[1998] KECA 88 (KLR)
The Court of Appeal held that the Chief Justice acted without jurisdiction in setting aside the acquittal made under section 202 of the Criminal Procedure Code. Such an acquittal is final and bars any subsequent proceedings for the same matter against the same accused, as provided by section 218 of the Criminal...
Source-derived case information.
- Citation
- [1998] KECA 88 (KLR)
- Parties
- Appellant: Reuben H. Muli; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 29 of 1998
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed
- Judges
- JE Gicheru, RO Kwach, AB Shah
- Legal Topics
- Acquittal Under Section 202, Revision Jurisdiction, Double Jeopardy, Criminal Procedure Code, Magistrate Court Powers
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Reuben H. Muli
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the Chief Justice had jurisdiction to revise an acquittal made under section 202 of the Criminal Procedure Code.
- 2 Whether an acquittal under section 202 bars subsequent proceedings for the same matter against the same accused.
- 3 Whether the absence of the accused during the revision proceedings affected the validity of the order.
Ratio Decidendi
The Court of Appeal held that the Chief Justice acted without jurisdiction in setting aside the acquittal made under section 202 of the Criminal Procedure Code. Such an acquittal is final and bars any subsequent proceedings for the same matter against the same accused, as provided by section 218 of the Criminal Procedure Code. The purported revision was not only ultra vires but also procedurally flawed, as it was conducted in the absence of the accused. The appellate court restored the original acquittal, emphasizing the finality of acquittals under section 202 and the limits of the High Court's revisionary powers in such circumstances.
Court Disposition
appeal allowed
Orders
- The appeal is allowed.
- The order of the Chief Justice setting aside the appellant's acquittal and directing a retrial is set aside.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL AT NAIROBI CORAM: GICHERU, KWACH & SHAH, JJ.A CRIMINAL APPEAL NO. 29 OF 1998 BETWEEN
REUBEN H. MULI........................................APPELLANT AND REPUBLIC.............................................RESPONDEN T
Appeal from a conviction, judgement, decree and order of the High Court of Kenya at Nairobi (The Chief Justice F.K. Apaloo) dated 3rd November, 1994 in H.C.C.CR.C. NO.59 OF 1994) ******************** JUDGMENT OF THE COURT
On 3rd November, 1994 the then Chief Justice Apaloo, purportedly exercising his powers of revision, and in the absence of the accused persons (one of whom was the appellant now before us), set aside the acquittal of all the seven accused persons which order of acquittal was made under section 202 of the Criminal Procedure Code. That was in Machakos Criminal Case No. 59 of 1994.
The accused persons were charged with various offences ranging from Robbery, contrary to section 296(1) of the Penal Code, stealing by persons employed in the Public Service, contrary to section 280 of the Penal Code, aiding the commission of stealing by persons employed in the Public Service, contrary to section 280 as read with section 20(c) of the Penal Code and the appellant was charged with the offence, in the alternative, of handling stolen goods contrary to section 322(2) of the Penal Code.
On 25th October, 1991 the learned Ag. Magistrate N. O. Masara Esquire had acquitted all the accused persons of the offences they were charged with under section 202 of the Criminal Procedure Code as there was no complainant.
An acquittal under section 202 of the Penal Code is a bar to any subsequent information or complaint for the same matters against the same accused person as provided for in section 218 of the Penal Code.
The learned Chief Justice had no jurisdiction to revise the order of acquittal under section 202 aforesaid. What he proceeded to do was wrong and not provided for in law and a fortiori so when the accused persons were not even present.
Mr. Bwonwonga, the Assistant Deputy Public Prosecutor, has rightly conceded the appeal. We allow the appeal and set aside the order of the learned Chief Justice setting aside the appellant's acquittal in the Magistrate's court and directing that he be tried afresh by a different magistrate. The effect of this judgment quite obviously is that the acquittal order made on 25th October, 1991 is restored.
Dated and delivered at Nairobi this 18th day of December, 1998.
J. E. GICHERU
.................
JUDGE OF APPEAL
R. O. KWACH
...................
JUDGE OF APPEAL
A. B. SHAH
................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR.