Closure of the prosecution case is an option available to the Court where a prosecution counsel fails to attend proceedings.

Republic v John Wambua Munyao & 3 others

Criminal Revision No 215 of 2018

High Court at Machakos

G V Odunga, J

December 21, 2018

Reported by Beryl A Ikamari

Criminal Procedure-close of the prosecution case-where the prosecution case was closed by a magistrate's court due to a failure by the prosecution counsel to attend proceedings-whether the Magistrate's Court had jurisdiction to close the prosecution case in the absence of the prosecution counsel.

Brief facts

The applicant sought revision of orders of the Chief Magistrate's Court whose effect was to close the prosecutions case due a failure by the prosecution counsel to attend court. It was explained that on the hearing date, the prosecution counsel was unwell and had instructed another counsel to hold her brief but that counsel got busy and she failed to hold brief.

The applicant contended that a properly constituted court required the judicial officer, the accused person and the prosecution counsel and the orders in question could not be issued in the absence of the prosecution counsel. Therefore, the applicant concluded that the Magistrate's Court acted erroneously in closing the prosecution case in the absence of a prosecution counsel. The applicant added that the decision denied the prosecution the chance to adduce evidence and also denied the victims a right to be heard as part of the right to a fair trial. The applicant also alleged that the decision to close the prosecution case was based on bias and anger related to an earlier encounter between the Magistrate's Court and the prosecution counsel.

Issue

1. Whether the Chief Magistrate's Court had jurisdiction to close the prosecution case in the absence of the prosecution counsel.
2. What was the difference between revision and an appeal and when would it be appropriate to file an appeal instead of an application for revision?

Held

1. The application was said to be brought under section 349 of the Criminal Procedure Code. That was erroneous. The correct legal provision ought to have been section 362 of the Criminal Procedure Code. However, it was not a serious omission although counsel ought to ensure that the correct legal provision was cited.
2. Generally, under the Criminal Procedure Code, the prosecution was required to adduce evidence in support of the charge and to make submissions before a ruling on a case to answer could be made. In a criminal trial, the victim and complainant had a compelling interest in knowing the trial's outcome and such concerns could not be answered by the fact that the prosecution did not attend proceedings.
3. The High Court's powers of revision under section 362 of the Criminal Procedure Code had the purpose of enabling the High Court to satisfy itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any subordinate court. If out of anger, a subordinate court made a wanting decision the High Court would step in and correct it.
4. An issue about the merits of a decision or about the wrongful exercise of discretion, which did not call into question the decision's legality, correctness or propriety, would be an issue for which the remedy was an appeal. The High Court's revisionary jurisdiction should not be a substitute for an appeal and should only be invoked where there were glaring omissions or commissions. A party should not argue an appeal under the guise of revision. Except where orders prejudiced an accused person, the decision on whether or not to hear parties was discretionary.
5. There was no evidence that the reasons for the prosecution counsel's absence were brought to the Court's attention before it commenced its sittings. Under those circumstances, there were various options available to the Court. The Court could adjourn the hearing or it could acquit the accused person. The exercise of discretion within that scope would not amount to incorrectness, illegality or impropriety which could be redressed by invoking the High Court revisionary jurisdiction. The Magistrate's Court was entitled to proceed with the matter in the way that it did.

Application dismissed.