WICKLIFE OTIENO NGODE Alias TOTI & TOBIAS ODHIAMBO OTIENO v REPUBLIC [2011] KEHC 1899 (KLR)

REPUBLICOF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CRIMINAL MISCELLANEOUS APPLICATION NO. 2 OF 2011

1. WICKLIFE OTIENO NGODE Alias TOTI

2. TOBIAS ODHIAMBO OTIENO ……............................……. APPLICANTS

=VERSUS=

REPUBLIC ……………………………...............……….. RESPONDENT

RULING

The two (2) applicants had filed their identical applications filed in court on 11th January 2011 by which they sought orders barring the continuance of their trial in Cr. 2414/2010 on a charge of Robbery with Violence before the Chief Magistrate in Mombasa. They submit that their trial amounts to double jeopardy as they had already been charged with the same offence in Cr. 2515/2009. Mr. Onserio for the State submitted that there was no double jeopardy because in the first trial Cr. 2515/2009 the charge was terminated by way of a ‘Nolle prosequi’. As such he argues there was no bar to a subsequent charge.

I have myself obtained and perused the two files in question. It is correct that on 3rd August 2010 the State entered a ‘Nolle prosequi’ dated 2nd August 2010 and signed by Mr. Ondari, Assistant Deputy Public Prosecutor. The effect of a ‘nolle prosequi’ is not an acquittal. It is merely a termination of the charges which an accused person faced. A nolle is not a bar to future prosecution over the same incident. This is what infact happened in Cr. 2414/2010. The two accused were re-arrested and charged. There is no illegality here. I find no merit in this application and I decline to issue orders staying the trial in the lower court. It is ordered that Crim. 2414/2010 proceed to its logical conclusion.

Dated and Delivered at Mombasa this 12th day of July 2011.

M. ODERO

JUDGE

In the presence of:

Both in person

Mr. Onserio for State