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JudgmentJOSEPH WAIGWA WAWERU VS REPUBLIC5 min read

JOSEPH WAIGWA WAWERU VS REPUBLIC

High Court at Nyahururu High Court · · Lilian Mutende


  1. This matter has been placed before me pursuant to the provisions of Section 363(2) of the Criminal Procedure Code which empowers a subordinate court of the first class to call and examine the record of any criminal proceedings of a court of lower class than it which is established within its local limits of jurisdiction for the same purposes as given by the provisions of Section 362 of the said Code. By a letter dated 21/01/2025, the Chief Magistrate Hon. E.H. Keago seeks revision of a decision by Hon. M. Osoro SRM, that he perused and found to be irregular.
  2. The genesis of the matter is that the accused, Joseph Waigwa Waweru was indicted for Attempted Murder contrary to Section 220(a) of the Penal Code.  Having denied the charges, trial commenced.  A total of five (5) witnesses testified and the prosecution closed its case on 15/07/2024, after which the court reserved the ruling for 07/08/2024.
  3. On 09/12/2024, the learned trial magistrate delivered a judgment.  Having considered evidence on record, the court found the prosecution having proved the charge of attempted murder and proceeded to convict the accused.  Subsequently on 10/12/2024 a sentence was meted out.  The accused was fined Kshs.50,000/- and in default he was required to serve two (2) years imprisonment.
  4. On 03/01/2024, the court presided over by Hon. M. Osoro SRM moved suo moto and delivered a ruling thus;

“This court delivered a judgment on 09/12/2024 instead of a ruling by error.  In view of the above, the judgment is set aside suo moto and sentence also set aside.  Production order to issue for accused for 15/01/2025 before duty court and or court 1.”

  1. Upon the file being placed before Hon. W. Wang’ang’a PM, it was allocated to Hon. M.W. Njuguna SRM who complied with Section 200(3) of the Criminal Procedure Code.  Later on the accused’s bond was reinstated.
  2. Supervisory jurisdiction of the High Court over subordinate courts is an important principle as it ensures review /revision of decisions and processes of the lower court which are irregular so as to ensure justice prevails. The jurisdiction is provided for by the Constitution and statute.
  3. Article 165(6)(7) of the constitution provides thus:

(6) The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.

(7) For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.

  1. Section 362 of the Criminal Procedure Code (CPC) stipulates thus:

The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.

  1. A court of law is prohibited from reviewing its own judgment or final order except to correct clerical or arithmetic error. Acting contrary to the law would be tantamount to re-opening the case, a jurisdiction that is a reserved for the superior court.
  2. The procedure of trial in subordinate courts is provided for in the criminal procedure code. Where an accused has to be acquitted after close of the prosecution case, Section 210 of the CPC becomes operational, It enacts thus:

If at the close of the evidence in support of the charge, and after hearing such summing up, submission or argument as the prosecutor and the accused person or his advocate may wish to put forward, it appears to the court that a case is not made out against the accused person sufficiently to require him to make a defence, the court shall dismiss the case and shall forthwith acquit him.

  1. At this stage, the court is entitled to make a Ruling as it would be a decision on whether or not the accused has a case to answer. The learned trial magistrate however deviated from the laid down procedure and reached a formal/final decision that concluded the case. To reach a conclusive determination the accused should have been heard. Section 211 of the CPC provides:
  2. At the close of the evidence in support of the charge, and after hearing such summing up, submission or argument as may be put forward, if it appears to the court that a case is made out against the accused person sufficiently to require him to make a defence, the court shall again explain the substance of the charge to the accused, and shall inform him that he has a right to give evidence on oath from the witness box, and that, if he does so, he will be liable to cross-examination, or to make a statement not on oath from the dock, and shall ask him whether he has any witnesses to examine or other evidence to adduce in his defence, and the court shall then hear the accused and his witnesses and other evidence (if any).
  3. In the judgment delivered, the accused was convicted and consequently sentenced. The right to fair hearing requires an accused to be heard by presenting his case prior to being penalized. Rights of an accused person must be safeguarded to ensure proper application of the law. This is stipulated in Section 215 of the Penal Code as follows:

The court having heard both the complainant and the accused person and their witnesses and evidence shall either convict the accused and pass sentence upon or make an order against him according to law, or shall acquit him. (Emphasis added).

  1. At the outset the trial court failed to comply with the laid down procedure. Secondly it acted by setting aside a judgment delivered.  In Firestone South Africa (Pty) Ltd v Genticuro AG 1970 AD (4) SA 298 (A) at 306 F – G the court stated as follows:

“The general principle, now established in our law is that once a Court has duly pronounced a final judgment or order, it has itself no authority to correct, alter or supplement it. The reason is that it thereupon becomes functus officio: its jurisdiction in the case having been fully and finally exercised, its authority over the subject matter has ceased.”

  1. The error in issue occasioned a failure of justice, which was manifested in the wrongful conviction, which was based on the prosecution case without the defence of the accused. The order of the court was improper, illegal, and incorrect, an irregularity that must be corrected.
  2. The upshot of the above is that I call to this court the conviction and sentence passed by the trial court, which I quash and set aside. The file shall be returned to the lower court with a view of the court continuing with the matter from the point it had reached before the impugned judgment was pronounced.
  3. It is so ordered,


    JOSEPH WAIGWA WAWERU VS REPUBLIC JOSEPH WAIGWA WAWERU VS REPUBLIC