Mwonga Kalii v Republic [2022] KEHC 1307 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MAKUENI

HCCR REV. NO. E006 OF 2021

MWONGA KALII ..............................APPLICANT

VERSUS

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

RULING

1.   This is a request for revision in a criminal matter, under section 362 as read with section 364 of the Criminal Procedure Code (cap.75), brought to this court by way of a letter dated 25/02/2021 from Isika & Associates advocates for the applicant.

2.   The matter relates to the conduct of criminal proceedings in Makindu SPM Criminal Case No. 836 of 2019 Republic –vs- Mwonga Kalii.

3.   The complaint brought to this court is  that when counsel for the accused person applied for adjournment in the trial court, in order to attend training, the trial magistrate declined to grant adjournment and  instead proceeded to hear four (4) witnesses, thus denying the accused person his constitutional right to representation.

4.     When this matter came before me on 21/03/2022, Mr. Tanui for the Director of Public Prosecution indicated that he had no objection to the grant of revision orders to have the matter startde-novoas only one witness had testified in the magistrate’s court. Ms. Ongo’nga for the applicant on her part, urged this court to allow the request for revision.

5.   Having perused the trial court file and proceedings, I note that only one witness has testified. I agree that the trial magistrate should have allowed the adjournment sought by counsel, as though the case first came to the trial court on 2/9/2019, the main cause of delays up to 18/2/2021, was the prosecution challenges in supplying documents to the defence, such as the medical report (P3 form).

6.   I thus find sufficient reason to exercise this court’s powers in revision under section 362 of the Criminal Procedure Act, and set aside the proceedings and evidence taken by the trial court on 18/2/2021. I thus order that the trial commences de-novo for trial before another trial magistrate, not being J.D Karani – Resident Magistrate.

7.   In this regard, I order that the magistrate’s case be mentioned before any magistrate in Makindu on 29/03/2022 for directions and de-novo hearing, other than J.D Karani – Resident Magistrate.

DELIVERED, SIGNED & DATED THIS 24TH DAY OF MARCH 2022, IN OPEN COURT AT MAKUENI.

……………………………….

GEORGE DULU

JUDGE