[2011] KEHC 1176 (KLR)
The court found that after the prosecution closed its case and a nolle prosequi was entered, the applicant was entitled to an acquittal under Article 157(7) of the Constitution. The subordinate court erred by discharging rather than acquitting the applicant. The subsequent prosecution of the applicant on similar...
Source-derived case information.
- Citation
- [2011] KEHC 1176 (KLR)
- Parties
- Applicant: Wilson Kimotho Maina Githae; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 1 of 2011
- Procedural Posture
- Criminal Revision / Ruling on Revision
- Outcome
- application allowed; applicant acquitted; subsequent proceedings quashed
- Legal Topics
- Double Jeopardy, Acquittal, Nolle Prosequi, Supervisory Jurisdiction, Forgery, False Document
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wilson Kimotho Maina Githae
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Revision
Legal Issues
- 1 Whether the applicant was entitled to an acquittal after the prosecution closed its case and a nolle prosequi was entered.
- 2 Whether the subsequent prosecution of the applicant on similar charges constituted double jeopardy.
- 3 Whether the subordinate court erred in discharging instead of acquitting the applicant.
Ratio Decidendi
The court found that after the prosecution closed its case and a nolle prosequi was entered, the applicant was entitled to an acquittal under Article 157(7) of the Constitution. The subordinate court erred by discharging rather than acquitting the applicant. The subsequent prosecution of the applicant on similar charges in a new case constituted double jeopardy, which is prohibited by law. The High Court exercised its supervisory jurisdiction to set aside the discharge, substitute it with an acquittal, and quash the subsequent proceedings as null and void, thereby acquitting and setting the applicant free.
Court Disposition
application allowed; applicant acquitted; subsequent proceedings quashed
Orders
- The order discharging the applicant in Nyeri C.M.C. Criminal Case No. 191 of 2010 is set aside and substituted with an order of acquittal.
- Nyeri C.M.C. Criminal Case No. 868 of 2010 is declared null and void and is quashed.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
CRIMINAL REVISION NO. 1 OF 2011
WILSON KIMOTHO MAINA GITHAE………….………....………..APPLICANT
VERSUS
REPUBLIC………………..….…………………………………....... RESPONDENT
(Arising from Nyeri Chief Magistrate’s Court Criminal Cases Nos. 868 of 2010 and 191 of 2010)
RULING ON REVISION
Wilson Kimotho Maina Githae hereinafter referred to as the Applicant, was tried on charge of seven (7) counts before the Chief Magistrate’s Court, Nyeri, vide Nyeri C.M.C.Cr. Case No. 191 of 2010. In counts I and II the Applicant was accused of forgery contrary toSection 345 as read with Section 249 of the Penal Code. In counts III and IV, the Applicant faced a charge of making false document contrary to Section 347 (d) (i) as read with Section 349 of the Penal code.In Count V the Applicant was accused of conspiracy to defraud contrary toSection 317of the Penal Code and in count VI he was accused of uttering a false document contrary to Section 353of the Penal Code. In count VII, the Applicant was accused of obtaining registration by false pretences contrary to Section 320of the Penal Code. The record shows that the case proceeded for hearing before Honourable Ole Keiwua, learned Senior Resident Magistrate. The Deputy Public Prosecutor entered a nolle prosequi on 31st August 2010. The Applicant was consequently discharged. He was soon thereafter arraigned afresh before the Chief Magistrate’s Court vide Nyeri C.M.C. Cr. Case No. 868 of 2010 with similar charges. The Applicant, through his Advocate, complained to Chief Magistrate. The Deputy Registrar was then prompted to place the two files before this Court for perusal.
In exercise of my supervisory power underArticle 165 (6) of the Constitution and Section 362 of the Criminal Procedure Code, I carefully perused the proceedings of the subordinate Court. It is apparent from the record that the Director of Public Prosecutions terminated the case against the Applicant after the prosecution had closed its case. Upon the determination of the case, the Applicant was ordered discharged. He was thereafter charged afresh before the Chief Magistrate’s Court. It is clear from the record that the case against the Applicant was terminated after the prosecution had closed its case. Under Article 157 (7) of the Constitution, the Applicant was entitled to an acquittal. The learned Senior Resident Magistrate fell into error when he failed to apply the provisions of Article 157 (7)of the Constitution. I am convinced that the error can be corrected by this Court in exercise of its supervisory power of revision. I hereby set aside the order discharging the Applicant and substitute it with an order acquitting the Applicant of all the charges in Nyeri C.M.C. Criminal Case No. 191 of 2010. This Court in the circumstances, must also make a determination on the fate of Nyeri C.M.C. Criminal Case No. 868 of 2010. It is trite law that the principle of double jeopardy does not permit the state to subject the Applicant who has now been acquitted to a second trial for the same offence. Therefore Nyeri C.M.C. Cr. Case No. 868 of 2010 must be declared to be null and void which I hereby do. The aforesaid case is quashed, the Applicant acquitted and set free forthwith.
Dated and delivered at Nyeri this 6th day of October 2011.
J. K. SERGON
JUDGE
In open court in the presence of Kimani for Applicant and Maundu for the State.