[2021] KEHC 7715 (KLR)
The court held that the prosecution, through the Director of Public Prosecutions, is empowered by Article 157(6) & (7) of the Constitution and Section 82 of the Criminal Procedure Code to discontinue criminal proceedings at any stage before judgment, provided the court grants permission. Since the application for...
Source-derived case information.
- Citation
- [2021] KEHC 7715 (KLR)
- Parties
- Applicant: Republic of Kenya; Defendant: Isaiah Odhiambo Osire
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Criminal Case E007 of 2020
- Procedural Posture
- Criminal Case / Application for Discontinuance Before Close of Prosecution's Case
- Outcome
- Prosecution allowed to discontinue the case; accused discharged from the information of murder.
- Judges
- RE Aburili
- Legal Topics
- Discontinuance of Proceedings, Powers of Dpp, Murder Charge, Criminal Procedure, Discharge Without Acquittal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic of Kenya
Applicant
Isaiah Odhiambo Osire
Defendant
Procedural Posture
Criminal Case / Application for Discontinuance Before Close of Prosecution's Case
Legal Issues
- 1 Whether the prosecution may discontinue criminal proceedings before judgment under Section 82 of the Criminal Procedure Code and Article 157 of the Constitution.
- 2 Whether the accused should be acquitted or discharged when discontinuance is granted before close of prosecution's case.
Ratio Decidendi
The court held that the prosecution, through the Director of Public Prosecutions, is empowered by Article 157(6) & (7) of the Constitution and Section 82 of the Criminal Procedure Code to discontinue criminal proceedings at any stage before judgment, provided the court grants permission. Since the application for discontinuance was made before the close of the prosecution's case and the reason given was the non-availability of witnesses, the court found it just to allow the discontinuance. The accused is therefore discharged, not acquitted, and may be subject to fresh proceedings in the future, in accordance with the law.
Court Disposition
Prosecution allowed to discontinue the case; accused discharged from the information of murder.
Orders
- The prosecution is permitted to discontinue the case against Isaiah Odhiambo Osire under Section 82 of the Criminal Procedure Code and Article 157 of the Constitution.
- The accused is discharged from the information of murder dated 25th November, 2020.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT SIAYA
CRIMINAL CASE NO. E007 OF 2020 [MURDER]
CORAM: R.E. ABURILI, J
STATE.........................................................................................................PROSECUTION
VERSUS
ISAIAH ODHIAMBO OSIRE............................................................................ACCUSED
RULING
1. This case is due for hearing. However, the ODPP is unable to proceed with the hearing as scheduled because the witnesses are not present. The court has declined an adjournment as no plausible reasons have been given. The Prosecution applies to terminate the trial vide Section 82 of the Criminal Procedure Code. The accused through his counsel submits that the court should consider that the prosecution were given the opportunity to call witnesses which they have failed to do so.
2. I have considered the Application by the prosecution and response by the defence counsel. Section 82 of the Criminal Procedure is the procedural law governing the power of the Director of Public Prosecutions to terminate a criminal trial. Under Article 157(6) & (7) of the Constitution, the Director of Public Prosecutions may discontinue criminal proceedings at any stage before judgment is delivered.
3. In addition, such discontinuation may only be undertaken with the permission of the court. If the discontinuation is done before close of the prosecution’s case as is in the present case, the accused shall not be acquitted. He is only discharged and fresh proceedings may be initiated against him.
4. Having considered the application and the response by the defence and considering the reason being non-availability of witnesses, I find that it is in the interest of justice to allow discontinuance of the charge of Murder against the accused person under Section 82 of the Criminal Procedure Code as read with Article 157 (6),(7) and (8) of the Constitution. The accused is notified that the prosecution may bring fresh charges against the accused person without prejudicing his guaranteed rights under the Constitution.
5. Accordingly, I allow the prosecution to discontinue this case against the accused Isaiah Odhiambo Osire and discharge him from the information of Murder dated 25th November, 2020.
6. File closed.
7. Orders accordingly.
DATED, SIGNED AND DELIVERED AT SIAYA THIS 19TH DAY OF APRIL 2021
R.E. ABURILI
JUDGE
In the Presence of:
Accused person and his Counsel Mr. Otieno Advocate
Mr. Kakoi, Principal Prosecution Counsel for State
Court Assistants: Mboya and Modestar