[2013] KEHC 870 (KLR)
The High Court found that the evidence presented by the prosecution, particularly from PW1 and PW2, implicated the accused in the events that led to the charges. The trial magistrate erred in acquitting the accused at the close of the prosecution case, as a prima facie case had been established. The only way to...
Source-derived case information.
- Citation
- [2013] KEHC 870 (KLR)
- Parties
- Appellant: Republic; Respondent: Moses Amwata
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 129 of 2012
- Procedural Posture
- Criminal Appeal / Judgment on Appeal
- Outcome
- Appeal allowed. Acquittal set aside. Accused to be put on his defence.
- Judges
- GMA Dulu
- Legal Topics
- Prima Facie Case, Acquittal, Malicious Damage to Property, Business Premises Dispute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Appellant
Moses Amwata
Respondent
Procedural Posture
Criminal Appeal / Judgment on Appeal
Legal Issues
- 1 Whether the trial magistrate erred in acquitting the accused for lack of a prima facie case.
- 2 Whether the evidence on record warranted putting the accused on his defence.
- 3 Whether the requirements under the Business Premises Tribunal Act were satisfied.
Ratio Decidendi
The High Court found that the evidence presented by the prosecution, particularly from PW1 and PW2, implicated the accused in the events that led to the charges. The trial magistrate erred in acquitting the accused at the close of the prosecution case, as a prima facie case had been established. The only way to ensure substantive justice and a fair trial under the Constitution is to require the accused to be put on his defence, allowing the trial court to evaluate both the prosecution and defence cases before determining guilt or innocence. The acquittal was therefore set aside, and the accused was ordered to be put on his defence.
Court Disposition
Appeal allowed. Acquittal set aside. Accused to be put on his defence.
Orders
- The ruling of the learned magistrate acquitting the accused/respondent is set aside.
- The acquittal is quashed.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
CRIMINAL APPEAL NO. 129 OF 2012
(An appeal from the Judgment of Hon. Mr. P. O. OOKO, SRM delivered on 2nd April 2012 in the Chief Magistrate’s Court at Kakamega in Criminal Case No. 1689 of 2011)
REPUBLIC …...................................................................................... APPELLANT
VERSUS
MOSES AMWATA ….................................................... ACCUSED/RESPONDENT
JUDGMENT
This is an appeal by the State against the decision of the learned magistrate P. O. OOKO, SRM delivered on 2nd of April, 2012 by J.S. Wesonga, RM with a finding that the accused be acquitted, because the prosecution had failed to establish a prima facie case against him to warrant him being put on his defence.
The State is allowed to file such an appeal on points of law.
The petition of appeal dated 24/4/2012 lists seven grounds of appeal. Mr. Oroni, learned Prosecuting Counsel argued the appeal on behalf of the State. He emphasized that the accused should have been put on his defence.
Mr. Ondieki for the accused (now respondent) opposed the appeal. With regard to count I, counsel argued that notice under the Business Premises Tribunal Act not served, and therefore no prima facie case had been established. With regard to count II on malicious damage to property, counsel argued that the accused had not participated in the destruction of the property. Therefore in counsel’s view the learned magistrate was correct in finding that no prima facie case had been established.
I have perused the proceedings. In particular, I have perused the evidence of PW1, Phaustine Oketch, PW2 Lydia Sakwa and PW3 Everline Ochieng. It is evident to me that there was a dispute regarding the business premises between the landlord and tenant. There was also damage to property of the tenant/complainant. The evidence on record, in my view established a prima facie case against the accused. The accused having been implicated in the events that precipitated the charges herein, especially on the evidence of PW1 and PW2, should have been put on defence. That is the only way that substantive justice can be seen to be done under our present Constitution. Putting the accused on his defence will give the trial court an opportunity to evaluate both sides of the allegations and substantively decide on proof of criminality or otherwise. I cannot say more on this, as I do not want to influence the decision of the trial court.
As a consequence, I find merits in the appeal. I set aside the ruling of the learned magistrate acquitting the accused/respondent. I quash the acquittal. I order that the accused be put on his defence.
Dated and delivered this 22nd day of November, 2013
George Dulu
JUDGE