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Court of AppealAllowedCriminal Appeal No. 29 of 1998· [1998] KECA 88 (KLR)

REUBEN H. MULI vs REPUBLIC [1998] KECA 88 (KLR)

Court of Appeal of Kenya
18 December 1998
JGJ. E. GicheruRKR. O. KwachASA. B. Shah
440 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that a magistrate's acquittal under section 202 of the Criminal Procedure Code is final and cannot be reopened, even by the Chief Justice.

What this practically means

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Executive summary

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The appellant, Reuben H. Muli, was one of seven accused persons acquitted on 25th October 1991 by an Ag. Magistrate in Machakos Criminal Case No. 59 of 1994 under section 202 of the Criminal Procedure Code, there being no complainant. The charges had ranged from robbery and stealing by persons employed in the Public Service to, in the appellant's case in the alternative, handling stolen goods. On 3rd November 1994 the then Chief Justice, F. K. Apaloo, purportedly exercising revisionary powers, set aside the acquittals in the absence of the accused and directed that the appellant be tried afresh by a different magistrate. The appellant appealed to the Court of Appeal at Nairobi (Gicheru, Kwach and Shah, JJ.A). The Assistant Deputy Public Prosecutor rightly conceded the appeal. The Court held that the Chief Justice had no jurisdiction to revise an acquittal entered under section 202, that such an acquittal bars any subsequent information or complaint for the same matters against the same accused, and that the purported revision was wrong, not provided for in law, and aggravated by the absence of the accused. The Court of Appeal allowed the appeal, set aside the Chief Justice's order, and restored the acquittal of 25th October 1991. The judgment binds subordinate courts and the High Court: a section 202 acquittal is immune from revision and constitutes a statutory bar to re-prosecution for the same matters. No costs order was recorded.

Key legal issues

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01

Jurisdiction to revise a section 202 acquittal

Holding

The Chief Justice had no jurisdiction to revise an acquittal entered under section 202 of the Criminal Procedure Code; the purported revision was wrong and not provided for in law.

Reasoning

The magistrate had acquitted all accused under section 202 of the Criminal Procedure Code because there was no complainant. Such an acquittal is a statutory bar to subsequent proceedings for the same matters. The Chief Justice's purported exercise of revisionary powers to set aside that acquittal, and to do so in the absence of the accused, had no legal basis, and the Court of Appeal allowed the appeal on the State's own concession.

p. 2
02

Effect of setting aside the revisionary order

Holding

Setting aside the Chief Justice's order restores the original acquittal of 25th October 1991.

Reasoning

Having found the revisionary order a nullity for want of jurisdiction, the Court of Appeal set it aside and declared that its effect was to restore the acquittal made by the Ag. Magistrate on 25th October 1991, ending the prospect of a fresh trial before a different magistrate.

p. 2

Legal principles established

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  • An acquittal under section 202 of the Criminal Procedure Code is a bar to any subsequent information or complaint for the same matters against the same accused, and cannot be revised by the Chief Justice, least of all in the absence of the accused.

Court orders

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  1. 1.Appeal allowed
  2. 2.Order of the Chief Justice setting aside the appellant's acquittal and directing trial afresh set aside
  3. 3.Acquittal order made on 25th October, 1991 restored
On appeal from
High Court of Kenya at Nairobi
H.C.C.CR.C. No. 59 of 1994
Jurisdiction invoked
Appellate jurisdiction over a conviction, judgment, decree and order of the High Court of Kenya at Nairobi (criminal appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "REUBEN H. MULI vs REPUBLIC [1998] KECA 88 (KLR)", Case Analysis (1998). Criminal Appeal No. 29 of 1998. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/88/eng@1998-12-18

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.