[2017] KEHC 568 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT EMBU

CRIMINAL APPEAL NO. 41 OF 2014

(An appeal from the Order of the Senior Principal Magistrate, Embu in CMCR. Case No. 727 of 2012 dated 18/07/2014)

WYCLIFFE NDEGE OMARIBA..............…. APPELLANT

VERSUS

REPUBLIC....................................... RESPONDENT

J U D G M E N T

1. The appellant was dissatisfied with the order of Senior Principal Magistrate, Embu in Criminal Case No. 727 of 2012 of allowing withdrawal of the case under Section 87(a) Criminal Procedure Code. In his petition dated 25/07/2014 drawn by Momanyi Gichuki & Co. Advocates, he raises the following grounds:-

(i) That the learned magistrate erred in allowing withdrawal under Section 87(a) after refusing an application for adjournment.

(ii) That the order of withdrawal amounted to allowing adjournment through the back door.

(iii) That it was a misdirection for the magistrate in making the discharge order to direct that the police do arrest the accused when they were ready.

(iv) That the magistrate failed to appreciate that the appellant was under interdiction from the police force where he served and could not be reinstated unless acquitted from the criminal charges.

(v) That it was wrong for the magistrate to find that the prosecution were entitled to withdraw the case under Section 87(a).

(vi) That the magistrate erred in appreciating that Section 87(a) was prove to abuse yet proceeded to allow the withdrawal under the said section.

2. This appeal was argued by way of written submissions filed by the appellant's counsel Mr. Momanyi and Ms. Nandwa for the respondent.

3. The facts leading to this appeal are that the appellant was facing two offences before the court. Count 1 was of stealing by servant contrary to Section 280 of the Penal Code whereas it was alleged that he had stolen four (4) receipt books from the Ministry pf Finance which came into his possession by virtue of his employment.

4. In Count II, he was charged of stealing a person employed in the public service contrary to the same Section 280 whereas it was alleged that he stole Shs.200,000/= the property of the Government of Kenya. He had pleaded not guilty to the offences and the trial was in progress at the material time.

5. The prosecution had called seven (7) witnesses by the 18th July 2014 when the disputed order was made. The prosecution applied for adjournment to call its three remaining witnesses who had not availed themselves in court for various reasons. The application for adjournment was refused on grounds that the court had granted several other adjournments. The prosecution then applied to withdraw the case under Section 87(a) of the Criminal Procedure Code which the court allowed thereby discharging the accused.

6. Section 87(a), Section 347 and 348A of the Criminal Procedure Code are the relevant provisions of the law in this appeal.

7. Section 87(a) provides:-

In a trial before a subordinate court a public prosecutor may, with the consent of the court or on the instructions of the Director of Public Prosecutions, at any time before judgment is pronounced, withdraw from the prosecution of any person, and upon withdrawal—

(a) if it is made before the accused person is called upon to make his defence, he shall be discharged, but discharge of an accused person shall not operate as a bar to subsequent proceedings against him on account of the same facts.

8. Section 347 provides:-

(1) Save as is in this Part provided—

(a) a person convicted on a trial held by a subordinate court of the first or second class may appeal to the High Court; and

(b) Repealed by Act No. 5 of 2003, s. 93.

(2) An appeal to the High Court may be on a matter of fact as well as on a matter of law.

9. Section 348A provides:-

When an accused person has been acquitted on a trial held by a subordinate court, or where an order refusing to admit a complaint or formal charge, or an order dismissing a charge, has been made by a subordinate court, the Director of Public Prosecutions may appeal to the High Court from the acquittal or order on a matter of law.

10. In view of the facts of this appeal, I find that the following issues arise from this appeal:-

(i) Whether the magistrate erred in allowing withdrawal of the case under Section 87(a) in the circumstance.

(ii) Whether the appellant has a right of appeal where the case against him has been withdrawn under Section 87(a) of the Criminal Procedure Code.

(iii) Whether the appellant was entitled to an acquittal on the close of the prosecution's case.

11. The provisions of Section 87(a) allows the prosecution to withdraw the case at any stage before judgment with the consent of the court. The prosecution is not required to give any reasons.

12. The appellant is entitled to be informed and to respond to any move or action of the prosecution that affects him.

13. Although no reasons were given by the prosecutor into the application for withdrawal, the reasons were obvious from the history of the case. The prosecution had been given the last adjournment and on this particular day, they failed to avail the three remaining witnesses. Various reasons were given in respect of each of the witnesses. The court refused the application for adjournment and ordered the prosecution to proceed. The prosecution immediately applied to withdraw the case under Section 87(a).

14. The reasons for the withdrawal of the case therefore were that the prosecution had failed to avail witnesses in court even after being granted the last adjournment.

15. One of the remaining witnesses C.I. Kerorei was said to have attended burial of a relative on that day while P.C. Nyaga was to travel from Mandera and could not make due to communication problem. The third witness Mr. Oanda was said to have been unable to make it from Ukwala court but no reason was given for non attendance.

16. An application for adjournment is at the discretion of the trial magistrate or the judge hearing the case. The magistrate was entitled to either refuse it or grant it upon consideration of the reasons given.

17. The prosecution in opposing the appeal argued that the appellant has no right of appeal. The case of DAVID OYEASHIOYA VS REPUBLIC [2012] eKLR was relied on where it was held based on similar facts that:-

It is clear that the Criminal Procedure Code does not allow any other appeal (apart from that provided for under Section 347 and 3348). It does not allow the appellant to appeal against the order that was made to discharge him under Section 87(a) of the Criminal Procedure Code as that was neither conviction nor an acquittal.

18. In the DAVID OYE ASHIOYA (supra) appeal case, just like this one, the prosecution had called seven witnesses. Only one witness was remaining when the court adjourned the case on application by the prosecution. Despite several other adjournments, at the instance of the prosecution, the last witness was not availed. The prosecutor successfully applied to withdraw the case under Section 87(a). Being aggrieved by the orders for withdrawal, the appellant lodged an appeal. The appeal was dismissed for the reasons given earlier in this judgment.

19. The above decision is only persuasive but not binding. However, the honourable judges examined the provisions of Section 347 of the Criminal Procedure Code and reached the foregoing conclusion. I find this decision relevant to the facts before me in this appeal.

20. The relevant sections to this appeal in respect of the procedure to be followed are Section 347 and 348A of the Criminal Procedure Code. The Director of Public Prosecutions has a right of appeal against an acquittal, against an and order of refusal or dismissal under Section 348A.

21. The trial magistrate acted within the law and the procedure and there was no misdirection on his part as claimed in the petition.

22. I therefore find this appeal incompetent and hereby strike it out accordingly with no order as to costs.

23. It is hereby so ordered.

DATED, DELIVERED AND SIGNED THIS 19TH DAY OF JULY, 2017.

F. MUCHEMI

JUDGE

In the presence of:-

Mr. Momanyi for appellant

Ms. Manyal for respondent