[2022] KEHC 13860 (KLR)

Republic v Odhiambo & another (Criminal Revision E051 ‘B’ of 2021) [2022] KEHC 13860 (KLR) (7 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13860 (KLR)

Republic of Kenya

In the High Court at Kakamega

Criminal Revision E051 ‘B’ of 2021

PJO Otieno, J

October 7, 2022

Between

Republic

Applicant

and

Samuel Odhiambo

1st Respondent

Catherine Odhiambo

2nd Respondent

Ruling

1. The respondents were initially charged with the offence of assault causing actual bodily harm contrary to section 251 of the Penal Code with the facts being set out to be that on the 8/11/2018 at Sianda Village in Kakamega North Sub-County of Kakamega County jointly assaulted Amos Shikomera Ndagwa by use of a panga and stones occasioning to him actual bodily harm.

2. They pleaded not guilty to the charge and were released on bond of Kshs 30,000/= with surety in the like sum or cash bail of Kshs 10,000/= each. The matter was then set down for hearing on five occasions but did not proceed thrice on account of lack of witnesses and twice on account of the trial court being away from the station.

3. It is the last proceedings recorded to have been conducted on February 27, 2021 which has provoked the current request for review. The proceedings read:-“27/7/2021Before Hon CN Njalale SRMPros: WangutusiC/A: WetereInter: Eng/KiswAccd:Matter adjourned as the trial Magistrate is on leave. Hearing on 9/11/2021. P/C: I do not have witnesses, am praying for another date.Court: This is a 2019 case. Witnesses have never come to court. Accused persons are acquitted u/s 202 CPC.ZJ NYAKUNDI, SPM”

4. The prosecution contend that on that day the trial court did not sit for reasons that the magistrate was on leave and the matter was taken before another judicial officer for purposes of taking a new date. It is added that even the prosecution’s counsel before that court had also proceeded on her annual leave and therefore the matter was not expected to be heard and should not have been dealt with by the acquittal of the accused persons whose presence is not recorded. To demonstrate the assertion that the trial court was not on duty, a notice issued by the Executive Officer dated May 26, 2021 was exhibited.

5. I have perused the file pursuant to the request contained in the letter dated November 25, 2021 and I find that the records of the court dated July 27, 2021 were not accurately kept. Not accurately kept because they allege the presiding officer to be Hon Njalale yet the notice issued by the court has not been denied and the handwriting on the file for the day is distinctly different from those taken before Hon Njalale the trial court.

6. When the trial court was away, which may have informed the decision of the prosecutor to proceed on leave, it was not expected that the matter would be heard so that witnesses are availed. When not expected to proceed and without a request by the accused, who the record is silent about, it was erroneous for the matter to be dismissed under section 202 of the Criminal Procedure Code.

7. I do find that the glaring error calls for correction by way of revision which the court hereby orders. The proceedings of July 27, 2021, erroneously recorded to have been taken before Hon CN Njalale, which ordered the acquittal of the accused persons under section 202 of the Criminal Procedure Code are set aside with the effect that the case against the two is reinstated to be heard before the trial court or if she be not at the station currently, by any other judicial officer other than Hon ZK Nyakundi.

DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 7TH DAY OF OCTOBER 2022. PATRICK JO OTIENOJUDGEIn the presence of:Ms Chala for the ApplicantNo appearance for the RespondentsCourt Assistant: Polycap Mukabwa