[2009] KEHC 3492 (KLR)
The court found that while the prosecution's repeated failure to produce the police file and witness statements resulted in unjustified delays, transferring the case to another court would only cause further delay. The appropriate remedy was to remit the matter back to the original trial court with strict directions...
Source-derived case information.
- Citation
- [2009] KEHC 3492 (KLR)
- Parties
- Applicant: Stephen Matheka Musyoka; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- ? 114 of 2008
- Procedural Posture
- Criminal Miscellaneous Application / Ruling on Application for Transfer and Disclosure
- Outcome
- Application for transfer declined; directions issued for expeditious hearing and disclosure.
- Legal Topics
- Transfer of Criminal Cases, Disclosure of Evidence, Adjournments, Right to Fair Trial
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Matheka Musyoka
Applicant
Republic
Respondent
Procedural Posture
Criminal Miscellaneous Application / Ruling on Application for Transfer and Disclosure
Legal Issues
- 1 Whether the criminal case should be transferred to another court due to repeated adjournments by the prosecution.
- 2 Whether the applicant is entitled to be supplied with the charge sheet, P3 form, and witness statements to prepare his defence.
Ratio Decidendi
The court found that while the prosecution's repeated failure to produce the police file and witness statements resulted in unjustified delays, transferring the case to another court would only cause further delay. The appropriate remedy was to remit the matter back to the original trial court with strict directions for expeditious hearing. The applicant's right to disclosure was reaffirmed, and the trial court was directed to take necessary action, including closing the case if the prosecution failed to provide the required documents within the set timeline.
Court Disposition
Application for transfer declined; directions issued for expeditious hearing and disclosure.
Orders
- The matter to be mentioned before Court No. 4 on the date of the ruling.
- Hearing to be fixed within two weeks of the ruling date.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MACHAKOS
Criminal Misc. 114 of 2008
STEPHEN MATHEKA MUSYOKA …...…..…… APPLICANT
VERSUS
REPUBLIC …………………………………… RESPONDENT
RULING
1. The present Application is dated 19/6/2008 and in it the Applicant, Stephen Matheka seeks the transfer of Criminal Case No. 2293/06 at Machakos CM’s Court from Court No. 4 to any other court and also that he should be supplied with copies of the charge sheet, P3 form and witness statements to enable him prepare his defence to the charges of assault causing actual bodily harm contrary to section 251 of the Penal Code.
2. I disposed of the latter question by ordering that he should be supplied with the P3 form, charge sheet and witness statements as is his right under section 77 of the Constitution. Although my orders in that regard were made on 30/6/2008 by 1/4/2009, the orders had not been complied with because the police file could not be traced.
3. I have now had occasion to hear submissions by the Applicant and learned State Counsel on the issue before me. I have also perused the lower court file and I note that the evidence of PW1, Susan Ndinda Mbune, and PW2 Benedeta Grace Peter Wambua was taken on 22/3/2007 and since then the hearing could not proceed although the Applicant appeared in court on 19/7/2007, 31/10/2007, 13/12/2007, 20/12/2007, 7/2/2008, 7/3/2008, 26/5/2008, 19/6/2008 and 28/1/2009 the hearing could not proceed principally because the prosecution could not trace the police file.
4. It is clear to me that injustice is being occasioned to the Applicant by the adjournments occasioned by the prosecution. However, the trial court was alive to that fact and on 28/1/2009 granted the prosecution the last adjournment but thereafter when the matter was fixed for hearing on 27/2/2009 the learned magistrate was taking mentions at Kamiti Prison. Hearing was fixed for 7/4/2009 but the court file was already in my hands for purposes of this Ruling.
5. Although there is laxity on the part of the prosecution, I deem it necessary not to transfer the file to another court (because that would only cause more delay) but to remit it back to court No. 4 with the following directions;
The matter to be mentioned before that court today and the hearing fixed within 2 weeks of today’s date. If the police file and witness statements are not available, the trial court must then take the necessary action and bring the case to a close.
6. Orders accordingly.
Dated and delivered at Machakos this 28thday of May 2009.
ISAAC LENAOLA
JUDGE