[2013] KEHC 1994 (KLR)
The court held that the appellant was rightfully acquitted after a full hearing, as the evidence showed the dispute between the appellant and the complainant was over ownership of a bar, which is a civil matter. The trial magistrate correctly found the appellant innocent of the criminal charge of creating a...
Source-derived case information.
- Citation
- [2013] KEHC 1994 (KLR)
- Parties
- Appellant: Tandl Josef; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 179 of 2011
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- GO Shikwe
- Legal Topics
- Acquittal, Breach of Peace, Criminal Procedure, Appeal Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tandl Josef
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the acquittal of the appellant under section 215 of the Criminal Procedure Code was proper.
- 2 Whether the appellant is entitled to have the acquittal substituted with dismissal of charges and charging of the complainant.
- 3 Whether the dispute between the appellant and complainant is criminal or civil in nature.
Ratio Decidendi
The court held that the appellant was rightfully acquitted after a full hearing, as the evidence showed the dispute between the appellant and the complainant was over ownership of a bar, which is a civil matter. The trial magistrate correctly found the appellant innocent of the criminal charge of creating a disturbance likely to cause a breach of the peace. Since the state did not appeal the acquittal, and the appellant's prayers to substitute the acquittal with dismissal of charges and charging the complainant are not available in law, the appeal lacked merit and was disallowed.
Court Disposition
appeal dismissed
Orders
- The appeal is disallowed.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CRIMINAL APPEAL NO. 179 OF 2011
TANDL JOSEF …......…......................................................….. APPELLANT
VERSUS
REPUBLIC ……….…….....................................................…RESPONDENT
(From original acquittal in Criminal Case No. 539 of 2009 of the Senior Resident Magistrate's Court at Kilifi – Hon. A.M. Obura - SRM)
JUDGMENT
The appellant prays that this court be pleased to quash the decision of the Learned magistrate of acquitting him under section 215 of the Criminal Procedure Code and substituting the acquittal with dismissing the charges and charging the Complainant. In the first case this appeal should not have been admitted for hearing.
The Appellant had been charged with creating disturbance in a manner likely to cause a breach of the peace contrary to section 95(1) of the Penal Code.
The case went to full hearing and the Accused was rightfully acquitted. It is noted that there was a misunderstanding between himself and the Complainant. The trial magistrate did note that the Appellant and the Complainant had a dispute over ownership of a Bar.
That dispute should be subject of Civil Litigation but not an appeal to this Court. He was found innocent. The state has not appealed against his acquittal and the prayers he is seeking are not available.
The appeal has no merit and its disallowed.
Judgment read and delivered in open court this 18th day of September, 2013.
…................
M. MUYA
JUDGE
18TH SEPTEMBER, 2013
In the presence of:-
State Counsel Miss Ogweno
Appellant present
Court clerk Musundi