Kenya Judgment

High Court · High Court at Garissa

Republic v Mubarak Sheikh Abdullahi [2017] KEHC 6681 (KLR)

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Source document

01

Holding and result

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.

02

Material facts

Parties

Republic

Applicant Counsel: Mr. Okemwa

Mubarak Sheikh Abdullahi

Defendant Counsel: Mr. Onono

03

Procedural history

  1. Posture

    Criminal Case / Ruling on Withdrawal of Proceedings

04

Questions and positions

Legal issues

Party arguments

Applicant
The prosecution, through Mr. Okemwa, applied for withdrawal of the criminal proceedings under section 25(1) of the Office of the Director of Public Prosecution Act 2013, citing inability to trace the court file and unavailability of witnesses. The mother of the accused also requested in writing for the accused's release.
Respondent
Defence counsel Mr. Onono did not oppose the application for withdrawal but criticized the prosecution for the lengthy delay in making the decision, noting that the prosecution was aware for a long time that no witnesses were available.

05

Court’s reasoning

  1. 01

    Section 25(1), Office of the Director of Public Prosecution Act 2013

    The Director of Public Prosecution has the statutory discretion to withdraw criminal proceedings where circumstances justify such withdrawal, including unavailability of witnesses and prolonged delay.

06

Ratio, limits and disposition

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.

Obiter and limits

  • The court noted the defence's lament regarding the prosecution's delay in making the decision to withdraw, despite knowing the lack of available witnesses.

Court disposition

proceedings discontinued; accused discharged

  • The criminal proceedings herein be and are hereby discontinued.
  • The accused herein is hereby discharged.

Source and reliance status

High Court

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Judgment reading view

Judgment text

The complete available source text.

Source document

High Court

Judgment

[2017] KEHC 6681 (KLR)

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

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Section 25(1), Office of the Director of Public Prosecution Act 2013

Legislation

Legislation referenced in the available case record.

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