Case ID:170473

Republic v James Musyoki Mutinda [2020] eKLR

Case Metadata

Case Number:

Criminal Case 2 of 2017

Parties:

Republic v James Musyoki Mutinda

Date Delivered:

11 Sep 2020

Case Class:

Criminal

Court:

High Court at Kitui

Case Action:

Ruling

Judge(s):

Robert Kipkoech Limo

Citation:

Republic v James Musyoki Mutinda [2020] eKLR

Court Division:

Criminal

County:

Kitui

Case Outcome:

Application allowed.

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KITUI

CRIMINAL CASE NO. 2 OF 2017

REPUBLIC.....................................................................PROSECUTOR

VERSUS

JAMES MUSYOKI MUTINDA............................................ACCUSED

R U L I N G

1.

JAMES MUSHOKI MUTINDA

, the accused herein is charged with the offence of

Murder Contrary to

Section 203

as read together with

Section 204

of the

Penal Code

. The particulars are that on 29

th

December, 2016 at Kanyangi Location Lower Yatta within Kitui County, he murdered one

WAMBUA NYWAVA.

2. The accused denied committing the offence and the prosecution lined up six witnesses were heard by the trial judge Hon. Justice L.N.Mutende who has since moved on transfer. The Hon. Judge evaluated the evidence tendered and placed the accused on his defence on 19

th

November, 2019.

3. The record of proceedings shows that on 23

rd

July, 2020, both the defence and prosecuting counsel orally informed the court that there were negotiations going on which were likely to reach a settlement and requested for time to enter into plea bargain agreement. The court obliged and granted them upto 23

rd

September, 2020 to possibly reach a settlement.

4. On 23

rd

September, 2020 this court was informed by both the defence and prosecuting counsel that an agreement had been reached and that the same was in the process of being filed. This court gave the parties upto 13

th

October 2020 to file the aforesaid agreement but on 13

th

October 2020, the Office of Director of Public Prosecutions requested for more time stating that they needed to comply with procedures but did state which procedures required to be complied with and how. This court nevertheless granted the State its wish and fixed the matter for Mention on 9

th

November, 2020 to enable the parties file a plea bargain agreement.

5. On 9

th

November, 2020, the Director of Public Prosecutions through

Mr.Okwema

informed this court that they had not filed a plea bargain agreement but had instead opted to apply to discharge the accused as they no longer wanted his prosecution. The reasons given are that the two families of the deceased and the accused had reached a settlement and an affidavit had been filed to that effect sworn by

NDUKU NG’WAVA

(the mother to the deceased) on 9

th

November, 2020.

6. The defence expressed no objection in that regard and this court directed the State to file a formal Notice to withdraw the charge against the accused. The Officer of Director of Public Prosecutions has now filed a

“nolle prosequi”

dated 9

th

November 2020 informing this court of their intention to have the Criminal charge terminated under the

Provisions of Article 157 (6) ( c)

of the

Constitution of Kenya).

7. This court has considered the Notice of

Nolle proseque

entered by the State. The same is not opposed.

8. It is important to note that under the Provisions of

Section 137 A ( I a & (b) of Criminal Procedure Rule

a plea bargain can either result in a reduction of a charge or even withdrawal of the charge altogether. The State had no reason to abandon plea bargain but with plea bargain, the latitude for the agreement is extensive and includes matters to do with compensation

et cetra

as they are clearly spelt out under

Section

137 E

of the

Criminal Procedure Code.

9. Having said that I have considered the fact that the prosecution had closed its case and the accused has been found to have a case to answer and placed on his defence pursuant to

Section 211

of the

Criminal Procedure Code

. This court would have been reluctant to accept the

nolle

from the State because this court is granted the discretion to either accept or reject the discontinuance under

Section 25(1)

of the

Office of the Director of

Public Prosecution Article, 2013 and under Article 157 (8)

of the Constitution of Kenya. However I have considered the special circumstances obtaining which are as follows:

i. The accused is a youngman and though the Director of Public Prosecutions stated that he was 17 years at the time medical report filed which indicates he was 18 years when he committed the offence. The circumstances there was an altercation, there was no intention to cause serious harm or death to the deceased.

ii. The agreement reached by both the family of the deceased and the accuse shows that the application by the Director of Public Prosecution is in good faith and the same is reflective of the intention of both families in this month.

iii. This court was alerted and shown both the parents of the deceased and accused seated together in court which was indicative of the fact that there reconciliation between the two families was real and that there was no cohersion or pressure exerted to either family.

In the premises this court allows the Director of Public Prosecutions to discontinue the Criminal case against the accused person. He is hereby acquitted pursuant to the Provisions of

Article 157 (7)

of the Constitution of Kenya and shall be forthwith set at liberty unless he is lawfully held.

Dated, Signed and Delivered at Kitui this 11

th

day of September, 2020.

R. K. LIMO

JUDGE