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MagistrateDismissedCriminal Case re: Obtaining Money by False Pretense c/s 313 Penal Code (charge dated 25/04/2024)· [2024] KEMC 57 (KLR)

Republic v Hassain (Criminal Case E993 of 2024) [2024] KEMC 57 (KLR)

Chief Magistrate's Court, Nakuru
7 May 2024
ANAloyce Peter Ndege
1,518 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The accused, Abdi Kadri Hassan, was charged on 25/04/2024 with obtaining Kshs. 1,000,000 by false pretense contrary to section 313 of the Penal Code, on allegations that he pretended he could convert the money into US dollars. The prosecution opposed bail, the investigating officer deposing that the accused had no fixed address, had disabled his phone, had been arrested while heading to Uganda, and faced similar charges in Eldoret and Busia. On 02/05/2024 the court denied cash bail and granted bond with a Kenyan surety, treating the accused as a possible foreigner and vagabond. Soon after, the complainant, with the concurrence of the prosecution and the investigating officer, sought withdrawal of the charges to enable a civil claim for recovery of the money, part of which had reportedly been refunded. The court framed three issues: withdrawal under sections 204 or 176 of the Criminal Procedure Code, whether the matter fell within their ambit, and whether ADR was appropriate. Relying on Kelly Kases Bunjika v DPP, the court applied the principles that termination of criminal cases must be justified under Article 157(11) considerations of public interest, the interests of justice and avoidance of abuse of process. Although the offence was not capital and thus capable of out-of-court resolution, the weighty affidavit averments on flight risk made ADR and withdrawal contrary to the public interest. The court dismissed the application, holding that the criminal trial should proceed and that any civil recovery action could run concurrently. No costs order was made.

Key legal issues

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01

Whether the complaint may be withdrawn under section 204 CPC

Holding

The court has a discretion whether to allow withdrawal, to be exercised on sufficient grounds; here the application lacked merit

Reasoning

Section 204 permits a complainant to withdraw before a final order if sufficient grounds are shown, but the court retains discretion. Having considered the investigating officer's affidavit evidence that the accused is a flight risk with unknown residence, and the wider public interest in criminal prosecutions, the court found the withdrawal application devoid of merit and dismissed it, holding the criminal trial should proceed with any civil claim running concurrently.

p. 3
02

Whether the matter falls within section 176 CPC reconciliation or ADR

Holding

Although not a capital offence and thus capable of resolution out of court, ADR was inappropriate on the facts

Reasoning

The court accepted the matter was not a capital offence and so fell within matters that can be resolved out of court, but stressed ADR is decided case by case, requiring good faith and regard to reconciliation, public interest and fairness. The weighty affidavit averments about the accused being a possible foreigner and vagabond made the court unsure those objectives would be achieved, so ADR was refused.

p. 3

Legal principles established

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  • Withdrawal or termination of a criminal case must be justified under Article 157(11) considerations of public interest, interests of the administration of justice and the need to prevent and avoid abuse of the legal process
  • In criminal matters the complainant is the State; criminal proceedings protect wider public interest rather than narrow personal interests

Court orders

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  1. 1.Declined to grant the order of withdrawal/termination of the criminal proceedings sought
  2. 2.Dismissed the application for withdrawal/termination
  3. 3.Directed that the criminal trial proceeds, with any civil action for recovery proceeding concurrently

Authorities

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Legislation

  • Penal Codesection 313
  • Criminal Procedure Codesection 204
  • Criminal Procedure Codesection 176
  • Criminal Procedure Codesection 87
  • Criminal Procedure Codesection 202
  • Constitution of Kenya, 2010Article 157(6)(c)
  • Constitution of Kenya, 2010Article 157(11)
  • Constitution of Kenya, 2010Article 159(2)(c)

Cases cited (7)

  • Kelly Kases Bunjika v Director Of Public Prosecutions (dpp) & Another
    [2018] eKLR
  • Medardo v. R
    (2004) 2 KLR 433
  • Shen Zhangua v R
    High Court at Nairobi Miscellaneous Criminal Application 396 of 2006
  • R v Malek Abdulla Mohamed
    High Court at Kisumu No.113 of 1978
  • R v. Abdow Mohamed
  • R v. Juliana Mwikali Kiteme
  • Republic v. Faith Wangoi
    Kajiado HC Criminal Misc. Application No. 1 of 2015
Jurisdiction invoked
Criminal Procedure Code, sections 204 and 176; Article 157(11) of the Constitution

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 Hassain (Criminal Case E993 of 2024) [2024] KEMC 57 (KLR)", Case Analysis (2024). Criminal Case re: Obtaining Money by False Pretense c/s 313 Penal Code (charge dated 25/04/2024). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2024/57/eng@2024-05-07

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