Republic v BOS [2018] KEHC 9956 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL DIVISION

CRIMINAL REVISION NO.479 OF 2017

REPUBLIC......APPLICANT

VERSUS

BOS................RESPONDENT

RULING

The prosecution was aggrieved by the decision of the trial court made in Nairobi Children’s Court Criminal Case No.325 of 2016 Republic –versus- Billy Ochieng Seda wherein the trial court ordered the prosecution to close its case before the doctor had testified. The charges facing the Respondent are under the Sexual Offences Act. According to Mr. Momanyi, Learned Prosecuting Counsel, the prosecution did not fail to produce the doctor on account of indolence or laxity. He pointed out that since the commencement of trial, the trial was adjourned several times and in most cases not at the instance of the prosecution. He submitted that the trial court failed to take into consideration the antecedents of the parties’ conduct and the trial court itself when it declined to grant the prosecution’s application for an adjournment to enable it call the doctor give his testimony in the case. Mr. Momanyi urged the court to take into consideration the broader interest of justice and allow its application to set aside the trial court’s order closing the prosecution’s case and allow it to call the doctor to testify in the trial.

The Respondent objected to the application. The Respondents’ counsel Mr. Ongoro submitted that the Respondent’s interests who are minors should be taken into consideration. On the day the trial court closed the prosecution’s case, the prosecution had indicated to the court that the doctor was available to testify in the case. However, even after the case was called for a second time, the doctor was not in court. He submitted that the case had failed to take off on several occasions due to the prosecution’s lack of diligence in producing witnesses in court on the days the hearing has been scheduled. Learned counsel explained that the decision rendered by the trial court was justified in the circumstances since the prosecution’s lack of seriousness in prosecuting the case could not be a basis for the continued delay of the hearing and conclusion of the trial. He urged the court to dismiss the application.

This court has considered the rival submission made by the parties to this application. This court has jurisdiction under Section 362of the Criminal Procedure Codeto revise a decision where there is an irregularity or illegality. In the present application, it was evident that for the broader interest of justice, the application must be allowed. The Respondents are facing a serious charge under the Sexual Offences Act. The victims of the alleged crime must also feel that justice was not only done but was seen to be done. The prosecution has indicated that it is willing to produce the doctor to produce the medical evidence in support of the prosecution’s case. Although this court noted that the prosecution counsel’s conduct in the case may not have been what was expected of it, this court cannot lose sight of the fact that the interest of justice in this particular case demands that the remaining witness be allowed to give his testimony.

In the premises therefore, the order issued by the trial court on 19th September 2017 closing the prosecution’s case is hereby set aside. The prosecution shall call the doctor on the date that the hearing date shall be fixed by the trial court. The Children’s Court file is ordered returned to the court for hearing and conclusion of the trial. It is so ordered.

DATED AT NAIROBI THIS 4TH DAY OF OCTOBER 2018

L. KIMARU

JUDGE