Republic v Joshua Katana Juba [2020] KEHC 882 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CRIMINAL DIVISION

CRIMINAL REVISION NO. 176 OF 2020

REPUBLIC..........................................................................................APPLICANT

VERSUS

JOSHUA KATANA JUBA.............................................................RESPONDENT

R U L I N G

1. The Office of the Director of Public Prosecution vide letter dated 22nd June 2020 addressed to the Deputy Registrar sought that Shanzu Senior Principal Magistrates Court CR. C. No. 535 of 2019 Republic vs Joshua Katana Juba be called for and placed before the Judge for purposes revision under Section 362 to 364 of the Criminal Procedure Code on the grounds that:-

i. The prosecution was not given an opportunity to call its witnesses and adduce evidence in support of its case.

ii. That since no prosecution witnesses had testified, it was inappropriate for the learned trial Magistrate to dismiss the charges under Section 210 Criminal Procedure Code.

iii. The learned Magistrate issued orders releasing the exhibit which is a dangerous weapon to the accused person, the same not having been property identified ownership proved and it was not produced in court which was highly irregular.

2. The Office of DPP urged the court to revise the orders of the learned Magistrate reinstate the charges and the case to be heard before any other Magistrate other than Hon. D. Odhiambo (RM).

3. I have perused the Replying Affidavit of the Respondent/Accused and it is apparent that there is no dispute that the trial Magistrate proceeded to acquit the Respondent under the wrong Section of the Criminal Procedure Code.

4. Section 210 Criminal Procedure Code provides:-

“If at the close of the evidence insupport of the charge and after hearing such summing up, submission or argument as the prosecution and the accused person or his advocate may wish to put forward, it appears to the court that a case is not made out against the accused person sufficiently to require him to make a defence, the court shall dismiss the case and shall forthwith acquit him”.

5. This is not a Section to be applied when the witness has failed to avail witnesses to tender their evidence in court.  The Respondent confirms at paragraph 5 of his replying affidavit that he was acquitted when the complainant failed to attend court on 23/8/2019.

6. It is a Section applicable only when the trial court finds that evidence adduced by the prosecution is not sufficient to place the accused person on defence.  Where the prosecution has failed to avail witnesses the trial Magistrate ought to have acquitted under Section 202 Criminal Procedure Code.

7. This court finds that it is apparent that the trial Magistrate wrongly applied the Section and therefore Respondent was not properly discharged from prosecution. The order of the trial Magistrate is therefore hereby revised and trial of the Respondent reinstated.

8. The Senior Principal Magistrate shall assign the trial of the Respondent either to herself or any other Magistrate at Shanzu Law Courts other than the Hon. D. Odhiambo (RM).  The new trial Magistrate will then give the prosecution limited time within which to prosecute the charge against Respondent without delay.

9. Orders accordingly.

Dated, signedand delivered online by MS TEAMS, this 10th day of December 2020

HON. LADY JUSTICE A. ONG’INJO

JUDGE