[2014] KEHC 5866 (KLR)
The High Court found that the prosecution's application to withdraw the case under Section 87(a) of the Criminal Procedure Code was made in good faith for the legitimate purpose of consolidating it with another related criminal case. The letter from the DCIO, which formed the basis of the application, did not...
Source-derived case information.
- Citation
- [2014] KEHC 5866 (KLR)
- Parties
- Applicant: Republic; Respondent: Peter Mukoma Chege
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 59 of 2013
- Procedural Posture
- Criminal Revision / Ruling on Prosecution's Application to Withdraw Case for Consolidation
- Outcome
- Application for withdrawal under Section 87(a) of the Criminal Procedure Code for consolidation allowed; trial magistrate's order rejecting withdrawal revised.
- Judges
- GO Shikwe
- Legal Topics
- Withdrawal of Criminal Cases, Consolidation of Cases, False Pretences, Malafides in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Peter Mukoma Chege
Respondent
Procedural Posture
Criminal Revision / Ruling on Prosecution's Application to Withdraw Case for Consolidation
Legal Issues
- 1 Whether the prosecution's application to withdraw the case under Section 87(a) of the Criminal Procedure Code for purposes of consolidation was proper.
- 2 Whether the trial magistrate erred in rejecting the application on grounds of alleged malice and mischief.
Ratio Decidendi
The High Court found that the prosecution's application to withdraw the case under Section 87(a) of the Criminal Procedure Code was made in good faith for the legitimate purpose of consolidating it with another related criminal case. The letter from the DCIO, which formed the basis of the application, did not demonstrate any malice, mischief, or bias. The trial magistrate's suspicion of malafides was unfounded, as the advice in the letter was clear and procedural. The court held that withdrawal for consolidation is permissible unless there is clear evidence of malice, which was absent in this instance. Accordingly, the order rejecting the prosecution's application was revised, and...
Court Disposition
Application for withdrawal under Section 87(a) of the Criminal Procedure Code for consolidation allowed; trial magistrate's order rejecting withdrawal revised.
Orders
- The order of the trial magistrate rejecting the application to withdraw the case is revised.
- Withdrawal under Section 87(a) of the Criminal Procedure Code for consolidation with Criminal Case Number 2793 of 2012 is allowed.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CRIMINAL REVISION NO. 59 OF 2013
REPUBLIC …......…....................................................................….. APPLICANT
VERSUS
PETER MUKOMA CHEGE .…….......................................…RESPONDENT
RULING
PETER MUKOMA CHEGE was charged in Chief Magistrate's Criminal Case Number 1344 of 2012 with the offence of obtaining money by false pretences contrary to Section 313 of the Penal Code. He pleaded not guilty on the 24th day of April, 2012 and the case later proceeded to hearing. On 29th day of January, 2013 the prosecution made an application to withdraw the case under Section 87(a) of the Criminal Procedure Code for reasons of consolidating the case at hand with another one Chief Magistrate's Criminal Case Number 2793 of 2012 which was fixed for hearing on 7th February, 2013 and which consolidation was to be done after investigations were completed.
The application was opposed by Counsel for the Accused Mr. Gakuhi on the grounds that according to the letter giving instructions for the withdrawal of the case it was noted that the matter was civil in nature and hence parties should seek civil remedies.
In her ruling the learned trial magistrate declined to allow the withdrawal of the case under Section 87(a) of the Criminal Procedure Code principally on the grounds that three Witnesses had already testified in the case she was handling whereas Criminal case Number 2793 of 2012 had not even commenced. She read mischief and malafides in the prosecutions application.
I have duly perused the letter dated 27th November, 2012 and which contained the advise to the DCIO Urban to proceed to withdraw the case under Section 87(a) of the Criminal Procedure Code.
In the said letter it is noted that no traces of forgery, false pretences were noted and parties were advised to seek civil remedies but it also gave the way forward being withdrawal for consolidation purposes after amendment of the charges sheet.
I find no malice, mischief or bias in the advice contained in the letter, the spirit of which the prosecution was acting upon when making the application for withdrawal of the case under Section 87(a) of the Criminal Procedure Code.
A withdrawal of a case for purposes of consolidation with another one is a good ground unless it can be shown that it is tainted with malice and is malafides.
The order of the learned trial magistrate rejecting the application to withdrawal the case against the Accused under Section 87(a) of the Criminal Procedure Code for purposes of consolidation is hereby revised. A withdrawal under Section 87(a) of the Criminal Procedure Code for purposes of consolidation with Criminal Case Number 2793 of 2012 is allowed.
The original file to be returned back to the subordinate Court for further action.
Ruling delivered dated and signed this 8th day of April, 2014.
…....................
M. MUYA
JUDGE
8TH APRIL, 2014
In the presence of:-
Learned State Counsel
Learned Counsel for the defence Mr. Gakuhi
Court clerk Musundi
M. MUYA
JUDGE
Court: Mention on 24th April, 2014 before the trial Court.
….............
M. MUYA
JUDGE
8TH APRIL, 2014