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Republic v Suleiman (Criminal Revision E212 of 2022) [2022] KEHC 16042 (KLR) (5 December 2022) (Ruling)
Neutral citation:
[2022] KEHC 16042 (KLR)
Republic of Kenya
Criminal Revision E212 of 2022
SM Githinji, J
December 5, 2022
Between
Republic
State
and
Ramadhan Rajab Suleiman
Respondent
Ruling
1.On November 17, 2022, the prosecution in this matter called Pw-3 after which they stated that Motor Vehicle Inspector was not summoned and could be available on a Friday as they were highly engaged on the other days of the week. They sought an adjournment. The court denied an adjournment on the grounds that it was an old matter of 2019, prosecution had a last adjournment and summons had not been served by the investigating officer. The court went ahead to close the prosecution case.
2.The prosecution seeks review of the said order under section 362 of the Criminal Procedure Code, to reopen their case and call for the remaining witness. Under section 362 of the Criminal Procedure Code, the high court may call for and examine the record of any criminal proceedings before any subordinate for the purpose of satisfying 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.
3.The mandate of ODPP as derived from Article 157 of the Constitution is to institute and undertake criminal proceedings against any person before court of law other than a court martial in respect of any offences alleged to have been committed by that person.
4.In this case, while it’s within the jurisdiction and discretion of the court to allow or deny an adjournment prayer by the prosecution, it is not within the court’s jurisdiction to close the prosecution case. The right procedure is for the court to deny an adjournment and give the prosecution a room to find a way out, proceed to withdraw the case, terminate it or otherwise close the case themselves. If they leave it to the court, in so doing they grant the court a window to close the case and move forward. Otherwise the court cannot close the case on it’s own volition.
5.Given the foregoing I can only review the order for closure of the prosecution case and not for denial of the adjournment. The said order is discarded to enable the prosecution proceed, close their case or otherwise deal with it as they may find appropriate, within the law.
6.The matter be mentioned before the trial court on December 13, 2022 for a hearing date.
DATED, SIGNED AND DELIVERED AT MALINDI THIS 5TH DAY OF DECEMBER, 2022.S.M. GITHINJIJUDGE
