[2011] KEHC 1899 (KLR)
The court held that the entry of a nolle prosequi in the earlier case (Cr. 2515/2009) did not amount to an acquittal and therefore did not bar the applicants from being prosecuted again for the same offence in Cr. 2414/2010. The nolle prosequi merely terminated the charges at that time, and the law allows for...
Source-derived case information.
- Citation
- [2011] KEHC 1899 (KLR)
- Parties
- Applicant: Wicklife Otieno Ngode Alias Toti; Applicant: Tobias Odhiambo Otieno; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application 2 of 2011
- Procedural Posture
- Criminal Miscellaneous Application / Ruling
- Outcome
- application dismissed
- Judges
- JV Juma
- Legal Topics
- Double Jeopardy, Nolle Prosequi, Criminal Procedure, Robbery With Violence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wicklife Otieno Ngode Alias Toti
Applicant
Tobias Odhiambo Otieno
Applicant
Republic
Respondent
Procedural Posture
Criminal Miscellaneous Application / Ruling
Legal Issues
- 1 Whether the prosecution of the applicants in Cr. 2414/2010 amounts to double jeopardy given the previous charge in Cr. 2515/2009.
- 2 Whether the entry of a nolle prosequi in the earlier case bars subsequent prosecution for the same offence.
Ratio Decidendi
The court held that the entry of a nolle prosequi in the earlier case (Cr. 2515/2009) did not amount to an acquittal and therefore did not bar the applicants from being prosecuted again for the same offence in Cr. 2414/2010. The nolle prosequi merely terminated the charges at that time, and the law allows for subsequent prosecution over the same incident. As such, there was no illegality in the applicants being re-arrested and charged, and the application to stay the trial on grounds of double jeopardy was without merit.
Court Disposition
application dismissed
Orders
- The application to stay the trial in Cr. 2414/2010 is declined.
- Cr. 2414/2010 shall proceed to its logical conclusion.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CRIMINAL MISCELLANEOUS APPLICATION NO. 2 OF 2011
1. WICKLIFE OTIENO NGODE Alias TOTI
2. TOBIAS ODHIAMBO OTIENO ……............................……. APPLICANTS
=VERSUS=
REPUBLIC ……………………………...............……….. RESPONDENT
RULING
The two (2) applicants had filed their identical applications filed in court on 11th January 2011 by which they sought orders barring the continuance of their trial in Cr. 2414/2010 on a charge of Robbery with Violence before the Chief Magistrate in Mombasa. They submit that their trial amounts to double jeopardy as they had already been charged with the same offence in Cr. 2515/2009. Mr. Onserio for the State submitted that there was no double jeopardy because in the first trial Cr. 2515/2009 the charge was terminated by way of a ‘Nolle prosequi’. As such he argues there was no bar to a subsequent charge.
I have myself obtained and perused the two files in question. It is correct that on 3rd August 2010 the State entered a ‘Nolle prosequi’ dated 2nd August 2010 and signed by Mr. Ondari, Assistant Deputy Public Prosecutor. The effect of a ‘nolle prosequi’ is not an acquittal. It is merely a termination of the charges which an accused person faced. A nolle is not a bar to future prosecution over the same incident. This is what infact happened in Cr. 2414/2010. The two accused were re-arrested and charged. There is no illegality here. I find no merit in this application and I decline to issue orders staying the trial in the lower court. It is ordered that Crim. 2414/2010 proceed to its logical conclusion.
Dated and Delivered at Mombasa this 12th day of July 2011.
M. ODERO
JUDGE
In the presence of:
Both in person
Mr. Onserio for State