[2006] KEHC 3236 (KLR)
The court found that the reasons advanced by the prosecution for adjournment were unconvincing and did not merit a delay in the proceedings. The failure of the investigating officer and the O.C.S. to ensure proper handover of the police file was attributed to negligence on the part of the state. Since the...
Source-derived case information.
- Citation
- [2006] KEHC 3236 (KLR)
- Parties
- Appellant: Republic; Defendant: Omar Said Awadh
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 19 of 2000
- Procedural Posture
- Criminal Case / Ruling on Application for Adjournment and Final Determination
- Outcome
- acquittal
- Legal Topics
- Adjournment of Trial, Acquittal Procedure, Failure to Produce Witnesses
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Appellant
Omar Said Awadh
Defendant
Procedural Posture
Criminal Case / Ruling on Application for Adjournment and Final Determination
Legal Issues
- 1 Whether the prosecution's application for adjournment due to unavailability of witnesses is merited.
- 2 Whether the accused should be acquitted for lack of evidence under Section 306 of the Criminal Procedure Code.
Ratio Decidendi
The court found that the reasons advanced by the prosecution for adjournment were unconvincing and did not merit a delay in the proceedings. The failure of the investigating officer and the O.C.S. to ensure proper handover of the police file was attributed to negligence on the part of the state. Since the prosecution had no evidence to support the charge against the accused, the court acquitted the accused under Section 306 of the Criminal Procedure Code and ordered his immediate release unless otherwise lawfully held.
Court Disposition
acquittal
Orders
- The accused, Omar Said Awadh, is acquitted under Section 306 of the Criminal Procedure Code and shall be released forthwith unless otherwise lawfully held.
- The assessors serving in this case are discharged and should be paid allowances for yesterday and today.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA CRIMINAL CASE NO. 19 OF 2000
REPUBLIC …………………………................................................…………….APPELLANT
VERSUS
OMAR SAID AWADH………………................................................………………ACCUSED
Coram:
Ademba for the state
Mulongo for the Accused
Kinyua Court clerk
COURT RULING
This court has been urged to adjourn the hearing of this case on the ground that witnesses were not bonded because the investigating officer did not hand over the Police file when he was transferred from Mariakani Police Station to Bungoma Police Station. I have also been urged to summon the O.C.S. to give an explanation. The application for adjournment is opposed.
I have considered the reason advanced in support of the application for adjournment and I am not convinced that the same has merit. I reject the application for adjournment.
I have also been urged to summon the O.C.S. Mariakani Police Station to appear to explain. I believe this will be an exercise in futility because he has already given the reasons to the learned State Counsel. In a nutshell, the O.C.S. has failed in his duties because he could not have cleared P.C. Alfred Kivyaso before handing over such vital information. I am not ready to entertain the prayer because the answer is already known. Blame squarely lies on the O.C.S. and the state law office. In fact the learned state counsel had to apply for this matter to be adjourned to enable him get in touch with his men on the ground. They were not here yesterday though the defence counsel, a Mr. Gichana was also absent. The accused has been in custody since 1999.
Since the prosecution have no evidence to support the charge then at this juncture the accused is found not guilty. He is acquitted under Section 306 of the Criminal Procedure Code. He should be released forthwith from custody unless lawfully held. The assessors serving in this case are hereby discharged and should be paid yesterday’s and today’s allowance.
Dated and delivered this 21st day of February 2006.
J.K. SERGON
J U D G E