[2021] KEHC 9164 (KLR)
The court found that the trial magistrate erred by acquitting the respondent under Section 210 of the Criminal Procedure Code before any prosecution witnesses had testified. The correct procedure, in the event of non-attendance of prosecution witnesses, is to consider acquittal under Section 202 of the Criminal...
Source-derived case information.
- Citation
- [2021] KEHC 9164 (KLR)
- Parties
- Applicant: Republic; Respondent: Nasra Hassan
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E004 of 2020
- Procedural Posture
- Criminal Revision / Ruling
- Outcome
- orders revised; trial reinstated
- Legal Topics
- Criminal Revision, Acquittal Procedure, Misapplication of Statute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Nasra Hassan
Respondent
Procedural Posture
Criminal Revision / Ruling
Legal Issues
- 1 Whether the trial magistrate erred in acquitting the respondent under Section 210 of the Criminal Procedure Code before prosecution witnesses had testified.
- 2 Whether the correct procedure for acquittal in the absence of prosecution witnesses was followed.
Ratio Decidendi
The court found that the trial magistrate erred by acquitting the respondent under Section 210 of the Criminal Procedure Code before any prosecution witnesses had testified. The correct procedure, in the event of non-attendance of prosecution witnesses, is to consider acquittal under Section 202 of the Criminal Procedure Code. The court held that the order of acquittal was made in error and revised the orders made on 15th October 2020, reinstating the trial and directing that the matter be assigned to another magistrate for hearing and determination.
Court Disposition
orders revised; trial reinstated
Orders
- The orders made on 15th October 2020 are revised.
- The trial in Shanzu CMC CR. Case No. 274 of 2020 is reinstated.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CRIMINAL DIVISION
CRIMINAL REVISION NO. E004 OF 2020
REPUBLIC.........................................APPLICANT
VERSUS
NASRA HASSAN...........................RESPONDENT
R U L I N G
1. The Applicant/state through a letter dated 1/12/2020 appeared that Shanzu SPMC CR. Case No. 274 of 2020 be called pursuant to Section 362 and 364 (1) (b) of the Criminal Procedure Code for purposes of revising order made on 15th day of October 2020 by Hon. D. Odhiambo Resident Magistrate erroneously under Section 210 of the Criminal Procedure Code acquitting the Respondent and yet the Section is only applicable when prosecution witnesses have testified and the state has closed its case.
2. It was the applicant’s position that the trial Magistrate acted in haste and in disregard to the tenets of fairness and justice as the prosecution had not delayed the case nor did the court give indication that the reasons for grant of adjournment were inadequate.
3. In consideration of the wrong application of Section 210 Criminal Procedure Code which is applicable where the court determination whether the prosecution’s evidence has established a prima facie case or not, I do find that the trial Magistrate erred. For failure of witnesses to attend the trial Magistrate ought to have acquitted the Respondent under Section 202 Criminal Procedure Code.
4. The orders made on 15th October 2020 are hereby revised. The trial in Shanzu CMC CR. Case No. 274 of 2020 is hereby reinstated. The Chief Magistrate (HOS) to assign the matter to another Magistrate for hearing and determination.
5. A copy of the ruling to be supplied to Hon. D. Odhiambo RM.
Dated, signedand deliveredat Mombasathis11thday ofFebruary, 2021.
HON. LADY JUSTICE A. ONG’INJO
JUDGE