Republic v Omondi (Criminal Case E025 of 2025) [2025] KEMC 406 (KLR)

in Sio area while in the company of PC Shakur, they received information that someone was selling bhang behind Sio Secondary School. They proceeded to the area they had been directed to where they arrested the Accused Person. They searched the Accused Person when they recovered 30 rolls of bhang valued at Kshs. 4,500/=. The Accused Person informed them that the recovered bhang was for his personal use. PW2 No. 225677 CPL Richard Ondara of Bungoma Police Station investigated this case. He corroborated PW1’s testimony on the circumstances under which the Accused Person was arrested while in possession of 30 rolls of bhang. He produced the Government Analyst Report dated 12 th September 2025 (Pexh.3),Exhibit Memo form dated 13th January 2025 (Pexh.4), and an inventory dated 13th January 2025 (Pexh.2) as exhibits in support of the prosecution’s case. Accused Person’s Case The Accused Person absconded court after PW1’s testimony. Where an Accused Person absconds during the pendency of their criminal trial, the provisions of section 206 (1) of the Criminal Procedure Code apply. Section 206 (1) of the Criminal Procedure Code states: Non-appearance of parties after adjournment 1. If, at the time or place to which the hearing or further hearing is adjourned, the accused person does not appear before the court which made the order of adjournment, the court may, unless the accused person is charged with felony, proceed with the hearing or further hearing as if the accused were present, and if the complainant does not appear the court may dismiss the charge with or without costs. Kitale CMC CR. No. E1634 of 2023 Page 2 of 9 Benard Juma Mabuga Judgment

page 2 of 9

A plain reading of the above provisions of the law show that the court can only proceed with a criminal trial in the absence of an Accused Person where an Accused Person is charged with a misdemeanor. Section 4 of the Penal Code defines a felony to mean:An offence which is declared by law to be a felony or, if not declared to be a misdemeanor, is punishable, without proof of previous conviction, with death, or with imprisonment for three years or more. Misdemeanour is said to mean any offence which is not a felony. The offence facing the Accused Person herein attracts a sentence of ten years imprisonment on conviction, therefore, the offence is a felony. On the face of it, it would appear that section 206 (1) of the Criminal Procedure Code does not permit this court to proceed in the absence of an Accused Person charged with the offence herein. Be that as it may, Article 50(2) (f) of the Constitution permits this court to proceed in the absence of an Accused Person where the Accused Person makes his attendance impossible. Article 50 (2) (f) of the Constitution unlike section 206 (1) of the Criminal Procedure Code does not make a distinction between a felony and a misdemeanor in permitting a court to proceed in the absence of an Accused Person where an Accused Person makes his attendance impossible. The foregoing shows that section 206 (1) of the Criminal Procedure Code is not consistent with Article 50(2)(f) of the Constitution. In Republic v Galma Abagaro Shano [2017] eKLR, the court resolved the said inconsistency as follows: 'This court has in a detailed manner determined and ruled that this trial would proceed in the absence of the accused who has waived his right to a fair trial in regard to being present during the trial by absconding and removing himself from the jurisdiction of this court. Kitale CMC CR. No. E1634 of 2023 Page 3 of 9 Benard Juma Mabuga Judgment

page 3 of 9

This court has in its ruling delivered on April 24, 2017 addressed the provisions of Section 206 of the Criminal Procedure Code and Article 50 (2) (f) of the Penal Code. Article 50 (2) (f) provides that: 'Every accused person has the right to a fair trial, which includes the right to be present when being tried unless the conduct of the accused person makes it impossible for the fair trial to proceed.' This court took the view that Section 206 (1) of the Criminal Procedure Code is inconsistent with Article 50 (2) (f) of the Constitution in so far as it allows the court to proceed with the hearing of a case against an accused person who fails to turn up in court in cases where the accused is charged with a misdemeanor and not a felony. My view is that the Constitution of Kenya, being the supreme law of the land does not differentiate the offences be they felonies or misdemeanors. Under the Constitution, every person has a right to a fair trial, which includes the right to be present when being tried unless the conduct of the accused person makes it impossible for the fair trial to proceed. My understanding of this provision is that all the persons who appear before the court charged with either felonies or misdemeanours enjoy equal right to a fair trial which includes the right to be present when being tried unless their conduct makes it impossible for the court to continue with the trial.(Emphasis added) The authority above shows that section 206 of the Criminal Procedure Code was held to be inconsistent with the the Constitution. It is trite law that any law that is inconsistent with the constitution is invalid to the extent of its inconsistency. Despite this court’s industry, this court has not come across any High Court or Court of Appeal decision overturning the finding in the Galma Abagaro Shano case (supra) finding that section 206 of the Criminal Procedure Code is inconsistent with the Constitution. Kitale CMC CR. No. E1634 of 2023 Page 4 of 9 Benard Juma Mabuga Judgment

page 4 of 9

In the circumstances, the prevailing law in this jurisdiction is that where an Accused Person willfully absconds in a criminal case, the court is at liberty to proceed with the criminal case in the absence of the Accused Person regardless of the nature of the offence facing the Accused Person. This court draws inspiration from the Galma Abagaro Shano case (supra) where the learned judge rendered himself thus: It was my view that where an accused person, irrespective of the charge he/she is facing, absconds, then he has waived his/her right to be present when being tried and the court therefore can proceed to hear and conclude the trial in his/her absence and even convict and sentence him. This court determined that it would consider the evidence of the prosecution, in the absence of the accused, and decide whether it proved beyond reasonable doubt that the accused caused the unlawful death of the deceased and that in so causing that death the accused had malice aforethought. Similarly, in Republic v Joshua Chacha Moronge [2019] eKLR, the learned judge held as follows regarding the issue at hand; The aim of a criminal trial is to expeditiously accord justice to all parties. An accused person found guilty of an offence ought to be accordingly sentenced in line with the law otherwise one must be acquitted forthwith. It is that balance which a trial aims to achieve. Therefore, in a case where one of the parties makes the trial unable to proceed then such a party visits an injustice to the other. That being so, a Court of law is fully enabled to deal with such instances. On one hand if the delay is occasioned by the prosecution the Court has powers to even compel the hearing to proceed. On the other hand, if the delay is occasioned by the accused person Article 50(2)(f) of the Constitution comes to play. For a Court to take refuge in Article 50(2)(f) of the Constitution and proceed on with a trial in the absence of an Kitale CMC CR. No. E1634 of 2023 Page 5 of 9 Benard Juma Mabuga Judgment

page 5 of 9

accused person the Court must first be satisfied that such inability to proceed with the trial is caused by the deliberate conduct of the accused person. That therefore means if the Court forms the opinion that the delay is not caused by any deliberate conduct on the part of the accused person then the trial cannot legally proceed in the absence of the accused person. To reach any of the findings, a Court must carefully consider the particular circumstances of the case. In view of the foregone I now find and hold that Article 50(2)(f) of Constitution perfectly comes to play in this case and order that the trial shall proceed the absence of the accused person notwithstanding. The circumstances of this case are almost similar to the circumstances in a very old case; Price v State 36 Miss 531 (1858), where Price’s conviction in absentia was affirmed by the court in the following words: He was present in court when the trial was commenced, and when the case was put to the jury; and though under recognizance of bail before that time, for his appearance to answer the charge brought against him, he was no longer at liberty, but was in custody of the law. If he afterwards withdrew from the court, or escaped, so as not to be present at the return of the verdict, it is by his own unlawful act, of which he should not be permitted to take advantage. His absence must be considered, at least, as a waiver of his right to be present; and his own illegal act should not be permitted to thwart the process of the law to his advantage. (Emphasis added) The Accused Person in this case was present in court on 10 th March 2025 when this matter was fixed for hearing on 26 th March 2025. He failed to attend subsequent court sessions. Consequently, this court issued warrants of arrest against him. The Accused Person was neither arrested in execution of the warrants of arrest against him nor did he avail himself before this Kitale CMC CR. No. E1634 of 2023 Page 6 of 9 Benard Juma Mabuga Judgment

page 6 of 9

court. It follows that the Accused Person made his court attendance in this matter impossible. The reasons above and the authorities above inclined this court to invoke the provisions of Article 50 (2) (f) of the Constitution to proceed with this matter in the absence of the Accused Person. ANALYSIS AND DETERMINATION This court has carefully considered the evidence on record. The only issue that merits determination is whether the prosecution proved their case against the Accused Person beyond reasonable doubt. Section 3 of the Narcotic Drugs and Psychotropic Substances (Control) Act sets out the ingredients of the offence facing the Accused Person as follows: 3. Penalty for possession of narcotic drugs, etc. (1)Subject to subsection (3), any person who has in his possession any narcotic drug or psychotropic substance shall be guilty of an offence. (2)A person guilty of an offence under subsection (1) shall be liable— (a)in respect of cannabis, where the person satisfies the court that the cannabis was intended solely for his own consumption, to imprisonment to a term of not more than five years or to a fine of not more than one hundred thousand shillings; the foregoing shows that the offence facing the Acussed Person is held to have been committed by the Accused Person where the prosecution proves beyond reasonable doubt that the Accused Person was found in possession of bhang for his own consumption. The evidence led by PW1 and PW2 shows that the Accused Person was found in possession of thirty (30) rolls of bhang on the date of the incident. The inventory dated 13th January 2025 and the Government Analyst report dated Kitale CMC CR. No. E1634 of 2023 Page 7 of 9 Benard Juma Mabuga Judgment

page 7 of 9

12th September 2025 corroborated the prosecution witnesses oral testimony herein. PW1 testified that during the Accused Person’s arrest, the Accused Person told him that the bhang found in his possession on the date of the incident was for his personal use. The Accused Person did not displace PW1’s evidence that the bhang was for his personal use even after crossexamination. Taking the prosecution’s evidence on record in its totality, and in the absence of the Accused Person’s evidence to cast any reasonable doubt on the prosecution’s case, this court holds and finds that the prosecution proved their case against the Accused Person beyond reasonable doubt. DETERMINATION The upshot of the foregoing is that the Accused Person is convicted under Section 215 of the Criminal Procedure Code for the offence of being in possession of bhang contrary to Section 3(1) as read with Section 3 (2) (a) of the Narcotic Drugs and Psychotropic Substances (Control) Act. Judgment accordingly. Judgment read, signed, and delivered in open Court at Bungoma this 29th day of October 2025 T. O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Mr. Maroro for ODPP Kitale CMC CR. No. E1634 of 2023 Page 8 of 9 Benard Juma Mabuga Judgment

page 8 of 9

C/A: Mr. Rioba Kitale CMC CR. No. E1634 of 2023 Page 9 of 9 Benard Juma Mabuga Judgment

page 9 of 9