[2023] KEHC 25536 (KLR)
The court found that the prosecution was unable to proceed with the murder case due to the unavailability of a key witness, as confirmed by the Investigating Officer. The defence raised no objection to the withdrawal application, and the court was satisfied that no prejudice would be occasioned to the accused...
Source-derived case information.
- Citation
- [2023] KEHC 25536 (KLR)
- Parties
- Applicant: Republic; Defendant: George Otieno Owiti; Defendant: Samson Adinda Gombe
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 25 of 2020
- Procedural Posture
- Criminal Case / Ruling on Prosecution Application for Withdrawal of Charges
- Outcome
- Application for withdrawal of murder charge allowed; accused persons discharged under Section 87(a) of the Criminal Procedure Code.
- Judges
- RE Aburili
- Legal Topics
- Withdrawal of Charges, Murder, Criminal Procedure, Discharge of Accused
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Republic
Applicant
George Otieno Owiti
Defendant
Samson Adinda Gombe
Defendant
Procedural Posture
Criminal Case / Ruling on Prosecution Application for Withdrawal of Charges
Legal Issues
- 1 Whether the prosecution's application to withdraw the murder charge under Section 87(a) of the Criminal Procedure Code should be granted.
- 2 Whether the discharge of the accused persons would occasion prejudice to the accused or victims.
Ratio Decidendi
The court found that the prosecution was unable to proceed with the murder case due to the unavailability of a key witness, as confirmed by the Investigating Officer. The defence raised no objection to the withdrawal application, and the court was satisfied that no prejudice would be occasioned to the accused persons or victims by allowing the withdrawal. Accordingly, the court exercised its discretion under Section 87(a) of the Criminal Procedure Code to allow the withdrawal of the murder charge and ordered the discharge of the accused persons, with liberty for the prosecution to revive the case in accordance with the law should circumstances change.
Court Disposition
Application for withdrawal of murder charge allowed; accused persons discharged under Section 87(a) of the Criminal Procedure Code.
Orders
- The murder charge against George Otieno Owiti and Samson Adinda Gombe is withdrawn under Section 87(a) of the Criminal Procedure Code.
- The two accused persons are discharged, subject to revival of the case by the prosecution in accordance with the law.
Full Case Text
Judgment text and source record
21 paragraphs
Republic v Owiti & another (Criminal Case 25 of 2020) [2023] KEHC 25536 (KLR) (14 November 2023) (Ruling)
Neutral citation: [2023] KEHC 25536 (KLR)
Republic of Kenya
In the High Court at Kisumu
Criminal Case 25 of 2020
RE Aburili, J
November 14, 2023
Between
Republic
Prosecutor
and
George Otieno Owiti
1st Accused
Samson Adinda Gombe
2nd Accused
Ruling
1. On account that key witness to this case cannot be traced as deposed by the Investigating Officer and submitted on by the Prosecution Counsel, and as the defence counsel has no objection to the application for withdrawal of the charge of murder facing the two (2) accused persons herein under Section 87(a) of the Criminal Procedure Code, and as no prejudice will be occasioned to the accused person or victims of the offence, I hereby allow the application by the prosecution and grant the order of withdrawal of the Information for murder against the two accused persons herein George Otieno Owiti and Samson Adinda Gombe under Section 87(a) of the Criminal Procedure Code.
2. Accordingly, the two accused persons are hereby discharged but should prosecution wish to revive the case, they shall do so in accordance with the law.
3. I hereby discharge the sureties for the accused persons and order that any security deposited in court be returned to the respective sureties on proper identification and acknowledgment thereof.
4. This file is accordingly closed.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 14TH DAY OF NOVEMBER, 2023R. E. ABURILIJUDGE