[2020] KEHC 5309 (KLR)
The High Court found that the trial magistrate exercised his discretion properly in refusing the adjournment, having considered the repeated delays and the right of the accused to a fair and speedy trial. There was no manifest error or irregularity in the proceedings, nor did the magistrate act in excess of...
Source-derived case information.
- Citation
- [2020] KEHC 5309 (KLR)
- Parties
- Applicant: Wilsham Malele Abong’o; Applicant: Emily Amatika Malele; Applicant: George Namale Amalele; Applicant: Ruth Amwayi Oluteyo; Applicant: Johnstone Seche Aura; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 32 of 2019
- Procedural Posture
- Criminal Revision / Ruling on Revision Application
- Outcome
- Revision dismissed; stay orders set aside; trial to proceed.
- Judges
- CM Njagi
- Legal Topics
- Adjournment of Criminal Trials, Revision Jurisdiction, Fair Hearing Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wilsham Malele Abong’o
Applicant
Emily Amatika Malele
Applicant
George Namale Amalele
Applicant
Ruth Amwayi Oluteyo
Applicant
Johnstone Seche Aura
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Revision Application
Legal Issues
- 1 Whether the trial magistrate erred in declining to grant an adjournment to the prosecution.
- 2 Whether the High Court should interfere with the trial magistrate’s decision through revision.
- 3 Whether there was a manifest error or irregularity in the trial court’s proceedings justifying revision.
Ratio Decidendi
The High Court found that the trial magistrate exercised his discretion properly in refusing the adjournment, having considered the repeated delays and the right of the accused to a fair and speedy trial. There was no manifest error or irregularity in the proceedings, nor did the magistrate act in excess of jurisdiction. The High Court emphasized that revision is not a substitute for appeal and should only be used to correct clear errors. Consequently, there was no basis for the High Court to interfere with the trial court’s decision, and the stay orders previously granted were set aside, allowing the trial to proceed.
Court Disposition
Revision dismissed; stay orders set aside; trial to proceed.
Orders
- The stay orders granted by the High Court in respect to Kakamega CMC Criminal Case No. 1692/2015 are set aside.
- The trial magistrate is at liberty to proceed with the hearing of the case.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
CRIMINAL REVISION NO. 32 OF 2019
WILSHAM MALELE ABONG’O . 1ST APPLICANT
EMILY AMATIKA MALELE........ 2ND APPLICANT
GEORGE NAMALE AMALELE... 3RD APPLICANT
RUTH AMWAYI OLUTEYO...........4TH APPLICANT
JOHNSTONE SECHE AURA......... 5TH APPLICANT
VERSUS
REPUBLIC...........................................RESPONDENT
RULING
1. The lower court’s file has been placed before me following my ruling dated 6/11/2019. This is with a view of this court satisfying itself as to the correctness, legality or propriety of the trial magistrate’s ruling dated 27/9/2019.
2. I have perused the ruling of the trial magistrate, Hon. B. Ochieng, delivered on 27/9/2019. In the said ruling the learned magistrate declined to grant an adjournment to the prosecution on the grounds that the case had been adjourned three times in a row without the prosecution availing its witnesses. Moreso that the prosecution had been given a last adjournment in the case. That the case was filed in 2015 and the accused had been attending court religiously. That the accused were entitled to a fair hearing without unnecessary delay in the hearing of their case.
3. A trial court reserves the discretion on whether or not to allow an adjournment. Section 205 of the Criminal Procedure Code (CPC) provides that:-
“(1) The court may, before or during the hearing of a case, adjourn the hearing to a certain time and place to be then appointed and stated in the presence and hearing of the party or parties or their respective advocates then present………..”
4. The provisions of the above section were emphasized by Ouko J. (as he then was) in Republic –Vs- Meshek Muyuri (2007) eKLR where he stated that:-
“There is, therefore legal basis for adjournment of criminal trials. However, in granting an adjournment, the court must not do so as a matter of course. There must be sound justification for granting an adjournment in a criminal case as the suspect is entitled under Section 77 of the Constitution to a fair and speedy trial.”
5. As stated in my earlier ruling in this matter, a court while exercising its powers of revision under Section 362 of the Criminal Procedure Code should take care not to turn a revision into an appeal. I stated that a revision should only be limited to rectifying a manifest error in the proceedings.
6. The trial magistrate gave reasons why he was not in favour of granting an adjournment in the case. Section 205 of the CPC gave power to the magistrate to allow or to decline an adjournment. There was no manifest error or irregularity in the decision of the magistrate. The magistrate did not act in excess of his jurisdiction. Whether the magistrate erred in his decision can only be a subject of an appeal but not revision. In the premises I see no reason to interfere with the decision of the trial court.
7. The upshot is that the stay orders granted by this court in respect to Kakamega CMC Criminal Case No. 1692/2015 by this court’s ruling dated 16/11/2019 are set aside. The trial magistrate is thus at liberty to proceed with the hearing of the case.
Delivered, dated and signed at Kakamega this 21st day of May, 2020.
J. N. NJAGI
JUDGE
In the presence of:
No appearance for Applicants
Mr. Mutua for State/Respondent
Applicants - Absent
Court Assistant - Polycap
14 days right of appeal.