[2005] KEHC 2486 (KLR)
The court found that since Justice Wambilyangah, who had presided over the trial and heard four witnesses, had retired from the judiciary before the case could be concluded, it was impossible for him to finalize the hearing. Section 200 of the Criminal Procedure Code requires that the judge who hears the evidence...
Source-derived case information.
- Citation
- [2005] KEHC 2486 (KLR)
- Parties
- Applicant: Republic; Defendant: Simion Nyakerario Marwa; Defendant: Jackson Chacha Makenge; Defendant: Togo Maroa Ongoso
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 16 of 2003
- Procedural Posture
- Criminal Case / Ruling on Mistrial Application
- Outcome
- Trial declared a mistrial; accused persons discharged; liberty to bring fresh charges reserved to Attorney General.
- Legal Topics
- Murder Trial, Mistrial, Judicial Retirement, Fresh Trial, Criminal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Simion Nyakerario Marwa
Defendant
Jackson Chacha Makenge
Defendant
Togo Maroa Ongoso
Defendant
Procedural Posture
Criminal Case / Ruling on Mistrial Application
Legal Issues
- 1 Whether the trial before Justice Wambilyangah constituted a mistrial due to his retirement before conclusion of the case.
- 2 Whether the accused persons should be discharged and a fresh trial ordered.
Ratio Decidendi
The court found that since Justice Wambilyangah, who had presided over the trial and heard four witnesses, had retired from the judiciary before the case could be concluded, it was impossible for him to finalize the hearing. Section 200 of the Criminal Procedure Code requires that the judge who hears the evidence must conclude the trial, and the inability to do so renders the proceedings a mistrial. The court therefore declared the trial a mistrial and discharged all the accused persons, but left the Attorney General at liberty to bring fresh charges if so desired.
Court Disposition
Trial declared a mistrial; accused persons discharged; liberty to bring fresh charges reserved to Attorney General.
Orders
- The trial before Justice Wambilyangah is declared a mistrial.
- All accused persons are discharged.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISII CRIMINAL CASE NO.16 OF 2003
REPUBLIC ………………………………………………………. PROSECUTOR
VERSUS
SIMION NYAKERARIO MARWA ) JACKSON CHACHA MAKENGE ) ……………………………. ACCUSED TOGO MAROA ONGOSO )
RULING
The accused persons were arraigned in court on 15th May 2003 charged with the offence of murder c/s.203 as read with S.204 of the Penal Code. Particulars wee that on 18th May 2002 at Nyamachanga trading centre of Kuria District they jointly murdered SABORA BWIRO. They appeared before JUSTICE WAMBILYANGAH (as then was) and pleaded not guilty. Hearing started before the same judge on 9th July 2003, two witnesses were heard and case adjourned to 12th August 2003 when two other witnesses were heard. After that case was adjourned to 16th October 2003. By then however the Judge had retired from the judiciary. Later I directed the case to start a fresh.
Mr. Bosire has urged the court to declare the trial before justice Wambilyangah a mistrial. Mr. Chirchir the learned State Counsel concurred, and rightly so.
As I have stated four witnesses had given evidence by the time Justice Wambilyangah left service. He cannot be recalled to finalise the hearing of the case. The trial before him is therefore a mistrial, even if this court had directed hearing to start a fresh.
I therefore declare that trial a mistrial and discharge all the accused person.
The Attorney General is however at liberty to bring fresh charges against the accused person if he so wishes.
Dated this 25th April 2005.
KABURU BAUNI
JUDGE
cc. Mobisa
Mr. Marwa for Accused
Mr. Bosire for 2nd Accused.
Mr. Kemo for state.