[2014] KEHC 8548 (KLR)
The court held that it cannot fairly determine the petition for a fresh criminal trial under Article 50(6)(b) of the Constitution without the proceedings from Nairobi CM’s Court Criminal Case No.395 of 2007. Both parties had not made serious efforts to procure the proceedings, but the court found that the absence of...
Source-derived case information.
- Citation
- [2014] KEHC 8548 (KLR)
- Parties
- Applicant: Simon Kariuki Mwangi; Respondent: The Hon. Attorney General; Respondent: Director of Public Prosecution
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Petition 196 of 2014
- Procedural Posture
- Constitutional Petition / Interlocutory Ruling on Production of Lower Court Proceedings
- Outcome
- Interlocutory orders issued; petition not determined on merits.
- Judges
- I Lenaola
- Legal Topics
- Right to Fair Trial, Fresh Trial, New and Compelling Evidence, Criminal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simon Kariuki Mwangi
Applicant
The Hon. Attorney General
Respondent
Director of Public Prosecution
Respondent
Procedural Posture
Constitutional Petition / Interlocutory Ruling on Production of Lower Court Proceedings
Legal Issues
- 1 Whether the petition can be heard without the proceedings in Nairobi CM’s Court Criminal Case No.395 of 2007 being availed to the parties and the court.
- 2 Whether a fair determination of the petition is possible in the absence of the lower court proceedings.
Ratio Decidendi
The court held that it cannot fairly determine the petition for a fresh criminal trial under Article 50(6)(b) of the Constitution without the proceedings from Nairobi CM’s Court Criminal Case No.395 of 2007. Both parties had not made serious efforts to procure the proceedings, but the court found that the absence of the record precludes a just determination. The Deputy Registrar was therefore ordered to make all efforts to trace and produce the proceedings within 30 days, after which the matter would be mentioned for further directions, including consideration of any other lawful action if the proceedings remain unavailable.
Court Disposition
Interlocutory orders issued; petition not determined on merits.
Orders
- The Deputy Registrar of the High Court is to make all efforts to trace and produce the proceedings of Nairobi CM’s Court Criminal Case No.395 of 2007 within 30 days.
- The matter shall be mentioned on a date to be agreed between the parties for further orders and directions, including whether the court can take any other lawful action without the proceedings being availed.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO.196 OF 2014
BETWEEN
SIMON KARIUKI MWANGI……………………………………..……PETITIONER
AND
THE HON. ATTORNEY GENERAL………..……………………..…1ST RESPONDENT
DIRECTOR OF PUBLIC PROSECUTION………………………….2ND RESPONDENT
JUDGMENT
Introduction
1. This Ruling is limited to the issue whether the Petition undated but filed on 23rd April 2014 can be heard without the proceedings in Nairobi CM’s Court Criminal Case No.395 of 2007being availed to the Parties and the Court.
2. The Petition, for avoidance of doubt, is premised on Article 50(6)(b)of theConstitutionand the Petitioner seeks a fresh criminal trial in the Chief Magistrate’s Court because new and compelling evidence has allegedly become available to him.
3. From the record, the proceedings in CM’s Court Criminal Case No.395 of 2007have never been availed but it would seem that neither the Petitioner nor the Respondent has made any serious effort to procure them.
4. I was initially minded to determine the Petition without the proceedings but on reflection, no fair determination of the Petition can be made without those proceedings.
5. In the event, I will order as follows;
(1) Let the Deputy Registrar of this Court personally make all efforts to trace and produce the said proceedings within 30 days.
(2) This matter shall then be mentioned on a date to be agreed between the Parties for further orders and directions including whether this Court can take any other lawful action other than the hearing of the Petition aforesaid without the said proceedings being availed to it.
6. Orders accordingly.
DATED, DELIVERED AND SIGNED AT NAIROBI THIS 18TH DAY OF DECEMBER, 2014
ISAAC LENAOLA
JUDGE
In the presence of:
Kariuki – Court clerk
Petitioner present in person
Order
Ruling delivered and mention on 22/1/2015. Production order to issue.
ISAAC LENAOLA
JUDGE