https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/244

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATE’S COURT AT BUNGOMA** **CR. CASE NO. E2105 OF 2023** STATE………………………………………………………………………………………...ODPP =VERSUS= ALBERT MUTORO MAKHANU……………………………………...………… ACCCCUSED 1 DENIS WEKESA………………………………………………………………………ACCUSED 2 **RULING** This matter come up today for defence hearing. In fact, accused 1 had already began giving his oral testimony when the court noticed that the charge against them was apparently brought under section 95(1) (b) of the Penal Code. It further observed that, the said section has since been declared unconstitutional by the High Court in a recent landmark decision. Due to the above, the asked the prosecution to address the matter and take appropriate action. In their response, Ms. Achieng, Prosecuting Counsel, concurred that, indeed, the charge as framed falls under section 95(1) (b) of the Penal code. She also conceded that indeed, the said section has since been declared unconstitutional in **High Court Petition No. E563 of 2024 Law Society of Kenya -v- AG & Anor.** The correct and full citation of the aforesaid case is **Law Society of Kenya v Director of Public Prosecutions & 2 others; Kebaso (Interested Party) [2026] KEHC 1486 (KLR).**The decision was rendered bythe Constitutional and Human Rights Division of the High court at Nairobi (per Mwamuye J). Because of the above reason, Ms. Achieng applied to withdraw the case under section 87(1)(a) of the Criminal Procedure Code. This application was un-opposed. The court has considered this application and also perused the provision of both section 87 (a) and 87(b) of the Criminal Procedure Code on withdrawal of case by the prosecution during the pendency of trial. In its considered view, the accused persons having both been placed on their defence, the correct provision to be invoked at this stage is sub-section (b) of section 87 of the Criminal Procedure Code as opposed to sub-section (a) thereof. The latter applies to withdraw by the prosecution before the accused person is placed on his defence. Consequently, I would make an order allowing the state to withdraw this case against both accused persons save that the same shall be under section 87 (b) of the Criminal Procedure Code. In the result, each accused is acquitted of the charge of creating disturbance in a manner likely to cause a breach of the peace contrary to sectIon 95(1) (b) of the Penal Code forthwith. **Dated & Delivered in open court this 7th day of July 2026** In the presence of; Pros- Ms. Achieng C/Asst- Ms. Jacinta Accused 1 & 2 in person **R.B.N MALOBA(MS)** **SENIOR PRINCIPAL MAGISTRATE**