[2014] KEHC 3946 (KLR)
The court found that the prosecution had been unable to proceed with the murder trial for over five years due to the persistent unavailability of key witnesses, despite being granted multiple adjournments. The investigating officer confirmed that the main witness could not be traced and that efforts to secure other...
Source-derived case information.
- Citation
- [2014] KEHC 3946 (KLR)
- Parties
- Applicant: Republic; Defendant: Stephen Chebet Chelimo
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 34 of 2009
- Procedural Posture
- Criminal Case / Ruling on Application to Withdraw Charge Before Judgment
- Outcome
- charge withdrawn, accused discharged
- Judges
- K Kimondo
- Legal Topics
- Withdrawal of Charge, Prosecution Discretion, Constitutional Rights of Accused, Adjournment for Witnesses
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Stephen Chebet Chelimo
Defendant
Procedural Posture
Criminal Case / Ruling on Application to Withdraw Charge Before Judgment
Legal Issues
- 1 Whether the Director of Public Prosecutions can withdraw a murder charge before judgment under Article 157(6)(a) of the Constitution.
- 2 Whether the court should grant leave for withdrawal of the charge under Article 157(8) given the repeated unavailability of witnesses.
- 3 Whether the accused's constitutional rights are infringed by continued detention without trial due to prosecution's inability to procure witnesses.
Ratio Decidendi
The court found that the prosecution had been unable to proceed with the murder trial for over five years due to the persistent unavailability of key witnesses, despite being granted multiple adjournments. The investigating officer confirmed that the main witness could not be traced and that efforts to secure other witnesses had failed. The court held that, in light of the prosecution's inability to present its case and the accused's continued detention, it was just and proper to allow the Director of Public Prosecutions to withdraw the charge under Article 157(6)(a) of the Constitution. The court emphasized that the accused's constitutional right to be presumed innocent and to a fair...
Court Disposition
charge withdrawn, accused discharged
Orders
- The Director of Public Prosecutions is allowed to withdraw the charge under Article 157(6)(a) of the Constitution.
- The accused, Stephen Chebet Chelimo, is hereby discharged.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OFKENYA
IN THE HIGH COURT OF KENYA AT ELDORET
CRIMINAL CASE NO. 34 OF 2009
REPUBLIC:::::::::::::::::::::::::::::::::::::::::::::PROSECUTOR
VERSUS
STEPHEN CHEBET CHELIMO:::::::::::::::::::::: ACCUSED
RULING
The Director Public prosecutions has through the Learned State Counsel applied to withdraw the charge of murder against the accused. Under Article 157 (6)(c), the Director of Public Prosecution had power to discontinue proceedings before judgment is rendered. Under Article 157(8), the proceedings can not be discontinued without leave of this court.
The plea in this case was taken on 18th June, 2009. The accused pleaded not guilty.The persecution said it had seven witnesses.The case was adjourned for various reasons on 26th November, 2009, 24th July, 2011, the witnesses were unavailable. The witnesses were not available either on 19th December, 2011, 7th May, 2012 and 26th June, 2012. On that date, the Court granted the prosecution a last adjournment. On 16th October, 2012, the state was again not ready and was granted a “very last adjournment.” On 17th December, 2012, only the Doctor who carried out the postmortem was present. Another adjournment was granted. On 20th March, 2013 yet another adjournment was granted for want of witnesses. On 29th July, 2013 and 6th November, 2013, the matter was adjourned because the learned counsel for the accused was unavailable. On all the other adjournments, the state cause the case to be removed from the cause list for want of witnesses or material witnesses.
On 10th July, 2014, the matter was fixed for hearing. The learned state counsel had no witnesses. She applied, like I stated to withdraw the charge. For abundance of caution I called the investigating officer PC George Ouma to the stand who confirmed that the key witness had remarried and can not be traced and that the local chief has been completely unable to get the other witnesses. In the meantime, the accused is still in prison custody.
Considering the history of the case that I set out at length, I am persuaded that this is a proper case for withdrawal of the charge Under Article 157 (6) (a) of the Constitution. The accused is facing a serious charge of murder but he is still entitled to constitutional safeguards of being presumed innocent. The trial has remained pending since 2009 and the prosecution was unable to proceed on all the over ten occasions that I particularized earlier for want of witnesses. It is evident from the learned State Counsel Ms. Ruto and the investigating officer PC George Ouma that the witnesses may never be procured. I can not say the accused has anything to do with it.
Granted all of those reasons I allow the Director of Public Prosecutions to withdraw the charge Under Article 157(6) (a) of the constitution. As the accused had not been placed on his defence, he is hereby discharged. The discharge shall not be a bar to subsequent proceedings on account of the same facts. The accused may accordingly be set free forthwith unless lawfully otherwise held.
It is so ordered
Dated, Signed and Delivered at Eldoret this 10th day of July, 2014
G.K. KIMONDO
JUDGE
Ruling read at 2:30p.m. In Open Court in the presence of:-
Mr. Stephen Chelimo - Accused
Ms. Mwaniki - State Counsel
Mr. Weyama - Court Clerk
G.K. KIMONDO
JUDGE