[2021] KEHC 8281 (KLR)
The court found that the trial court failed to explain to the accused the full implications of a Section 87(a) withdrawal, resulting in a lack of informed consent. The trial court also failed to provide a fair hearing by not ensuring the accused understood the proceedings and acted on speculative evidence regarding...
Source-derived case information.
- Citation
- [2021] KEHC 8281 (KLR)
- Parties
- Appellant: Wilson Alakonya; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 144 of 2018
- Procedural Posture
- Criminal Appeal / Ruling on Application to Reverse Withdrawal of Charge
- Outcome
- Withdrawal of charge reversed; trial to continue before a different judicial officer.
- Legal Topics
- Withdrawal of Charges, Fair Trial Rights, Informed Consent, Judicial Misconduct
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wilson Alakonya
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Application to Reverse Withdrawal of Charge
Legal Issues
- 1 Whether the trial court erred in allowing withdrawal of the charge without ensuring the accused's informed consent.
- 2 Whether the trial court failed to provide a fair hearing by not explaining the implications of Section 87(a) withdrawal to the accused.
- 3 Whether the trial court improperly assumed the role of the prosecution.
Ratio Decidendi
The court found that the trial court failed to explain to the accused the full implications of a Section 87(a) withdrawal, resulting in a lack of informed consent. The trial court also failed to provide a fair hearing by not ensuring the accused understood the proceedings and acted on speculative evidence regarding documents from India. Furthermore, the trial court improperly assumed the role of the prosecution. As a result, the withdrawal of the charge was reversed and the trial was ordered to continue before a different judicial officer.
Court Disposition
Withdrawal of charge reversed; trial to continue before a different judicial officer.
Orders
- The withdrawal of the charge on 24th April, 2017 is reversed.
- Trial to continue as per Charge Sheet dated 10th April, 2017 before a different Judicial Officer.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
CRIMINAL APPEAL NO. 144 OF 2018
WILSON ALAKONYA.................................................APPELANT
VERSUS
REPUBLIC..............................................................RESPONDENT
RULING
UPON Reading the Court file it is clear that the first complaint by the Applicant is made out. It is clear that the trial court namely Hon. B. Ochieng, CM heard the application for withdrawal on 24th April, 2017. The Applicant was not represented. The record shows that the trial court did not bother to explain to the Accused, the full implications of a Section 87 (a) withdrawal.
In the circumstances his consent to the withdrawal cannot be considered informed consent. The trial court failed to provide a fair hearing by failing to ensure the Appellant could understand the proceedings.
Further, the Order made is based on an incorrect understanding of the Section. The Prosecution is given leave to withdraw and they then have to take steps to formerly withdraw. The trial court failed to ascertain the character of documents to be received from India, if any. “Some documents” were never described and therefore their relevance to the proceedings was purely speculative.
The trial court took upon itself to step into the shoes of the Prosecution. The Prosecution now before the Court does not oppose the application.
Therefore it is ordered that the withdrawal of the charge on 24th April, 2017 be and is hereby reversed. Trial to continue as per Charge Sheet dated 10th April, 2017 before a different Judicial Officer.
Orders accordingly.
FARAH AMIN
JUDGE
DELIVERED, SIGNED AND DATED IN KAKAMEGA ON THIS THE 24TH DAY OF MARCH 2021.
Ruling read in presence of Mr. Munyendo and Mr. Mutua.