Republic v Michael Mwaura Mbuu [2014] KEHC 4315 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CRIMINAL REVISION  NO. 4 OF 2013

REPUBLIC

VERSUS

MICHAEL MWAURA MBUU …………………………..  APPLICANT

RULING ON REVISION

Vide letter dated 231/2013, the Director of Public Prosecutions through the prosecution counsel, Mukofu Naylor appealed to this court to invoke section 362 and section 364 of the Criminal Procedure Code and revise the orders made on 15/1/2013 by Hon. E. Too RM in CMCr. 2404/2011.

I have perused the said record of the lower court and note that on the date complained about, there was no prosecutor in court by 10. 20 a.m.  The prosecution was allowed their last adjournment in the previous court session.  On the date complained about, the trial magistrate stated inter-alia, as follows:-

“Court orders are not made in vain and therefore in the absence of the prosecutor in court, I close the prosecution case.”

Section 362 and section 364 generally give the High Court the powers of revision.

In a criminal trial, the prosecutor should be in court.  In this case, at 10. 20 a.m. there was no prosecutor in court and in the absence of any explanation, the trial magistrate deemed the prosecution case as closed.  No court should be held at ransom by the prosecution.  As stated in Hosea Waweru & 2 Others –vs- Republic (2012) e KLR:-

“The court before which any case is being hard has the right authority and obligation to control the proceedings before it.”

There is therefore nothing in this matter to be revised.  Consequently, I dismiss the application for revision.

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B. THURANIRA JADEN

JUDGE

Dated and delivered at Machakos this 16thday of June 2014.

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B. THURANIRA JADEN

JUDGE