Republic v John Ndirangu Kirathi [2017] KEHC 2359 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIVASHA

CRIMINAL REVISION NO. 35 OF 2017

(From original Conviction and Sentence in Criminal Case No. 777 of 2017 of the Principal Magistrate’s Court at Engineer – E. K. Nyutu, PM)

REPUBLIC……………...…………….APPLICANT

-VERSUS-

JOHN NDIRANGU KIRATHI………. RESPONDENT

IN CHAMBERS ON 7TH NOVEMBER, 2017

BEFORE HON. LADY JUSTICE C. MEOLI, J

RULING ON REVISION

1. Engineer Principal Magistrate’s Criminal Case 777 of 2017 was referred to this court for revision by the Principal Magistrate, Engineer Court, vide her letter of 1st November 2017.   The reference was in respect of an order made on 19th October, 2017 discharging the Accused therein under Section 87 (a) of the Criminal Procedure Code.   The order was made ten day after the same court had convicted the Accused on his own plea and sentenced him to pay a fine of Shs 10,000/= in default to serve 3 months imprisonment.  The Accused is apparently serving the term.

2. Having perused the proceedings in the said lower court file, I have noted that the Accused had been arraigned in court on a charge of Failing to attend court contrary to Section 23 of the Police Act Cap 84 Laws of Kenya.    The particulars stated that on the 18th day of September, 2017 at Engineer Law Courts in Kinangop within Nyandarua County, being an Accused person in Criminal Case Number 602 of 2017, he failed to attend court for mention.

3. On my own volition, I similarly called for the above case file the subject matter of the charge and perused the same.  In that latter case John Ndirangu Kirathi, the subject of the present revision was charged jointly with another for the offence of Obtaining money by false pretences.

4. That matter was set for hearing on 19th October, 2017 and mention on 14th September, 2017.  Bail terms were set by the court and later reviewed.  Thus on 5th September, 2017 the surety presented on behalf of the subject Accused was approved.  According to the release orders issued on the same date, the subject Accused was required to attend court on 14th September 2017 but for an unexplained reason, the matter was mentioned on 11th September 2017 and a warrant of arrest issued as both the Accused persons were absent.

5. On 18th September, 2017 the subject Accused’s surety attended court and explained her inability to present the Accused in court.  As a result the warrant of arrest was further extended and the case set for a further mention on 25th September, 2017, which also did not take place.  On 9th October, 2017 the subject Accused was brought to court under warrant of arrest and also charged in the Principal Magistrate Court Criminal Case Number 777 of 2017.  His explanation in Principal Magistrate Court Criminal Case Number 602 of 2017  that he was unwell hence his failure to attend court was not accepted and he was ordered remanded in custody pending the production of medical records.

6. It would appear that the court only realized that it had erred by issuing a warrant arrest in Criminal Case Number 602 of 2017 on 19th October, 2017.  However the proceedings were recorded in Criminal Case 777 of 2017 which was concluded, rather than in Criminal Case Number 602 of 2017.  On 23rd October, 2017 the court released the subject Accused from custody in the latter case.

7. In my considered view, the anomalies highlighted could have been avoided with a little more diligence by the registry staff, the court and the prosecution.  It is easy to see the human cost of such errors from the fact the subject Accused was not only subjected to a fresh and secondary prosecution, but also was incarcerated in custody in connection with his primary case.

8. With regard to the former, the charges therein were based on a repealed statute.  The Police Act was repealed in 2011 with the enactment of the National Police Service Act.  The subject Accused was therefore charged with an offence unknown to the law and the plea court ought not to have taken cognisance of the charge, but instead invoked Section 89 (5) of the Criminal Procedure Code.  Secondly, the subject Accused was out on a bail granted by the court, and not by the police as the particulars purported.  Hence, even if the Police Act were still in the law books the charge itself would have been inappropriate in the circumstances.

9. The conviction of the subject Accused in Criminal Case Number 777 of 2017 cannot stand in the circumstances and is quashed.  The sentence is consequently set aside.  It does not appear that the Accused had paid the fine.  In the event that he is serving the default sentence, I direct that he be released forthwith.

10. With regard to the erroneous proceedings and order in Criminal Case Number 777 of 2017 purporting to withdraw a determined case, I direct that the proceedings of 19th October, 2017 be quashed for being irregular as the court was alreadyfunctus officioon the material date.  Both lower court files are remitted back to the lower court for necessary action and retention as the case may be.

Written and signed at Naivasha this 7th day of November, 2017.

C. MEOLI

JUDGE