Director of Public Prosecutions v Abdalla [2022] KEHC 10350 (KLR) | Criminal Revision | Esheria

Director of Public Prosecutions v Abdalla [2022] KEHC 10350 (KLR)

Full Case Text

Director of Public Prosecutions v Abdalla (Criminal Revision 19 of 2019) [2022] KEHC 10350 (KLR) (13 May 2022) (Judgment)

Neutral citation: [2022] KEHC 10350 (KLR)

Republic of Kenya

In the High Court at Kakamega

Criminal Revision 19 of 2019

WM Musyoka, J

May 13, 2022

Between

Director of Public Prosecutions

Applicant

and

Reuben Abdalla

Respondent

Judgment

1. Revision herein is sought by the Director of Public Prosecutions, the applicant herein, of an order that was made by the trial court in Kakamega CMCCRC No. 2707 of 2018, on 29th July 2019.

2. The matter came up for hearing on 29th July 2019 before Hon. W Lopokoiyit, Resident Magistrate. The records reflect that the prosecutor was absent. The accused person, who was present, indicated that he was ready to proceed. Faced with that scenario, the court proceeded to consider the evidence on record, of one witness, and found that the same was not sufficient to have the accused placed on his defence, and acquitted him under section 210 of the Criminal Procedure Code, Cap 75, Laws of Kenya.

3. The State was aggrieved, and applied to this court, vide a letter by the Senior Assistant Director of Public Prosecution, Regional Head Kakamega County, Patrick Magero Gumo, dated 30th July 2019, for revision of the decision of the trial court on the basis that:(a)The trial court had conducted the hearing in the absence of the prosecution;(b)The trial court had failed to take notice of the fact that there was a shortage of prosecutors for the Kakamega law courts;(c)The trial court had dismissed the matter under section 210 of the Criminal Procedure Code, cap 75 laws of Kenya, due to non-attendance of prosecution counsel who was then before another court, and despite the court having been alerted of that fact; and(d)Failing to take into account the presence of witnesses and the investigating officer in court.

4. Plea had been taken in the matter on 14th November 2018. Hearing was fixed for 11th February 2019. On 11th February 2019, the applicant presented two witnesses, evidence was recorded from one of them, and the matter was put off to 25th March 2019. On 25th March 2019, the matter did not proceed, as the prosecutor was not available, the court recorded that she/he was unwell, and adjourned the matter to 6th May 2019. On 6th May 2019, the matter was adjourned for lack of a police file, although one witness was said to be in court, the matter was adjourned to 29th July 2019. On 29th July 2019, the prosecutor was not in court, and the accused person was acquitted as narrated above.

5. This case is on all fours withRepublic v Judith Achola Malala [2019] eKLR (Kakamega HCCRC No. 5 of 2019) (Musyoka J), and I hereby adopt the reasoning that was applied in that decision for the purpose of this matter. The trial court had accommodated the State on the two previous occasions when the matter came up for hearing and the State was not ready to proceed. On one occasion, the prosecutor was not available, on the other there was no police file. I note that the accused person was always in court, and he was in custody. Evidence had been recorded from one witness. The court found it insufficient for the purpose of a case to answer, and properly acquitted the accused under section 210 of the Criminal Procedure Code.

6. I do not find the reasons given by the State, for not attending court at the hearing, plausible. It was up to the State to arrange how its matters were to be attended to on account of the shortage of prosecution counsel. There is nothing on record to indicate that the trial court had been appraised of such shortage. There is nothing on record to indicate that there were witnesses present in the court on 29th July 2019. There is also no proof that a prosecutor had been before the court, and had given an indication that he/she was in another court and was on their way to attend to the matter.

7. I find no merit in the revision sought by the prosecution office, and I hereby decline to revise the decision of the trial court to acquit the accused person.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 13TH DAY OF MAY 2022WM MUSYOKAJUDGEMr. Erick Zalo, Court Assistant.Mr. Mwangi, instructed by the Director of Public Prosecutions, the applicant.