter further.
Court Disposition
Appeal allowed in part; acquittal under section 204 set aside; prosecution may continue if desired, but no further action intended.
Orders
- The order and consequential acquittal of the respondent under section 204 of the Criminal Procedure Code is set aside.
- The prosecution may, if they so desire, continue with the proceedings against the respondent upon the same charge.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
HIGH COURT APPELLATE SIDE KISUMU
CRIMINAL APPEAL NO 113 OF 1978
REPUBLIC .............................................APPELLANT
VERSUS
MALEK ABDULLA MOHAMED............RESPONDENT
JUDGMENT
This is an appeal by the prosecution under section 348A of the Criminal Procedure Code. There is no dispute that the appeal involves a matter of law and is therefore competent.
On 7th October 1977, the respondent appeared before a Resident Magistrate in Kisumu charged with wilfully failing to comply with a requirement made by an authorised officer, contrary to section 52 of the Employment Act; the particulars being that the respondent, of New Cool Inn Hotel and Restaurant, failed on 19th August 1977 to produce documents relating to the employment of John Were and eight others, as required by the labour officer, Kisumu. The respondent pleaded “Not Guilty”. The hearing was adjourned from time to time, until 26th January 1978. On that day, Mr Ochieng’, who was prosecuting, applied to the Senior Resident Magistrate, Kisumu, for the withdrawal of the case under section 87 (a) of the Criminal Procedure Code. That section reads:
In any trial before a subordinate court any public prosecutor may, with the consent of the Court or on the instructions of the Attorney-General, at any time before judgment is pronounced, withdraw from the prosecution of any person, and upon such withdrawal - (a) if it is made before the accused person is called upon to make his defence, he shall be discharged, but such discharge of an accused person shall not operate as a bar to subsequent proceedings against him on account of the same facts; ...
The magistrate appears not to have acceded to this requirement and said “case withdrawn under section 204 of the Criminal Procedure Code as it is pending since October 1977”. Section 204 provides:
If a complainant, at any time before a final order is passed in any case under this Part, satisfies the Court that there are sufficient grounds for permitting him to withdraw his complaint, the Court may permit him to withdraw the same and shall thereupon acquit the accused.
On appeal to this Court, the prosecution take two grounds of appeal:
(1) the Senior Resident Magistrate erred in law in rejecting the application for the withdrawal of the prosecution under section 87 (a) of the Criminal Procedure Code without stating his reasons; and
(2) the Senior Resident Magistrate erred in law in withdrawing the case under section 204 of the Criminal Procedure Code when in fact no application for the withdrawal of this case under this section had been made by the complainant.
I do not agree with ground (1). It is clear that a case can only be withdrawn under section 87 (a) if the consent of the court is obtained or upon the instructions of the Attorney-General. There were no instructions from the Attorney-General in this case, so that the magistrate had a discretion to grant or withhold consent. He gave a good reason for withholding it, namely that the case has been pending since October 1977.
On the other hand, I fully agree with ground (2) of appeal because section 204 in terms contemplates (1) an application by the complainant to withdraw under that section, and (2) satisfaction by the Court that there are sufficient grounds for permitting such a withdrawal. In this case the prosecution neither applied for nor gave reasons for withdrawal under section 204.
I would therefore allow this appeal to the extent that I set aside the order and consequential acquittal of the respondent under section 204 of the Criminal Procedure Code. The effect of this is that the prosecution may, if they so desire, continue with the proceedings against the respondent upon the same charge. However, I am assured by the prosecution that their intention in appealing was to clarify the law and they propose to take no further action in the matter.
Order accordingly.
Dated and delivered at Kisumu 15th June 1979.
E. COTRAN
JUDGE