Republic v Julius Muthengi Kiiru ,Boniface Mutu Muthui ,Mutuku Mbiti, Daniel Maluki ,Jonathan Musyoka Kalaa ,James Mwendwa Kiiru ,Jonathan Musyoka Kithome ,Christine Kavete Mwore & Malia Kalaa [2015] KEHC 3876 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT GARISSA

HIGH COURT CRIMINAL NO. 1 OF 2015

REPUBLIC ……………………………..…… APPLICANT

V E R S U S

JULIUS MUTHENGI KIIRU..........................APPELLANT

BONIFACE MUTU MUTHUI.........................APPELLANT

MUTUKU MBITI..........................................APPELLANT

DANIEL MALUKI........................................APPELLANT

JONATHAN MUSYOKA KALAA.................APPELLANT

JAMES MWENDWA KIIRU........................APPELLANT

CHRISTINE KAVETE MWORE...................APPELLANT

MALIA KALAA......................................... APPELLANT

RULING

The nine accused persons have been charged with murder contrary to Section 203 as read with section 204 of the Penal Code.  They are alleged to have murdered Mutua

Mulima on 14 December 2014 at Kirumu village Kyuso Sub-County in Kitui County.

Before the first prosecution witness testified however, on the date of hearing which was 29th June 2015, the Prosecuting counsel requested the court to permit the Director of Public Prosecutions (DPP) to discontinue the Criminal Proceedings herein under Section 25(1) ODPP Act.  Counsel informed the court that the case arose from the consequence of mob justice, and it was thus possible that wrong people were arrested and charged. He thus asked the court to allow the DPP to discontinue the criminal proceedings. Counsel stated that discontinuance of the proceedings would serve the wider interests of justice.

Learned defence counsel Ms. Njalale did not object to the request for discontinuance of the proceedings but felt that the accused should not be charged again.

I have considered the submissions on the prosecution and defence side on the request to discontinue the proceeding herein.

I have perused the provisions of section 25(1) of the ODPP Act.

In my view, with the sheer number of accused persons herein totaling nine, the suspects, the contention of the prosecuting counsel that the charges might have arised from an incident of mob justice  I find no reason to decline the request by the prosecution. I thus grant permission for the discontinuance of the criminal proceedings herein against each of the accused persons.

I cannot order the DPP not to charge any of the accused as requested by the defence. This is because the trial has not even commenced. In addition, section 25 (1) of the ODPP Act does not donate jurisdiction as the court to acquit the accused.

The criminal proceedings herein are thus discontinued, with the permission of this court.

Dated and delivered at Garissa this 2nd day of July 2015.

GEORGE DULU

JUDGE