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|Case Number:||Criminal Case 63 of 2002|
|Parties:||Mwaura v Republic|
|Date Delivered:||19 Dec 2003|
|Court:||High Court at Nairobi (Milimani Law Courts)|
|Judge(s):||Nicholas Randa Owano Ombija|
|Citation:||Mwaura v Republic  eKLR|
|Parties Profile:||Individual v Government|
Mwaura v Republic
High Court, at Nairobi December 19, 2003
Criminal Case No 63 of 2002
Criminal Practice and Procedure – suspension of trial judge - consequence of suspension - mistrial.
The accused person was arrested and arraigned in court on 13th day of March 2003. Having pleaded not guilty, the case proceeded for hearing wherein the prosecution called and tendered evidence from 8 witnesses.
Further hearing was scheduled for 20th November 2003. On 15th October 2003 the trial judge was suspended from his duties by the President of the Republic of Kenya through Gazette Notice No 7282 of 2003. A tribunal was set up to investigate his conduct together with 23 other judges who were equally suspended.
1. Where a trial judge ceases to have jurisdiction, the trial must be declared a mistrial.
2. The trial of an accused person ought not be tied to the uncertain destiny of a particular judge awaiting investigations.
Republic v Stanley Njoroge Munene & 12 others Nairobi High Court
Criminal Case No 18 of 2000
No statutes referred.
Mr Opolo for the Accused.
|Case Outcome:||Application allowed|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
REPUBLIC OF KENYA
IN THE HIGH COURT AT NAIROBI
CRIMINAL CASE NO 63 OF 2002
The accused person was arrested and arraigned in court on the 13th day of March 2003. He pleaded not guilty to the charge of murder. At the hearing the prosecution called and tendered evidence from eight (8) witnesses so far. Further hearing was scheduled for 20th November, 2003.
On 15th October 2003 the learned trial judge was suspended by His Excellency the President of the Republic of Kenya through Gazette Notice No 7282 of 2003.
Concomitantly with the suspension His Excellency the president appointed a tribunal to investigate his conduct along with other 23 judges who were equally suspended. The hearing of the tribunal is scheduled for December 2003. When the file was placed before me on 3rd December 2003 Mr Opolo for the accused drew my attention to the anomaly in our law that in the High Court there is no provisions for continuance of the case in the event the presiding judge ceases to have jurisdiction. He opined that in those circumstances this court should declare the trial a mistrial. In this regard he referred me to Nairobi HCCR Case No 18/2000: Republic – vs- Stanley Njoroge Munene & 12 others for the proposition that where a trial judge ceases to have jurisdiction the trial must be declared a mistrial. Osiemo J in Republic –vs- Stanley Njoroge Munene had this to say in similar circumstances:
“... I agree with counsel that the trial of the accused person cannot be tied to the uncertain destiny of a particular judge who is now awaiting investigations ...”
I adopt those words of wisdom while I sympathise with the plight of the accused person I share the view that the ends of justice will be better by a declaration that the trial is a mistrial.
In the premises I declare the trial before Waki J, a mistrial. Accordingly I order that the accused person be discharged. In the peculiar circumstances of this case I order that the state be at liberty to prefer fresh charges against the accused person if it so wishes. It is ordered.
Dated and delivered at Nairobi this 19th December, 2003