[2004] KEHC 2706 (KLR)
The court found that since the Commissioner of Assize who presided over the trial and heard all the evidence had left judicial service before summing up and delivering judgment, it was not possible for the trial to be lawfully concluded. As a result, the proceedings were declared a mistrial, and the accused persons...
Source-derived case information.
- Citation
- [2004] KEHC 2706 (KLR)
- Parties
- Applicant: State; Defendant: Chacha Wambura Matiko; Defendant: Giribe Rawe Chacha; Defendant: Paul Manga Matiko
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- ? 3 of 2002
- Procedural Posture
- Criminal Case / Ruling on Mistrial Application After Close of Defence
- Outcome
- mistrial declared; accused discharged
- Legal Topics
- Mistrial, Criminal Procedure, Discharge of Accused
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
State
Applicant
Chacha Wambura Matiko
Defendant
Giribe Rawe Chacha
Defendant
Paul Manga Matiko
Defendant
Procedural Posture
Criminal Case / Ruling on Mistrial Application After Close of Defence
Legal Issues
- 1 Whether the trial before the Commissioner of Assize, who left service before conclusion, constitutes a mistrial.
- 2 Whether the accused persons should be discharged as a result of the incomplete trial.
Ratio Decidendi
The court found that since the Commissioner of Assize who presided over the trial and heard all the evidence had left judicial service before summing up and delivering judgment, it was not possible for the trial to be lawfully concluded. As a result, the proceedings were declared a mistrial, and the accused persons were discharged. The court further held that the state retained the liberty to take any further steps it deemed appropriate, including the possibility of instituting fresh proceedings if so advised.
Court Disposition
mistrial declared; accused discharged
Orders
- The trial before the Commissioner of Assize is declared a mistrial.
- All the accused persons are hereby discharged.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CRIMINAL CASE NO.3 OF 2002
STATE …………………………………………………………… PROSECUTORVERSUS
1. CHACHA WAMBURA MATIKO )
2. GIRIBE RAWE CHACHA ) ……………….. ACCUSED.
3. PAUL MANGA MATIKO )
RULING
The three accused person first appeared in court on 4/3/02 when they denied the charge of Murder before Hon. I. C. C. Wambilyangah. The hearing started on 17th July 2002 before Hon. P. K. K. A. Birech then a Commissioner of Assize. Prosecution closed its case on 13. 2.03 after 5 witnesses had testified. Case was fixed for submissions on 7. 4.03. Submissions were eventually made on 5. 9.03 and a ruling was made that accused had a case to answer. They gave their defence and the defence closed its case. Case was fixed for summing up on 16. 10. 03. By then however the Honourable Commissioner had left service. Counsel for the accused submitted that the trial before the Hon. Commissioner was a mistrial as he is no longer in service to finalise the case.
The Honourable State Counsel supported the application and rightly so. The trial had almost come to an end when the commissioner left service. He cannot finalise the case.
In the circumstances I declare the trial before the Commissioner of Assize a mistrial and all the accused person are hereby discharged. The state is however at liberty to take any appropriate steps it deems fit. It is so ordered.
KABURU BAUNI JUDGE 3/6/04 Mr. Chirchir for state. Mr. Kaburi for Lebu for Accused. KABURU BAUNI JUDGE.