Director of Public Prosecution v Benard Koech Kemboi [2017] KEHC 7355 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT ELDORET

CRIMINAL REVISION CASE NO. 3 OF 2017

DIRECTOR OF PUBLIC PROSECUTION:::::::APPLICANT

VERSUS

BENARD KOECH KEMBOI:::::::::::::::::::::::::::RESPONDENT

(Being an application for revision of the order of Hon. H.M. Nyaberi, Senior Principle Magistrate in Iten Criminal Case No. 1302 of 2016)

RULING

This matter now comes up for the prosecution’s application by way of revision pursuant to S. 362 and 364 (1)(b) of the Criminal Procedure Code, Cap 75 Laws of Kenya.   The application for revision is dated 31. 1.2017 and lists up to 9 grounds: -

1. That accused was charged with assault and took plea on 29th December, 2016 wherein he pleaded Not Guilty and was admitted to bond Ksh. 50,000/- and matter fixed for hearing on 27th January, 2017.

2. That on 27th January, 2017, when the matter came up for hearing for the first time the prosecution made an application for an adjournment on the ground that the police file was missing but the relevant police station was in the process of tracing it and prayed for another hearing date to issue.

3. That the accused opposed the application for adjournment on the ground that the complainant is his step brother.

4. That the learned trial magistrate acquitted the accused under Section 202 of the Criminal Procedure Code as neither the complainant nor the Investigating Officer was in court.

5. That being the first time the prosecution was making an application for an adjournment, the learned trial magistrate ought to have exercised his discretion judiciously by allowing the prosecution at least one more chance to avail their witnesses.

6. That the learned trial magistrate erred in acquitting the accused at the very first hearing date, even without satisfying himself as to whether the complainant had been given notice of the hearing date.

7. That the learned trial magistrate erred in acquitting the accused without regard to the rights of the complainant.

8. That the learned trial magistrate erred in the exercise of his discretion under Section 202 of Criminal Procedure Code and thereby occasioning a serious miscarriage of Justice.

9. That it is in the best interest of justice that this court orders for revision of the learned trial magistrate order acquitting the accused under Section 202 of the Criminal Procedure Code.

Ms. Kagehi, Counsel for the State based her submissions on the above grounds.   This application for revision is brought under Section 362 and 364 of the Criminal Procedure Code Section 362 States: -

“The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality and propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court”.

In this particular case, the High Court, on application by the state, made an order on 7th February, 2017 calling for the original records as urged.  I have perused the said original records, which confirm that the accused Benard Koech Kemboi took plea on 29th December, 2016.   Upon pleading Not Guilty, a hearing date was set for 27th January, 2017.  On the set date of 27th January, 20167, the prosecution side made an application for adjournment on grounds that the police file was missing and was being traced.     The accused, on the other hand, opposed the application, only stating that the complainant is his step brother.

The learned trial magistrate went on and acquitted the accused under Section 202 of the Criminal Procedure Code apparently on the grounds that it was not true that the police file was missing.   Also that neither the investigating officer nor complainant was present in court.

Section 202 of the Criminal Procedure Code reads;

“If, in a case in which a subordinate court has jurisdiction to hear and determine, the accused person appears in obedience of summons served upon him at the time and place appointed in the summons, for the hearing of the case, or is brought before court under arrest, then if the complainant, having had notice of the time and place appointed for the hearing of the charge (emphasis mine), does not appear, the court shall thereupon acquit the accused, unless for some reason it thinks it proper to adjourn the hearing of the case until some other date……..”

The above provision dictates that before a substantive order of acquittal is made under S.202 of the Criminal Procedure Code, there must be proof of service of the notice of hearing on the complainant.   Nothing on the record of the lower court, indicates whether the complainant had accordingly been served.  In fact not even an inquiry on this matter was made.  Leaving the possibility that the complainant may well have not been served to attend court on 27th January 2017.  If there had been no such service on the complainant, it follows that the order of acquittal under Section 202 of the Criminal Procedure code ought not to have issued.

Secondly, a reading of Section 202 of the Criminal Procedure Code gives the court a discretion even if the complainant is absent, to adjourn the case if good reasons are shown.  In this case, it is noted that plea had been taken on 29th December, 2016 and hearing fixed for 27th January 2017.   This was the first hearing date and no application for adjournments had been previously made by the prosecution.   In the interest of Justice and I agree with learned counsel for the state, that the court ought to have accorded the prosecution another opportunity to call their witnesses.

In view of the above circumstances, I am persuaded that this is a case fit for revision as urged by the state.  This will give opportunity to both the prosecution and defence sides to have their day in court and I do not see any prejudice that either side would suffer in the circumstances.  I accordingly therefore allow the application for revision dated 31st January 2017 and set aside the order of the Honourable Trail Magistrate, Iten, issued on 27th January, 2017 acquitting the accused under Section 202 of the Criminal Procedure Code.   I order that the said case be re-opened and for trial of the same to proceed to conclusion in the natural way before a different magistrate.  Order accordingly.

DATED, SIGNED and DELIVERED at ELDORET, this 15th day of March 2017.

D.O.  OGEMBO

JUDGE

Ruling read out in open court in the presence of: -

Ms. Kagehi for the State