Republic v Dennis Gitonga Manyara [2017] KEHC 2008 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

REVISION NO. 291 OF 2017

REPUBLIC  …………………………………..………..…APPLICANT

VERSUS

DENNIS GITONGA MANYARA ………….………..……. RESPONDENT

RULING ON REVISION

1. The revision was commenced by way of a letter dated 28/8/2017 by Mr. P. M. Namiti, the Prosecution Counsel on  behalf of the Director of Public Prosecutions.  Learned Counsel complained that Dennis Gitonga Manyara had been acquitted in unclear circumstances.  He urged that a fresh trial be ordered.

2. DENNIS GITONGA MANYARA was charged on 13th March, 2017 with the offence of neglecting to prevent a felony contrary to section 392 of the Penal Code.  He also faced an alternative count of breaking into a building contrary to section 306 (a) of the Penal Code.  He pleaded not guilty to the charges. The matter was then fixed for hearing on 19th June, 2017.

3. The record shows that when the matter was called out for hearing on the trial date, the accused was present.  The Prosecutor told the Court that he neither had the Police file nor any witness.  The Court then ruled that the Prosecution did not have any evidence against the accused and acquitted him under section 210 of the Criminal Procedure Code.  It is this decision the DPP vide his letter dated 28th August, 2017 wants reviewed and set aside.  In that letter, the DPP states that the accused was acquitted under unclear circumstances.

4. The jurisdiction of this Court to review a decision of a subordinate court is to be found in section 362 of the CPC.  That section allows this Court to call for any record of the lower court, examine the same with a view to satisfying itself as to the propriety or legality of any order made or the proceedings generally.

5. Section 202 of the CPC provides that where the complainant fails to attend the trial when the accused has attended, the court is to acquit the accused.  Section 210 of the CPC on the other part provides that where the court is of the opinion that there is no sufficient evidence against an accused, it shall acquit him.

6. In the present case, the complainant was represented by the Prosecutor who attended court on the trial date but informed the court that he neither had the file nor any witness.  He never explained why that was the case yet he was aware of the hearing date ever since 13th March, 2017.  Further, he did not apply for adjournment.  Even if he did, he had to contend with section 283 of the CPC.  That section allows the court to adjourn or postpone a hearing in the absence of witnesses or for any other reasonable cause to be recorded.  He did not inform the court if there were any witnesses in existence and if so, whether they had been bonded.  Informing the court that the Police file and witnesses were unavailable was not enough to warrant an adjournment of the case. Fair trial under Article 50 of the Constitution of Kenya presupposes a trial of an accused commencing at the earliest and being concluded within a reasonable time.

7. In this regard, it is not correct as asserted by the DPP in his letter that the accused was acquitted under unclear circumstances.  The Prosecutor had clearly told the court that he neither had the police file nor any witness. That meant that, he had no evidence to offer and the trial court properly exercised its discretion in acquitting the accused.   In a working judicial system, trials are expected to commence and proceed without fail on the first date they are fixed for hearing.  That is what our Constitution aspires and it is the obligation of each court to achieve that aspiration. The days when the trial of accused persons was at the mercy of the prosecution, whereby criminal trials hanged over their heads for years without end like swords of demodes, are long gone. Everyone and each state office is under the strict dictates of the Constitution and the trial court was duty bound to follow the Constitution. In the circumstances, under Articles 50 and 159 of the Constitution  as read with section 210 of the CPC the trial Court was duty bound to dispense justice without undue delay. It cannot be faulted for seeking to meet the aspirations of the Constitution.

8.  Accordingly, the review is hereby declined.  Let this Ruling be served upon the DPP and the trial Court.

DATED and DELIVERED at MERU this 9th day of November, 2017.

A. MABEYA

JUDGE