[2018] KEHC 2773 (KLR)
The court determined that, although the prosecution raised valid concerns about delay and the costs of witness protection, the interests of justice would be best served by allowing the accused a limited opportunity to make a formal offer for plea bargaining. The court reasoned that only if the offer is rejected...
Source-derived case information.
- Citation
- [2018] KEHC 2773 (KLR)
- Parties
- Applicant: Republic; Defendant: Sabastian Ambani Musungu
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 11 of 2018
- Procedural Posture
- Criminal Case / Pre Trial; Application for Adjournment to Allow Plea Bargaining Offer
- Outcome
- Application for adjournment to allow plea bargaining offer granted.
- Legal Topics
- Plea Bargaining, Adjournment of Trial, Witness Protection, Prosecutorial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Sabastian Ambani Musungu
Defendant
Procedural Posture
Criminal Case / Pre Trial; Application for Adjournment to Allow Plea Bargaining Offer
Legal Issues
- 1 Whether the accused should be granted time to make a formal offer for plea bargaining before the trial proceeds.
- 2 Whether the testimony of protected prosecution witnesses should be put on hold pending consideration of the plea offer.
- 3 Whether the prosecution or the accused is responsible for any delay in the proceedings.
Ratio Decidendi
The court determined that, although the prosecution raised valid concerns about delay and the costs of witness protection, the interests of justice would be best served by allowing the accused a limited opportunity to make a formal offer for plea bargaining. The court reasoned that only if the offer is rejected would the trial proceed, and that the delay occasioned by considering the offer cannot be attributed to the Office of the Director of Public Prosecution. The court exercised its discretion to put on hold the testimony of protected witnesses for a short, defined period, thereby balancing the need for expeditious trial with the accused's right to pursue plea bargaining. The court set...
Court Disposition
Application for adjournment to allow plea bargaining offer granted.
Orders
- The accused is allowed 3 days to make a formal offer for plea bargaining.
- The Office of the Director of Public Prosecution will have 3 days to respond to the offer.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT KISUMU
CRIMINAL CASE NO 11 OF 2018
BETWEEN
REPUBLIC.............................................................................PROSECUTION
AND
SABASTIAN AMBANI MUSUNGU.............................................ACCUSED
RULING
1. The case is scheduled for hearing this morning.
2. When the matter was first called out, Miss Barasa, learned State Counsel, and Mr. Onsongo the learned advocate for the accused indicated that they were both ready to proceed.
3. Mr. Onsongo sought a little time to enable him first attend to another case which was coming up before Justice Boaz Olao. He requested that this case be slated last amongst the four criminal cases scheduled for trial today.
4. When the court had concluded the first of the said cases, this case was called out, and Mr. Onsongo advocate asked for time, to enable him make a formal offer for plea bargaining.
5. Miss Barasa objected to the application for more time, considering that this was the third time when the case was coming up.
6. The learned state counsel pointed out that the Witness Protection Agency was incurring very major expenses in keeping the prosecution witnesses safe.
7. Therefore, it was suggested that even if the accused should wish to give an offer for plea bargaining, the witnesses who were in court should be allowed to testify.
8. However, the accused expressed the view that if witnesses testified before his offer was accorded consideration, that may well constitute a waste of judicial time.
9. Miss Barasa also pointed out that the family of the deceased felt that the prosecution were delaying the case un-necessarily.
10. Mr. Onsongo pointed out that if the offer for plea bargaining was given a chance, the case would be concluded much sooner than would be the case if the matter proceeded to a full trial.
11. In my considered view, one can only talk about a faster conclusion of the matter through plea bargaining, if it were assumed that the offer would be accepted. If the offer were to be rejected, a trial would still be conducted.
12. At the moment, Miss Barasa is of the view that the circumstances under which the offence was committed are unlikely to persuade the prosecution to accept the offer by the accused for plea bargaining. However, the offer has not yet been made, and it cannot therefore have been rejected.
13. The director of Public Prosecution has the exclusive mandate to determine whether or not to accept the offer when it is made.
14. I appreciate that when the offer is being given consideration, there would be a delay, if the trial was put on hold.
15. But the said delay cannot be attributable to the Office of the Director of Public Prosecution.
16. I am inclined to allow the accused an opportunity to make his offer for plea bargaining.
17. In the event, I am inclined to put on hold the trial for a limited duration.
18. I appreciate that the continued need to keep safe the prosecution witnesses is not cheap. But I find that, the ends of justice are best served by, first, putting on hold the testimony of the protected witnesses.
19. Accordingly, I allow the accused 3 days, at most, to make his formal offer for plea bargaining.
20. The ODPP will have 3 days to respond to the said offer.
21. Thereafter, the case shall come up for mention before me, for further Directions.
DATED, SIGNEDandDELIVERED at KISUMU,this31st day ofOctober 2018.
FRED A. OCHIENG’
J U D G E