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High CourtAllowedCriminal Revision No. 387 of 2018

Republic v Catherine Mutheu Ndung'a & Emily Mwikali

High Court of Kenya
14 June 2019
NMNjoki Mwangi
5,117 words in judgment
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The bottom line

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Prosecutors can amend charges and must continuously disclose evidence, even late in the trial, to ensure a fair hearing.

What this practically means

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Executive summary

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The Office of the Director of Public Prosecutions applied by way of revision under Sections 362, 363, 364 and 365 of the Criminal Procedure Code, seeking to vary two orders of Hon. Nyakweba, Principal Magistrate, made on 29th and 30th November 2018 in Mombasa Criminal Case No. 2574 of 2012: the refusal to allow the prosecution to amend Count 1 of the charge, and the closure of the prosecution's case before the Investigating Officer, who was present in court, could testify. The respondents, represented by Mr. Magolo, opposed, arguing that revision was limited to regularity, correctness and legality, that constitutional issues could not be resolved on revision, and that the prosecution was attempting to bulldoze the trial. The High Court, per Njoki Mwangi J, held that the Magistrate misapprehended Section 214 CPC: the prosecutor's application was a straightforward request to align the charge with the evidence, the accused retained the right to recall and cross-examine witnesses, and refusing the amendment was unjustifiable and unreasonable. On the closure of the case, the court held that the duty of disclosure is continuous throughout the trial, that Section 150 CPC permits calling or recalling witnesses at any stage, and that the Magistrate should have adjourned to allow the defence to review the Investigating Officer's statement rather than shut him out. Invoking Article 165(7) of the Constitution and Section 364(1)(b) CPC, the court quashed the orders of 29th and 30th November 2018, granted the revision as prayed, remitted the file for re-allocation, and permitted the prosecution to amend Count 1.

Key legal issues

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01

Amendment of a charge under Section 214 of the Criminal Procedure Code

Holding

The Trial Magistrate erred in refusing the amendment of Count 1; the prosecutor's application was a straightforward request to align the charge with the evidence, and no prejudice would have been occasioned to the accused.

Reasoning

The court found the Magistrate misread Section 214, which permits amendment where the charge is defective in substance or form. The prosecutor's explanation that the evidence could not support the amount charged was a proper basis for amendment. The accused retained the right to recall and cross-examine witnesses, so no prejudice arose.

p. 3
02

Closure of the prosecution's case and late disclosure of the Investigating Officer's statement

Holding

The Magistrate did not exercise his discretion judiciously in shutting out the Investigating Officer; he should have adjourned to give the defence time to review the statement.

Reasoning

The duty of disclosure is continuous, and Section 150 CPC permits calling or recalling witnesses at any stage with adjournment if prejudice may arise. The Investigating Officer was present to produce documentary evidence marked for identification; shutting him out threw out the prosecution's evidence.

p. 5
03

Jurisdiction of the High Court on revision

Holding

Under Articles 165(6) and (7) of the Constitution and Sections 362 and 364(1)(b) CPC, the High Court may call for and examine subordinate court records and alter or reverse orders to ensure fair administration of justice.

Reasoning

The court invoked its supervisory jurisdiction over subordinate courts, finding the applicant's complaint grounded on a solid basis, and quashed the orders of 29th and 30th November 2018.

p. 5

Legal principles established

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  • The prosecution's duty to disclose evidence is a continuing one throughout the hearing of the prosecution's case, not limited to the pre-trial stage.
  • The right to a fair trial under Article 50 applies to the prosecution and the accused alike.
  • The DPP controls the conduct of the prosecution's case, including when to amend a charge, and the Trial Court should not unreasonably curtail that power.

Court orders

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  1. 1.The application for revision is granted as prayed
  2. 2.The Deputy Registrar shall remit the court file for Mombasa Chief Magistrate's Court Criminal Case No. 2574 of 2012 to the Chief Magistrate's Criminal Court for re-allocation
  3. 3.The said case to be mentioned before the said court on 27th June, 2019 for fixing of a further hearing date for the prosecution's case
  4. 4.The Prosecution shall be permitted to amend Count 1 of the charges leveled against the 1st accused (1st respondent)
On appeal from
Mombasa Chief Magistrate's Court
Criminal Case No. 2574 of 2012
Jurisdiction invoked
Articles 165(6) and (7) of the Constitution; Sections 362, 363, 364 and 365 of the Criminal Procedure Code

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, "Republic v Catherine Mutheu Ndung'a & Emily Mwikali", Case Analysis (2019). Criminal Revision No. 387 of 2018. Source:

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