Samuel Kiprono Terer v Republic [2018] KEHC 3710 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KITUI

CRIMINAL REVISION CASE NO. 243 OF 2018

SAMUEL KIPRONO TERER..........................................APPLICANT

VERSUS

REPUBLIC.....................................................................RESPONDENT

R U L I N G

1. Samuel Kiprono Tererwas arraigned before the Magistrate’s Court on the 29thday of March, 2016having been charged with three (3) Counts:

Count I:  Conspiracy to Defraudcontrary to Section 317of the Penal Code.Particulars of the offence were that between 15thday of February, 2016and 17thday of February, 2016at Industrial Area Remand Prisonwithin Nairobi Countyjointly with others not before Court conspired to defraud Jeremiah James Mwendwaof his Motor-vehicle registration number KBW 506Q Toyota Passovalued at Kenya Shillings Three Hundred and Fifty Five Thousand (Kshs. 355,000).

Count II:  Forgerycontrary to Section 345of the Penal Codeas read with Section 357(a)of the Penal Code.Particulars of the offence were that between 17thday of February, 2016and 22ndday of February, 2016in Nairobi Countyjointly with others not before Court without lawful authority and with intent to defraud fored a certain NICcheque leaf No. 000081of Western (k) Safarisinto a bankers cheque of Kenya Shillings Three Hundred and Fifty Five Thousand (Kshs. 355,000)purporting it to be a genuine bankers cheque issued by NIC BankHarambee Avenue Branch Nairobi to Jeremiah James Mwendwa.

Count III: Obtaining Goods by False Pretencescontrary to Section 312of the Penal Codeas read with 313of the Penal Code.Particulars of the offence were that on the 22ndday of February, 2016at Kefri Officesin Kitui Centralwithin Kitui Countyjointly with others not before Court with intent to defraud and by false pretences obtained from Jeremiah James Mwendwa Motor-vehicle registration number KBW 506Q Toyota Passovalued at Kenya Shillings Three Hundred and Fifty Five Thousand (Kshs. 355,000)by falsely pretending that cheque leaf number 000081dated 22nd February, 2016in the name of Jeremiah James Mwendwawas a genuine NICBankers Cheque for purchase of the said Motor-vehicle a fact he knew to be false.

2. He was produced from Industrial Area Prison, Nairobito answer the charges that he denied.

3. By a letter dated the 16thday of April, 2016he sought revision of the matter on grounds that he has been remanded since the 1stday of April, 2015and while in custody he received alerts from NIC Bankthat his cheque leaves had been used in criminal activities.  Following the Court order he was taken to the police station where he lodged an official complaint.  Investigations in the matter were commenced by Mr. Maanyaraof Kikuyu Police Station.

4. Subsequently, he was produced in Kitui Court following malicious allegations.  This, according to him was an infringement of his constitutional rights.

5. By the time the Lower Court file was brought up, it turned out that on the 20thday of April, 2017the State sought to withdraw the case under Section 87(a)of the Criminal Procedure Codewhich the Applicant (Accused) did not oppose.  Consequently the matter was terminated pursuant to the provisions of the Sectionalluded to that provides thus:

“In a trial before a subordinate court a public prosecutor may, with the consent of the court or on the instructions of the Director of Public Prosecutions, at any time before judgment is pronounced, withdraw from the prosecution of any person, and upon withdrawal—

(a) if it is made before the accused person is called upon to make his defence, he shall be discharged, but discharge of an accused person shall not operate as a bar to subsequent proceedings against him on account of the same facts;”

6. The Applicant was discharged before evidence was tendered by the Prosecution.  He may be arrested and prosecuted if there is evidence against him on the same facts.  It will be therefore premature for this Court to determine if the action taken against him was an infringement of his constitutional right.

7. In the premises there is nothing to prompt me to act pursuant to the provisions of Section 362as read with Section 364of the Criminal Procedure Code.

8. It is so ordered.

Dated, Signed and Delivered at Kitui this 18th day of September, 2018.

L. N. MUTENDE

JUDGE