Kenya Judgment

High Court · High Court at Siaya

State v Brian Otieno Oginga [2021] KEHC 9530 (KLR)

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Source document

01

Holding and result

The court found that the prosecution's application for nolle prosequi was properly made under Article 157(4)(b) of the Constitution, as the witnesses necessary for the prosecution of the murder charge had relocated and could not be traced. There being no objection from the accused or his counsel, and the prosecution having provided sufficient reasons for discontinuance, the court exercised its discretion to terminate the proceedings. The accused was accordingly discharged and set at liberty, unless otherwise lawfully held.

Court disposition

proceedings terminated, accused discharged

Orders

  • The proceedings in the murder case against Brian Otieno Oginga shall not continue.
  • The accused Brian Otieno Oginga is discharged and set at liberty unless otherwise lawfully held.
  • The file is closed.

02

Material facts

Parties

Republic of Kenya

Applicant Counsel: E.M. Kakoi

Brian Otieno Oginga

Defendant

03

Procedural history

  1. Posture

    Criminal Case / Ruling on Nolle Prosequi Application

04

Questions and positions

Legal issues

Party arguments

Applicant
The Office of Director of Public Prosecutions applied for termination of the murder proceedings via nolle prosequi, citing inability to trace witnesses who have relocated. The application was made pursuant to Article 157(4)(b) of the Constitution. The prosecution submitted that there was no objection from the accused or his counsel to the termination of charges.
Respondent
The accused person and his counsel did not object to the termination of the charges and supported the application for discharge.

05

Court’s reasoning

  1. 01

    Article 157(4)(b) of the Constitution of Kenya

    The Director of Public Prosecutions has the constitutional power to discontinue criminal proceedings at any stage before judgment is delivered, with the court's approval.

06

Ratio, limits and disposition

Ratio decidendi

The court found that the prosecution's application for nolle prosequi was properly made under Article 157(4)(b) of the Constitution, as the witnesses necessary for the prosecution of the murder charge had relocated and could not be traced. There being no objection from the accused or his counsel, and the prosecution having provided sufficient reasons for discontinuance, the court exercised its discretion to terminate the proceedings. The accused was accordingly discharged and set at liberty, unless otherwise lawfully held.

Court disposition

proceedings terminated, accused discharged

  • The proceedings in the murder case against Brian Otieno Oginga shall not continue.
  • The accused Brian Otieno Oginga is discharged and set at liberty unless otherwise lawfully held.
  • The file is closed.

Source and reliance status

High Court

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Judgment text

The complete available source text.

Source document

High Court

Judgment

[2021] KEHC 9530 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT SIAYA

CRIMINAL CASE NO. 1 OF 2020

STATE..............................PROSECUTION

VERSUS

BRIAN OTIENO OGINGA.....ACCUSED

RULING

1. On application by the Office of Director of Public Prosecutions vide nolle prosequidated 26. 1.2021 signed by E.M. Kakoi, Principal Prosecution Counsel Pursuant to Article 157 (4) (b) of the Constitution, and for the reasons given that witnesses have relocated and cannot be traced and as the accused person Brian Otieno Oginga and his Counsel have no objection to such termination of the charges of Murder against him, I hereby Order that the proceedings in this Murder case against the accused person Brian Otieno Oginga shall not continue.

2. Accordingly, the accused person Brian Otieno Oginga is hereby discharged and unless otherwise lawfully held, Brian Otieno Oginga is hereby set at liberty.

3. That the file is closed.

4. Orders accordingly.

Dated, Signed and Delivered at Siaya this 26th day of January, 2021

R.E. ABURILI

JUDGE

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Article 157(4)(b) Constitution of Kenya

Legislation

Legislation referenced in the available case record.

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