[2017] KEHC 6681 (KLR)
The court found that, given the unavailability of witnesses, the inability to trace the court file, and the significant age of the case (originating in 2004), it was appropriate to allow the prosecution's application to withdraw the proceedings. The court exercised its discretion under section 25(1) of the Office of...
Source-derived case information.
- Citation
- [2017] KEHC 6681 (KLR)
- Parties
- Applicant: Republic; Defendant: Mubarak Sheikh Abdullahi
- Court
- High Court
- Court Station
- High Court at Garissa
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 24 of 2012
- Procedural Posture
- Criminal Case / Ruling on Withdrawal of Proceedings
- Outcome
- proceedings discontinued; accused discharged
- Judges
- GMA Dulu
- Legal Topics
- Withdrawal of Proceedings, Prosecutorial Discretion, Case Discontinuance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Mubarak Sheikh Abdullahi
Defendant
Procedural Posture
Criminal Case / Ruling on Withdrawal of Proceedings
Legal Issues
- 1 Whether the prosecution should be permitted to withdraw the criminal proceedings against the accused under section 25(1) of the Office of the Director of Public Prosecution Act 2013.
- 2 Whether the prolonged delay and unavailability of witnesses justify discontinuance of the case.
Ratio Decidendi
The court found that, given the unavailability of witnesses, the inability to trace the court file, and the significant age of the case (originating in 2004), it was appropriate to allow the prosecution's application to withdraw the proceedings. The court exercised its discretion under section 25(1) of the Office of the Director of Public Prosecution Act 2013, determining that the interests of justice would not be served by continuing with a case that could not be prosecuted effectively. The accused was accordingly discharged and the proceedings discontinued.
Court Disposition
proceedings discontinued; accused discharged
Orders
- The criminal proceedings herein be and are hereby discontinued.
- The accused herein is hereby discharged.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT GARISSA
CRIMINAL CASE NO.24 OF 2012
REPUBLIC…………………………………………………….PROSECUTOR
VERSUS
MUBARAK SHEIKH ABDULLAHI……………..………......………ACCUSED
RULING
The accused herein was brought to court in October 2004 in Nairobi in Criminal Case No. 137 of 2004. For various reasons, the matter did not take off for years and on 16th December 2016 the Prosecuting Counsel Mr. Okemwa informed the court that the police were not able to trace the court file. Counsel informed the court that the mother of the accused who was also the mother of the accused, Fatuma Shariff was in court and had asked in writing that the accused be released.
Counsel thus applied under section 25(1) of the Office of the Director of Public Prosecution Act 2013 for permission of this court to withdraw the criminal proceedings herein against the accused.
Learned defence counsel Mr. Onono did not oppose the request by the prosecution but lamented that the prosecution took very long to make such a decision while they knew long ago that they had no witnesses available for the case.
Having considered the request of the prosecution and the position taken by the defence as well as the circumstances of the case where witnesses are unavailable together with the age of the case, which is a 2004 case, I allow the request of the DPP.
I thus order that the criminal proceedings herein be and are hereby discontinued. The accused herein is hereby discharged.
Dated and delivered at Garissa this 22nd March 2017
GEORGE DULU
JUDGE