NOLLE PRESUQUE Petition_15_of_2018.pdf - Samuel Mungai Chege v Republic[2018 eKLR REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KAJIADO PETITION NO 15

NOLLE PRESUQUE Petition_15_of_2018.pdf - Samuel Mungai...

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Samuel Mungai Chege v Republic [2018] eKLR REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KAJIADO PETITION NO. 15 OF 2018 IN THE MATTER OF ARTICLE 22 AND 23 OF THE CONSTITUTION OF KENYA IN THE MATTER OF ALLEGED DENIAL, VIOLATION OR INFRINGEMENT OF FIGHTS AND FUNDAMENTAL FREEDOMS UNDER ARTICLE 49(1) (A), ARTICLE 50(1), (2) AND THE BREACH OF ARTICLE 157 (6) (C) AND ARTICLE 157 (7) OF THE CONSITUTION OF KENYA BETWEEN SAMUEL MUNGAI CHEGE ................... PETITIONER/APPLICANT AND REPUBLIC ...................................................................... RESPONDENT RULING This is a petition by the applicant against the defendant brought pursuant to a notice of motion dated 28/9/2018 expressly to be anchored under section 1A, 1,2,3 1B (1) section 3A of the Procedure Act Article 49(1) (a) 50 (1) (2) 157 (6) (c) and 157 (7) of the Constitution. In the notice of motion the applicant seeks the following orders: 1. That this honourable court does order the immediate and unconditional release of the applicant until a time when all the key witnesses in the offence the applicant is being charged with have been found. 2. That this court does caution the state against the re-arrest of the applicant until such key witnesses in this matter have been found and or traced and the prosecution can prosecute their case without using ugly tactics with respect to this application. The applicant filed an affidavit deponed by his counsel Mr. Waiganjo detailing the circumstances upon which the orders sought should be granted. In a rejoinder to the application the respondent filed a replying affidavit sworn by PC Morris Muli who is the Investigating Officer. In the affidavit PC Muli deponed that the applicant was facing a serious charge of murder contrary to section 203 of the Penal Code. That the state had challenges to secure the key witnesses who took flight out of the jurisdiction of this court. It is further averred in the affidavit that at all times the state has engaged the necessary machinery to assist them trace the witnesses to testify against the applicant. That in the interest of justice the state upon appraising the case file made a decision to enter a nolle prosequi on - Page 1/6
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Samuel Mungai Chege v Republic [2018] eKLR 27/9/s018but such an entry is not a bar to any subsequent prosecution of the applicant. The defendant further asserted that fortunately after the application for nolle prosequi was granted it emerged that the key witnesses had been traced and apprehended. That their presence as crucial witnesses should not be done away with under the guise that the state had entered a nolle prosequi against the applicant. Factual Background The applicant was on 23/1/2018 indicted before this court to stand trial for the offence of murder contrary section 203 as read with section 204 of the Penal Code. The applicant pleaded not guilty to the charge. He was represented at the trial by Mr. Waiganjo Advocate. In the pre-trial conference schedule, the state confirmed availability of witnesses and did apply for a hearing date. The trial of the applicant case was scheduled severally on diverse dates but none of the witnesses summoned attended the hearing. This
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  • Fall '15
  • mwinzi

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