REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KWALE
HIGH COURT CRIMINAL REVISION NO. E044 OF 2026
(Coram: Andayi W. F., J.)
REVISION APPLICATION BY THE DPP ARISING FROM
MSAMBWENI MAGISTRATE’S COURT CRIMINAL CASE NO. E158 OF 2025
REPUBLIC..................................................................................................THROUGH THE DPP
VERSUS
SULEIMAN RASHID MWADZOGOLO.........................................1 ST ACCUSED PERSON
MWALIMU RASHID MWADZOGOLO........................................2 ND ACCUSED PERSON
IBRAHIM RASHID MWADZOGOLO............................................3 RD ACCUSED PERSON
R U L I N G
1. The Director of Public Prosecutions (DPP) has approached this court by way of a letter dated 15 th May 2026 with, ostensibly an application for revision of the ruling in Msambweni Magistrates Court Criminal Case No. E158 of 2025 seeking this court to exercise its revisionary jurisdiction under article 165(6) and (7) of the constitution, as read with sections 362 and 365 of the Criminal Procedure Code (Cap. 75) Laws of Kenya (CPC). The letter reached this court for action on 23 rd July 2026.
2. The application is for this court to satisfy itself as to the correctness, legality or propriety of the ruling or order issued by the magistrate’s court, Hon. Leah Kabaria (PM) on 13 th May 2026 declining to consider an application by the DPP to have the case facing the accused persons withdrawn under section 87(a) CPC and directing that the case be handled by the trial magistrate who was away on maternity leave at the time.
3. The application is based on grounds that:
a. The DPP has power to make an application for withdrawal under section 87(a) CPC.
b. The complainants in the matter had appeared in court and made their request formally to have the matter withdrawn after informing the court that they had settled the matter with the accused persons’ families out of court.
c. The complainants in the matter had visited the ODPP, Kwale and informed them that they wished to have the case withdrawn. They gave reasons that the complainants and the accused persons are relatives and the matter had been settled within the family through out of court meetings that culminated in the resolution of the matter and an agreement to formally withdraw the complaint.
d. Further the complainants and the accused families’ had been to the Chief’s office at Msambweni and confirmed in writing that the complainants had been compensated by the accused persons’ families and they wished to withdraw the case and continue living peacefully.
e. On 13 th May 2026, the matter came to court for mention whereat the prosecution applied before the court to withdraw the case under section 87(a) of the Criminal Procedure Code. The application was backed by an approval letter from the ODPP, Kwale. However, the learned magistrate handling the mention of the case at the time Hon. Leah Kabaria declined to handle the application for reasons that the same could only be handled by the trial court, the only other court at the station, which was on maternity leave until the month of September. According to the DPP this is prejudicial to the accused persons and amounts to a denial of the accused persons’ rights under articles 50 and 51 of the constitution.
f. The complainants had earlier made their wish to court to have the case withdrawn indicating that they had been compensated but the trial court denied their request citing the matter as involving great public interest.
g. In the circumstances, proceeding with the case will be a waste of the court’s time.
4. By way of background, there are three accused persons namely Suleiman Rashid Mwadzogolo, 1 st accused person, Mwalimu Rashid Mwadzogolo, 2 nd accused person and Ibrahim Rashid Mwadzogolo, 3 rd accused person who are charged before the magistrate’s court at Msambweni with two counts of robbery with violence contrary to section 295 as read with section 296(2) of the Penal Code (Cap. 63) Laws of Kenya as follows:
a. Count 1
On the 29 th day of June 2025 at around 10:00 Hours at Bomani trading centre in Msambweni location of Kwale County within Coast Region, jointly with others not before court robbed Ali Said Kitsongo of his mobile phone make Samsung Galaxy AO6 valued at KShs 30,000/=, cash KShs 1,000/= and a motor cycle registration No. KMGH 596Q make Haojin, black in colour, valued at KShs 125,000/= belonging to Dago Maalimu Khamisi that came to his possession as a servant and immediately before the time of such robbery wounded the said Ali Rashid Kitsongo.
b. Count 2
On the 29 th day of June 2025 at around 10:00 Hours at Bomani trading centre in Msambweni location of Kwale County within Coast Region, jointly with others not before court robbed Rama Suleiman Kama of cash KShs 1,000/= and immediately before the time of such robbery wounded the said Rama Suleiman Kama.
5. I have considered the proceedings in the trial court file and in summary I note a few issues with regard thereto. The charge sheet shows the accused persons were arrested on 8 th July 2025 and presented to court on 9 th July 2025 for plea taking. The trial court, Hon. Onalo, J. K. Olga recorded what I would find to be incomplete proceedings. She only noted the presence of the 3 rd subject, a minor and not the 1 st and 2 nd accused persons. She then remarked that the 3 rd subject, minor was a boy who then said he was 15 years old and the learned prosecution counsel applied for deferment of plea. The court directed that plea be deferred and an age assessment for the 3 rd subject, minor be conducted and an advocate be appointed for him. The case was fixed for mention the following day, 10 th July 2025.
6. I have seen a note from Msambweni County Referral hospital dated 9 th July 2025. It is a standard typed note in which the date, name and estimated age of the subject is indicated as approximately 17 years. It would appear that an advocate had not yet been appointed for the subject and therefore the case was deferred for plea taking to 14 th July 2025 and the court ordered that the subject be remanded at Likoni Childrens’ Home.
7. When the case came up on 10 th July 2025, it appears that no advocate had been appointed for the minor subject and plea was once again deferred to 14 th July 2025. On that date Ms Adhiambo, learned counsel appeared for the minor subject. Before plea was taken the learned prosecution counsel informed the court that the investigating officer was present in court with information that the complainants and the accused persons were family members and they wished to withdraw the charges. The investigating officer Police Seargent Arnold Karisa of Msambweni police station was present and confirmed the same to the court. He also informed the court that the complaints were present in court to confirm the information.
8. Each of the accused persons was asked about the issue and he confirmed that the complainants were his friends. The 2 nd accused person added that they were not his family members. The investigating officer then informed the court that he had received the information from parents from both sides. The court then called for a social inquiry report. The court ordered the release of the 3 rd subject, the minor to his parents upon application by learned counsel who informed the court that the subject was in school in Grade 9.
9. Social inquiry reports were filed in court by different probation officers in respect of each the three accused persons. The 1 st and 2 nd accused persons were in their respective reports indicated to be 19 and 23 years’ old. The social inquiry reports were favourable in each case indicating that the complaints had unequivocally stated their wishes to have the cases withdrawn from court as they were relatives of the accused persons. There were some negative sentiments made in the reports in respect of the 1 st and 2 nd accused persons as being associated with a group of wayward youths in the area which however were unsubstantiated. The minor, the 3 rd subject was said to have no such association and was confirmed to be a grade 9 pupil in school.
10. The trial court, on 10 th September 2025, delivered a ruling on the complainants’ request to have the case withdrawn and declined the same citing what it considered contradictions in the statements of the accused persons and those of the complainant’s as expressed in the reports on their relations as to whether they were family friends or relatives. The trial court also picked out the issue of the 1 st and 2 nd accused persons having been stated to be notorious youths associated with a suspicious group in the area. The court unfortunately appears to have taken in such unsubstantiated sentiments so seriously that it referred to the two as delinquent. The trial court also observed that there were notorious incidents of youthful persons in the area referred to as “panga boys” randomly attacking and terrorizing residents. The trial court therefore directed that the case proceeds for hearing.
11. Plea was thus taken on 17 th September 2025. The 1 st and 2 nd accused persons were granted bond of KShs 200,000/= each and the 3 rd subjects release on personal or free bond was confirmed. The bond for the 1 st and 2 nd accused persons was subsequently reviewed to KShs 150,000/= on 8 th December 2025. On 19 th January 2026, a surety for the 2 nd accused person Mwalimu Rashid Mwadzogolo was approved for his release from custody.
12. A few issues in relation to subsequent proceedings have been observed by this court.
13. On 4 th February 2026, the court, differently constituted, as appears from the handwriting of proceedings, declined to approve a surety for the 1 st accused person on grounds that he held the land offered as security for bond in trust and had not shown authority to deal with the same as his own. On 23 rd February 2026 when the case was coming up for hearing, the prosecution counsel informed the court that they were expecting the investigating officer and the doctor but the investigating officer had other duties in Mombasa. As such there were no witnesses in court. The prosecutor applied for summons to the OCS Msambweni police station.
14. The 1 st accused person, who was still in custody, on his part, perhaps in a bid to secure his release, informed the court that the complainant had left to an unknown place. The trial court issued summons to the OCS Msambweni police station and directed further that that no orders shall issue on the issue of bond due to what the court indicated that it had noted that the complainants’ purportedly being friends and relatives of the accused persons’ had refused to come to court for hearing for the matter to proceed and owing to the rise of robbery with violence in the County.
15. There is no indication from the court from where it had got that information from yet it was made to affect an accused person’s right to be released on bond. In fact, from what the court prosecutor had informed the court, there was no indication that the complainants had been bonded to attend court. That was an irregularity in the proceedings.
16. On 18 th March 2026, the trial court, once again declined to approve a surety for the 1 st accused person for what it termed possible interference with witnesses. It directed that the witnesses who were said to be friends and relatives of the accused persons be made available to testify first.
17. The hearing took off on 23 rd March 2026 but without counsel for the 3 rd subject minor being present. The first witness, a complaint was reluctant to testify insisting that he did not wish to proceed with the case against the accused persons as they had settled the matter. The trial court found him to be in contempt of court and ordered that he be detained for two weeks. Later in the day, he agreed to testify and his evidence was taken after that of the other complainant. After each of them had testified the court reserved cross-examination for the 3 rd subject minor due to absence of his advocate.
18. At the next hearing on 17 th April 2026 the accused persons were all recorded to be absent but learned counsel for the 3 rd subject minor was present. There are no proceedings showing the reason for the absence. The case was fixed for hearing on 29 th April 2026.
19. It would appear that from 29 th April 2026, a different magistrate, Hon. L. W. Kabaria handled the matter indicating that the trial court was indisposed, perhaps having proceeded on maternity leave as indicated by the letter by the DPP to this court seeking revision because the matter was then fixed for hearing on 26 th October 2026. On the 29 th April 2026 the 1 st accused person asked for the court to reinstate his bond terms. The presiding magistrate referred to the trial court’s remarks of 18 th March 2026 and stated that the trial court had delivered a ruling on the issue and that the 1 st accused person had a right of appeal.
20. On 13 th May 2026 when the matter came up for mention, the 1 st and 2 nd accused persons were present but the 3 rd subject, the minor and his counsel were absent. The learned prosecution counsel informed the court that she had a letter from his in-charge to apply for withdrawal. The learned presiding magistrate Hon. Kabaria directed that the issue be handled by the trial court and that the accused persons make haste to meet the bond terms. That order is the subject of the revision application by the DPP herein.
21. On the issue of the 1 st accused person asking for reinstatement of bond, it would appear that the presiding magistrate did not recall her earlier remarks that the trial court had issued directions on the issue of bond on 18 th March 2026 which effectively were that the same would not be considered until the complainants testified. They had indeed testified and been cross-examined by the 1 st and 2 nd accused persons but for reasons not of their own, cross-examination for the 3 rd subject, minor was not had and it remains pending. This meant the 1 st accused person would remain in custody without the option of being released on bond, not for any reason of his own but what he could not comprehend. That again was not a correct approach to the issue by both the trial court.
22. There were no submissions made on both applications. Under section 365 CPC, the court is not obliged to hear the parties on an application for revision (see the case of Joseph Nduvi Mbuvi v Republic [2019] KEHC 9895 (KLR) ). However, this court is aware that in order to actualize the right to a fair trial enshrined in article 50 of the constitution each party should be accorded a fair opportunity to present or defend its case. The learned prosecution counsel for the DPP herein said she would rely on the contents of the letter as filed while the accused persons said they also supported the contents of that letter and had nothing more to add.
23. The issue, the subject of this application arises from the magistrate’s court’s decision declining to take up the request by the prosecution to terminate the proceedings, the court indicating that such an application be heard and determined by the trial court.
24. I have considered the application and I find the issues for determination to be:
a. Whether in its order of 13 th May 2026 the lower court was correct in declining to take up the application for withdrawal of the matter and directing that the same awaits the trial court that was at the time on maternity leave.
b. Whether there is any incorrectness, illegality, or impropriety of any finding, sentence, or order recorded or passed, or irregularity of any proceedings of the lower court herein.
25. Article 165(6) and (7) of the constitution under which this application is brought provides as follows:
(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.
26. In furtherance of the constitutional edict, section 362 of the Criminal Procedure Code (Cap. 75) Laws of Kenya enables the High Court to:
“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 such subordinate court.”
27. Section 364 CPC further provides for the powers of the High Court on revision thus:
(1) In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may—
(a) …
(b) in the case of any other order other than an order of acquittal, alter or reverse the order.
(c) …
28. In the case of Republic v Mutungei [2017] KEHC 7170 (KLR) the High Court in explaining the ambit of section 362 CPC held that:
“the function of the court under section 362 of the Criminal Procedure Code as read with section 364 is to enable the court to scrutinize and examine the correctness of facts of a subordinate court or tribunal so as to make a finding on legality or propriety. Legality means lawfulness, strict adherence to law, correctness and propriety ordinarily having the same meaning. It can be deduced from this evaluation that the jurisdiction on revision will be invoked where there is a decision by a subordinate court, the decision is not subject of appeal, the grounds of revision must exist against the decision being challenged from the subordinate court. The interference under section 362 by this court on revision can only be justified if the impugned decision is grossly erroneous, to justness appropriateness and suitability to trial. The trial magistrate has not complied with the provisions of the law, the findings made and the decision reached failed to take into account the evidence that there was a misdirection of facts on the face of the record, the parties in the case were not heard or given an opportunity to present the case before the decision or the decision being contested by the aggrieved party was arbitrary amounting to abuse of the court process.”
29. This court’s mandate on revision as provided for in the above sections of the CPC is to peruse the record with a view to satisfying itself as to the correctness, legality or propriety of the findings, sentence or order recorded and as to the regularity of the proceedings.
30. I will start with the subject of the DPP’s application for revision being the refusal by the presiding magistrate to consider the application for withdrawal of the charges under section 87(a) CPC on 13 th May 2026. The case had come before a different magistrate presiding over the court on that day for purposes of a mention as the trial court was away on maternity leave.
31. The powers of the DPP to discontinue criminal proceedings is provided for under article 157(6) of the constitution subject to the court granting permission under article 157(8) of the constitution. Article 157(11) provides that in exercising the powers the DPP shall have regard to the public interests, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process. No doubt, each of these limitations has wide parameters. Therefore, where an application to discontinue the charges is made by the DPP and the court is of opinion that it is inimical to the criteria set out in the constitution, the court can decline consent to discontinue the charges.
32. In the present case, that was not the consideration. The learned presiding magistrate directed that the application be handled by the trial magistrate who was on leave. It would appear that the presiding magistrate felt that she had her hands tied by the earlier orders and directions of the trial court because upsetting them would have been tantamount to sitting on her colleague’s appeal, which she must have felt, correctly in my view, that it was not appropriate since the case was partly heard before a different court. For that reason, I find no impropriety, incorrectness or illegality in that direction or any irregularity in the proceedings of 13 th May 2026.
33. To the extent that the application herein is based on the lower court’s decision of 13 th May 2026, I find that the same has no merit.
34. Had this been an appeal, the issue would have been confined to the decision made by the presiding magistrate of the lower court made on 13 th May 2026 and that would have been the end of the application. However, the proceedings before the lower court having been brought to the attention of this court in its supervisory jurisdiction through a revision application, this court is bound to and has to consider the corpus of the proceedings before the lower court from beginning to end to satisfy itself of the correctness, legality, or propriety of any finding, sentence, or order recorded or passed, and as to the regularity of the proceedings.
35. In an earlier application by the complainants to have the case withdrawn on grounds that the parties had settled the matter, the trial court declined the same citing public interest in the matter as the reason for declining the application. The learned trial magistrate remarked that cases of groups of youth terrorizing members of the public were rampant within the County.
36. The Black`s Law Dictionary 9 th Edition defines public interest as:
“…the general welfare of the public that warrants recognition and protection, something in which the public as a whole has stakes, especially that justifies Governmental regulation”.
37. I have no doubt that issues of the security of members of the community threatened by rampant incidents of crime transcend the personal interests of the parties involved in a case. When the trial court made that decision, the DPP did not challenge the decision either through an application for revision or through an appeal. The court directed that the case should proceed for hearing and indeed on a subsequent date the prosecution presented the two complainants in the case and they testified albeit after the first one had shown some reluctance to do so.
38. It means the DPP had no problem with the decision by the trial court declining to have the matter withdrawn by the complainants. Having found so, the question is, should this court allow the trial court to proceed with the hearing of the case as scheduled on 26 th October 2026?
39. I have pointed out above irregularities in the proceedings before the trial court. Further, the charges of robbery with violence facing the accused persons carry a capital sentence. That in itself makes them serious charges that require legal representation for all the accused persons and not just the minor subject. Article 50(2)(h) of the constitution provides with respect to legal representation that:
“Every accused person has the right to a fair trial, which includes the right … to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly …”
40. Furthermore, section 43 of the Legal Aid Act (Cap. 16A) Laws of Kenya provides that:
(1) A Court before which an unrepresented accused person is presented shall
(a) promptly inform the accused of his or her right to legal representation;
(b) If substantial injustice is likely to result, promptly inform the accused of the right to have an advocate assigned to him or her;
...
(6) Despite the provisions of this Section, lack of legal representation shall not be a bar to the continuation of proceedings against a person.
41. In the case of Republic v Chengo & 2 others [2017] KESC 15 (KLR) , the Supreme Court considering the ambit of this right stated thus:
“While it is therefore undeniable that a person facing a death penalty and who cannot afford legal representation is likely to suffer substantial injustice during his trial; the protection embedded in article 50 (2) (h) goes beyond capital offence trials. The Court of Appeal indeed appears to have embraced this reasoning in a recent decision in Thomas Alugha Ndegwa v. Republic ; C.A No. 2 of 2004, when it allowed an application for legal representation by the appellant who had been convicted of defilement and sentenced to life imprisonment.”
42. In my understanding, the Supreme Court said that a person facing a death penalty and who cannot afford legal representation is likely to suffer substantial injustice during his trial and therefore requires legal representation at State expense even though the failure to do so may not automatically vitiate the proceedings unless it is shown that indeed substantial injustice was suffered as a result of the failure to provide the legal representation.
43. The Supreme Court went on to hold with regard to the issue of substantial justice being likely to result that:
“... it is clear that with regard to criminal matters, in determining whether substantial injustice will be suffered, a Court ought to consider, in addition to the relevant provisions of the Legal Aid Act, various other factors which include:
(i) the seriousness of the offence;
(ii) the severity of the sentence;
(iii) the ability of the accused person to pay for his own legal representation;
(iv) whether the accused is a minor;
(v) the literacy of the accused;
(vi) the complexity of the charge against the accused.”
44. The charges the accused persons are facing are serious and the sentence is severe. This fits the criteria of cases requiring legal representation at State expense.
45. As provided for under article 50(2)(h) of the constitution and the Legal Aid Act, it should be standard practice in every criminal trial for the accused person to be informed, at the onset, of his right to legal representation as held by the Court of Appeal in the case of William Oongo Arunda (Hitherto referred to as Patrick Oduor Ochieng) v Republic [2022] KECA 23 (KLR) . In the present case, the accused persons were not informed of that right in spite of the serious charges of robbery with violence facing them as well as the severity of the sentence of death prescribed for the offence. I find that to have been an incorrect approach to the case by the trial court that calls for correction by this court.
46. I have pointed out other irregularities in the proceedings before the trial court. For those reasons, I find that the proceedings before the trial court have ben vitiated and therefore have to be and are hereby set aside and fresh proceedings ordered to be undertaken, starting with plea taking, with an advocate(s) for all the accused persons appointed at State expense before a different magistrate other than Hon. Olga Onalo. The court should also proceed to consider and approve the surety for the 1 st accused person to be released on bond at the earliest.
47. Mention before the head of station at Msambweni Law Courts on 1 st September 2026 for appropriate directions on the hearing of the case.
48. Orders accordingly.
Ruling delivered , dated and signed on Virtual Platform, Teams this 24 th day of August 2026
HON. ANDAYI W. F.
JUDGE
This ruling is posted on the Court Case Tracking System for immediate availability to the applicant and a certified hard copy to be provided to the applicant through the Kwale prison authorities.
Vallerie for DPP.
Ummu: Court assistant.
HON. ANDAYI W. F.
JUDGE
HC. Cr. Rev. No. E044 of 2026 17 Revision-s. 87(a) Withdrawal of Charges
IN THE HIGH COURT OF KENYA AT KWALE
HIGH COURT CRIMINAL REVISION NO. E044 OF 2026
(Coram: Andayi W. F., J.)
REVISION APPLICATION BY THE DPP ARISING FROM
MSAMBWENI MAGISTRATE’S COURT CRIMINAL CASE NO. E158 OF 2025
REPUBLIC..................................................................................................THROUGH THE DPP
VERSUS
SULEIMAN RASHID MWADZOGOLO.........................................1 ST ACCUSED PERSON
MWALIMU RASHID MWADZOGOLO........................................2 ND ACCUSED PERSON
IBRAHIM RASHID MWADZOGOLO............................................3 RD ACCUSED PERSON
R U L I N G
1. The Director of Public Prosecutions (DPP) has approached this court by way of a letter dated 15 th May 2026 with, ostensibly an application for revision of the ruling in Msambweni Magistrates Court Criminal Case No. E158 of 2025 seeking this court to exercise its revisionary jurisdiction under article 165(6) and (7) of the constitution, as read with sections 362 and 365 of the Criminal Procedure Code (Cap. 75) Laws of Kenya (CPC). The letter reached this court for action on 23 rd July 2026.
2. The application is for this court to satisfy itself as to the correctness, legality or propriety of the ruling or order issued by the magistrate’s court, Hon. Leah Kabaria (PM) on 13 th May 2026 declining to consider an application by the DPP to have the case facing the accused persons withdrawn under section 87(a) CPC and directing that the case be handled by the trial magistrate who was away on maternity leave at the time.
3. The application is based on grounds that:
a. The DPP has power to make an application for withdrawal under section 87(a) CPC.
b. The complainants in the matter had appeared in court and made their request formally to have the matter withdrawn after informing the court that they had settled the matter with the accused persons’ families out of court.
c. The complainants in the matter had visited the ODPP, Kwale and informed them that they wished to have the case withdrawn. They gave reasons that the complainants and the accused persons are relatives and the matter had been settled within the family through out of court meetings that culminated in the resolution of the matter and an agreement to formally withdraw the complaint.
d. Further the complainants and the accused families’ had been to the Chief’s office at Msambweni and confirmed in writing that the complainants had been compensated by the accused persons’ families and they wished to withdraw the case and continue living peacefully.
e. On 13 th May 2026, the matter came to court for mention whereat the prosecution applied before the court to withdraw the case under section 87(a) of the Criminal Procedure Code. The application was backed by an approval letter from the ODPP, Kwale. However, the learned magistrate handling the mention of the case at the time Hon. Leah Kabaria declined to handle the application for reasons that the same could only be handled by the trial court, the only other court at the station, which was on maternity leave until the month of September. According to the DPP this is prejudicial to the accused persons and amounts to a denial of the accused persons’ rights under articles 50 and 51 of the constitution.
f. The complainants had earlier made their wish to court to have the case withdrawn indicating that they had been compensated but the trial court denied their request citing the matter as involving great public interest.
g. In the circumstances, proceeding with the case will be a waste of the court’s time.
4. By way of background, there are three accused persons namely Suleiman Rashid Mwadzogolo, 1 st accused person, Mwalimu Rashid Mwadzogolo, 2 nd accused person and Ibrahim Rashid Mwadzogolo, 3 rd accused person who are charged before the magistrate’s court at Msambweni with two counts of robbery with violence contrary to section 295 as read with section 296(2) of the Penal Code (Cap. 63) Laws of Kenya as follows:
a. Count 1
On the 29 th day of June 2025 at around 10:00 Hours at Bomani trading centre in Msambweni location of Kwale County within Coast Region, jointly with others not before court robbed Ali Said Kitsongo of his mobile phone make Samsung Galaxy AO6 valued at KShs 30,000/=, cash KShs 1,000/= and a motor cycle registration No. KMGH 596Q make Haojin, black in colour, valued at KShs 125,000/= belonging to Dago Maalimu Khamisi that came to his possession as a servant and immediately before the time of such robbery wounded the said Ali Rashid Kitsongo.
b. Count 2
On the 29 th day of June 2025 at around 10:00 Hours at Bomani trading centre in Msambweni location of Kwale County within Coast Region, jointly with others not before court robbed Rama Suleiman Kama of cash KShs 1,000/= and immediately before the time of such robbery wounded the said Rama Suleiman Kama.
5. I have considered the proceedings in the trial court file and in summary I note a few issues with regard thereto. The charge sheet shows the accused persons were arrested on 8 th July 2025 and presented to court on 9 th July 2025 for plea taking. The trial court, Hon. Onalo, J. K. Olga recorded what I would find to be incomplete proceedings. She only noted the presence of the 3 rd subject, a minor and not the 1 st and 2 nd accused persons. She then remarked that the 3 rd subject, minor was a boy who then said he was 15 years old and the learned prosecution counsel applied for deferment of plea. The court directed that plea be deferred and an age assessment for the 3 rd subject, minor be conducted and an advocate be appointed for him. The case was fixed for mention the following day, 10 th July 2025.
6. I have seen a note from Msambweni County Referral hospital dated 9 th July 2025. It is a standard typed note in which the date, name and estimated age of the subject is indicated as approximately 17 years. It would appear that an advocate had not yet been appointed for the subject and therefore the case was deferred for plea taking to 14 th July 2025 and the court ordered that the subject be remanded at Likoni Childrens’ Home.
7. When the case came up on 10 th July 2025, it appears that no advocate had been appointed for the minor subject and plea was once again deferred to 14 th July 2025. On that date Ms Adhiambo, learned counsel appeared for the minor subject. Before plea was taken the learned prosecution counsel informed the court that the investigating officer was present in court with information that the complainants and the accused persons were family members and they wished to withdraw the charges. The investigating officer Police Seargent Arnold Karisa of Msambweni police station was present and confirmed the same to the court. He also informed the court that the complaints were present in court to confirm the information.
8. Each of the accused persons was asked about the issue and he confirmed that the complainants were his friends. The 2 nd accused person added that they were not his family members. The investigating officer then informed the court that he had received the information from parents from both sides. The court then called for a social inquiry report. The court ordered the release of the 3 rd subject, the minor to his parents upon application by learned counsel who informed the court that the subject was in school in Grade 9.
9. Social inquiry reports were filed in court by different probation officers in respect of each the three accused persons. The 1 st and 2 nd accused persons were in their respective reports indicated to be 19 and 23 years’ old. The social inquiry reports were favourable in each case indicating that the complaints had unequivocally stated their wishes to have the cases withdrawn from court as they were relatives of the accused persons. There were some negative sentiments made in the reports in respect of the 1 st and 2 nd accused persons as being associated with a group of wayward youths in the area which however were unsubstantiated. The minor, the 3 rd subject was said to have no such association and was confirmed to be a grade 9 pupil in school.
10. The trial court, on 10 th September 2025, delivered a ruling on the complainants’ request to have the case withdrawn and declined the same citing what it considered contradictions in the statements of the accused persons and those of the complainant’s as expressed in the reports on their relations as to whether they were family friends or relatives. The trial court also picked out the issue of the 1 st and 2 nd accused persons having been stated to be notorious youths associated with a suspicious group in the area. The court unfortunately appears to have taken in such unsubstantiated sentiments so seriously that it referred to the two as delinquent. The trial court also observed that there were notorious incidents of youthful persons in the area referred to as “panga boys” randomly attacking and terrorizing residents. The trial court therefore directed that the case proceeds for hearing.
11. Plea was thus taken on 17 th September 2025. The 1 st and 2 nd accused persons were granted bond of KShs 200,000/= each and the 3 rd subjects release on personal or free bond was confirmed. The bond for the 1 st and 2 nd accused persons was subsequently reviewed to KShs 150,000/= on 8 th December 2025. On 19 th January 2026, a surety for the 2 nd accused person Mwalimu Rashid Mwadzogolo was approved for his release from custody.
12. A few issues in relation to subsequent proceedings have been observed by this court.
13. On 4 th February 2026, the court, differently constituted, as appears from the handwriting of proceedings, declined to approve a surety for the 1 st accused person on grounds that he held the land offered as security for bond in trust and had not shown authority to deal with the same as his own. On 23 rd February 2026 when the case was coming up for hearing, the prosecution counsel informed the court that they were expecting the investigating officer and the doctor but the investigating officer had other duties in Mombasa. As such there were no witnesses in court. The prosecutor applied for summons to the OCS Msambweni police station.
14. The 1 st accused person, who was still in custody, on his part, perhaps in a bid to secure his release, informed the court that the complainant had left to an unknown place. The trial court issued summons to the OCS Msambweni police station and directed further that that no orders shall issue on the issue of bond due to what the court indicated that it had noted that the complainants’ purportedly being friends and relatives of the accused persons’ had refused to come to court for hearing for the matter to proceed and owing to the rise of robbery with violence in the County.
15. There is no indication from the court from where it had got that information from yet it was made to affect an accused person’s right to be released on bond. In fact, from what the court prosecutor had informed the court, there was no indication that the complainants had been bonded to attend court. That was an irregularity in the proceedings.
16. On 18 th March 2026, the trial court, once again declined to approve a surety for the 1 st accused person for what it termed possible interference with witnesses. It directed that the witnesses who were said to be friends and relatives of the accused persons be made available to testify first.
17. The hearing took off on 23 rd March 2026 but without counsel for the 3 rd subject minor being present. The first witness, a complaint was reluctant to testify insisting that he did not wish to proceed with the case against the accused persons as they had settled the matter. The trial court found him to be in contempt of court and ordered that he be detained for two weeks. Later in the day, he agreed to testify and his evidence was taken after that of the other complainant. After each of them had testified the court reserved cross-examination for the 3 rd subject minor due to absence of his advocate.
18. At the next hearing on 17 th April 2026 the accused persons were all recorded to be absent but learned counsel for the 3 rd subject minor was present. There are no proceedings showing the reason for the absence. The case was fixed for hearing on 29 th April 2026.
19. It would appear that from 29 th April 2026, a different magistrate, Hon. L. W. Kabaria handled the matter indicating that the trial court was indisposed, perhaps having proceeded on maternity leave as indicated by the letter by the DPP to this court seeking revision because the matter was then fixed for hearing on 26 th October 2026. On the 29 th April 2026 the 1 st accused person asked for the court to reinstate his bond terms. The presiding magistrate referred to the trial court’s remarks of 18 th March 2026 and stated that the trial court had delivered a ruling on the issue and that the 1 st accused person had a right of appeal.
20. On 13 th May 2026 when the matter came up for mention, the 1 st and 2 nd accused persons were present but the 3 rd subject, the minor and his counsel were absent. The learned prosecution counsel informed the court that she had a letter from his in-charge to apply for withdrawal. The learned presiding magistrate Hon. Kabaria directed that the issue be handled by the trial court and that the accused persons make haste to meet the bond terms. That order is the subject of the revision application by the DPP herein.
21. On the issue of the 1 st accused person asking for reinstatement of bond, it would appear that the presiding magistrate did not recall her earlier remarks that the trial court had issued directions on the issue of bond on 18 th March 2026 which effectively were that the same would not be considered until the complainants testified. They had indeed testified and been cross-examined by the 1 st and 2 nd accused persons but for reasons not of their own, cross-examination for the 3 rd subject, minor was not had and it remains pending. This meant the 1 st accused person would remain in custody without the option of being released on bond, not for any reason of his own but what he could not comprehend. That again was not a correct approach to the issue by both the trial court.
22. There were no submissions made on both applications. Under section 365 CPC, the court is not obliged to hear the parties on an application for revision (see the case of Joseph Nduvi Mbuvi v Republic [2019] KEHC 9895 (KLR) ). However, this court is aware that in order to actualize the right to a fair trial enshrined in article 50 of the constitution each party should be accorded a fair opportunity to present or defend its case. The learned prosecution counsel for the DPP herein said she would rely on the contents of the letter as filed while the accused persons said they also supported the contents of that letter and had nothing more to add.
23. The issue, the subject of this application arises from the magistrate’s court’s decision declining to take up the request by the prosecution to terminate the proceedings, the court indicating that such an application be heard and determined by the trial court.
24. I have considered the application and I find the issues for determination to be:
a. Whether in its order of 13 th May 2026 the lower court was correct in declining to take up the application for withdrawal of the matter and directing that the same awaits the trial court that was at the time on maternity leave.
b. Whether there is any incorrectness, illegality, or impropriety of any finding, sentence, or order recorded or passed, or irregularity of any proceedings of the lower court herein.
25. Article 165(6) and (7) of the constitution under which this application is brought provides as follows:
(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.
26. In furtherance of the constitutional edict, section 362 of the Criminal Procedure Code (Cap. 75) Laws of Kenya enables the High Court to:
“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 such subordinate court.”
27. Section 364 CPC further provides for the powers of the High Court on revision thus:
(1) In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may—
(a) …
(b) in the case of any other order other than an order of acquittal, alter or reverse the order.
(c) …
28. In the case of Republic v Mutungei [2017] KEHC 7170 (KLR) the High Court in explaining the ambit of section 362 CPC held that:
“the function of the court under section 362 of the Criminal Procedure Code as read with section 364 is to enable the court to scrutinize and examine the correctness of facts of a subordinate court or tribunal so as to make a finding on legality or propriety. Legality means lawfulness, strict adherence to law, correctness and propriety ordinarily having the same meaning. It can be deduced from this evaluation that the jurisdiction on revision will be invoked where there is a decision by a subordinate court, the decision is not subject of appeal, the grounds of revision must exist against the decision being challenged from the subordinate court. The interference under section 362 by this court on revision can only be justified if the impugned decision is grossly erroneous, to justness appropriateness and suitability to trial. The trial magistrate has not complied with the provisions of the law, the findings made and the decision reached failed to take into account the evidence that there was a misdirection of facts on the face of the record, the parties in the case were not heard or given an opportunity to present the case before the decision or the decision being contested by the aggrieved party was arbitrary amounting to abuse of the court process.”
29. This court’s mandate on revision as provided for in the above sections of the CPC is to peruse the record with a view to satisfying itself as to the correctness, legality or propriety of the findings, sentence or order recorded and as to the regularity of the proceedings.
30. I will start with the subject of the DPP’s application for revision being the refusal by the presiding magistrate to consider the application for withdrawal of the charges under section 87(a) CPC on 13 th May 2026. The case had come before a different magistrate presiding over the court on that day for purposes of a mention as the trial court was away on maternity leave.
31. The powers of the DPP to discontinue criminal proceedings is provided for under article 157(6) of the constitution subject to the court granting permission under article 157(8) of the constitution. Article 157(11) provides that in exercising the powers the DPP shall have regard to the public interests, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process. No doubt, each of these limitations has wide parameters. Therefore, where an application to discontinue the charges is made by the DPP and the court is of opinion that it is inimical to the criteria set out in the constitution, the court can decline consent to discontinue the charges.
32. In the present case, that was not the consideration. The learned presiding magistrate directed that the application be handled by the trial magistrate who was on leave. It would appear that the presiding magistrate felt that she had her hands tied by the earlier orders and directions of the trial court because upsetting them would have been tantamount to sitting on her colleague’s appeal, which she must have felt, correctly in my view, that it was not appropriate since the case was partly heard before a different court. For that reason, I find no impropriety, incorrectness or illegality in that direction or any irregularity in the proceedings of 13 th May 2026.
33. To the extent that the application herein is based on the lower court’s decision of 13 th May 2026, I find that the same has no merit.
34. Had this been an appeal, the issue would have been confined to the decision made by the presiding magistrate of the lower court made on 13 th May 2026 and that would have been the end of the application. However, the proceedings before the lower court having been brought to the attention of this court in its supervisory jurisdiction through a revision application, this court is bound to and has to consider the corpus of the proceedings before the lower court from beginning to end to satisfy itself of the correctness, legality, or propriety of any finding, sentence, or order recorded or passed, and as to the regularity of the proceedings.
35. In an earlier application by the complainants to have the case withdrawn on grounds that the parties had settled the matter, the trial court declined the same citing public interest in the matter as the reason for declining the application. The learned trial magistrate remarked that cases of groups of youth terrorizing members of the public were rampant within the County.
36. The Black`s Law Dictionary 9 th Edition defines public interest as:
“…the general welfare of the public that warrants recognition and protection, something in which the public as a whole has stakes, especially that justifies Governmental regulation”.
37. I have no doubt that issues of the security of members of the community threatened by rampant incidents of crime transcend the personal interests of the parties involved in a case. When the trial court made that decision, the DPP did not challenge the decision either through an application for revision or through an appeal. The court directed that the case should proceed for hearing and indeed on a subsequent date the prosecution presented the two complainants in the case and they testified albeit after the first one had shown some reluctance to do so.
38. It means the DPP had no problem with the decision by the trial court declining to have the matter withdrawn by the complainants. Having found so, the question is, should this court allow the trial court to proceed with the hearing of the case as scheduled on 26 th October 2026?
39. I have pointed out above irregularities in the proceedings before the trial court. Further, the charges of robbery with violence facing the accused persons carry a capital sentence. That in itself makes them serious charges that require legal representation for all the accused persons and not just the minor subject. Article 50(2)(h) of the constitution provides with respect to legal representation that:
“Every accused person has the right to a fair trial, which includes the right … to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly …”
40. Furthermore, section 43 of the Legal Aid Act (Cap. 16A) Laws of Kenya provides that:
(1) A Court before which an unrepresented accused person is presented shall
(a) promptly inform the accused of his or her right to legal representation;
(b) If substantial injustice is likely to result, promptly inform the accused of the right to have an advocate assigned to him or her;
...
(6) Despite the provisions of this Section, lack of legal representation shall not be a bar to the continuation of proceedings against a person.
41. In the case of Republic v Chengo & 2 others [2017] KESC 15 (KLR) , the Supreme Court considering the ambit of this right stated thus:
“While it is therefore undeniable that a person facing a death penalty and who cannot afford legal representation is likely to suffer substantial injustice during his trial; the protection embedded in article 50 (2) (h) goes beyond capital offence trials. The Court of Appeal indeed appears to have embraced this reasoning in a recent decision in Thomas Alugha Ndegwa v. Republic ; C.A No. 2 of 2004, when it allowed an application for legal representation by the appellant who had been convicted of defilement and sentenced to life imprisonment.”
42. In my understanding, the Supreme Court said that a person facing a death penalty and who cannot afford legal representation is likely to suffer substantial injustice during his trial and therefore requires legal representation at State expense even though the failure to do so may not automatically vitiate the proceedings unless it is shown that indeed substantial injustice was suffered as a result of the failure to provide the legal representation.
43. The Supreme Court went on to hold with regard to the issue of substantial justice being likely to result that:
“... it is clear that with regard to criminal matters, in determining whether substantial injustice will be suffered, a Court ought to consider, in addition to the relevant provisions of the Legal Aid Act, various other factors which include:
(i) the seriousness of the offence;
(ii) the severity of the sentence;
(iii) the ability of the accused person to pay for his own legal representation;
(iv) whether the accused is a minor;
(v) the literacy of the accused;
(vi) the complexity of the charge against the accused.”
44. The charges the accused persons are facing are serious and the sentence is severe. This fits the criteria of cases requiring legal representation at State expense.
45. As provided for under article 50(2)(h) of the constitution and the Legal Aid Act, it should be standard practice in every criminal trial for the accused person to be informed, at the onset, of his right to legal representation as held by the Court of Appeal in the case of William Oongo Arunda (Hitherto referred to as Patrick Oduor Ochieng) v Republic [2022] KECA 23 (KLR) . In the present case, the accused persons were not informed of that right in spite of the serious charges of robbery with violence facing them as well as the severity of the sentence of death prescribed for the offence. I find that to have been an incorrect approach to the case by the trial court that calls for correction by this court.
46. I have pointed out other irregularities in the proceedings before the trial court. For those reasons, I find that the proceedings before the trial court have ben vitiated and therefore have to be and are hereby set aside and fresh proceedings ordered to be undertaken, starting with plea taking, with an advocate(s) for all the accused persons appointed at State expense before a different magistrate other than Hon. Olga Onalo. The court should also proceed to consider and approve the surety for the 1 st accused person to be released on bond at the earliest.
47. Mention before the head of station at Msambweni Law Courts on 1 st September 2026 for appropriate directions on the hearing of the case.
48. Orders accordingly.
Ruling delivered , dated and signed on Virtual Platform, Teams this 24 th day of August 2026
HON. ANDAYI W. F.
JUDGE
This ruling is posted on the Court Case Tracking System for immediate availability to the applicant and a certified hard copy to be provided to the applicant through the Kwale prison authorities.
Vallerie for DPP.
Ummu: Court assistant.
HON. ANDAYI W. F.
JUDGE
HC. Cr. Rev. No. E044 of 2026 17 Revision-s. 87(a) Withdrawal of Charges