RULING
1. This matter emanates from Ogembo Chief Magistrates Court vide orders dated 24th February 2026 issued by Hon. S.K. Ngetich, Senior Principal Magistrate, directing that the file be placed before me for revision.
2. The record shows that on 30th June 2025 , Hon. P. Biwott Chief Magistrate delivered a ruling on case to answer and purported to place the accused on his defence under Section 306(2) of the Criminal Procedure Code . It is important to note that Section 306(2) CPC applies to High Court proceedings . In subordinate courts, the correct provision under which an accused is placed on his defence is Section 211 CPC .
3. Subsequently, the learned prosecutor applied that the defence case be closed. The trial court proceeded to close the defence case without hearing the accused, and thereafter sentenced him to five (5) years’ imprisonment in absentia for the offence of robbery with violence .
4. This was a fundamental error in procedure. Sentencing an accused before his defence is heard violates the right to a fair trial under Article 50 of the Constitution and contravenes the mandatory provisions of Section 211 CPC. The accused was denied an opportunity to be heard, which occasioned a miscarriage of justice.
5. The trial court erred in invoking Section 306(2) CPC, which is inapplicable to subordinate courts. The proper section is 211 CPC.
6. Section 362 of the Criminal Procedure Code empowers the High Court to calls of on its own motion or upon being moved by a party of an examine the records of the lower court to consider correctness, legality or propriety of any finding or sentence of that court .
7. The defence case was unlawfully closed at the instance of the prosecution, contrary to law.
8. The conviction and sentence imposed without hearing the defence are irregular and unlawful.
9. The accused’s constitutional right to a fair trial under Article 50 was violated.
ORDER
Accordingly, I hereby:
• Quash the conviction and sentence of five (5) years’ imprisonment imposed upon the accused under Section 364 CPC
• Proceed to substitute the said orders with orders remitting the matter back to the Chief Magistrates Court at Ogembo for compliance with issuing directions under the provisions of section 211 CPC on election of mode of defence or exercise of the right to remain silent.
• Direct that the accused be produced before the trial court on 5.3.26 at 9.00am for directions
• Copy of this ruling be served upon Hon P. Biwott.
It is so ordered.
DELIVERED VIA CTS
HON. T.A ODERA JUDGE
1.3.26
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1. This matter emanates from Ogembo Chief Magistrates Court vide orders dated 24th February 2026 issued by Hon. S.K. Ngetich, Senior Principal Magistrate, directing that the file be placed before me for revision.
2. The record shows that on 30th June 2025 , Hon. P. Biwott Chief Magistrate delivered a ruling on case to answer and purported to place the accused on his defence under Section 306(2) of the Criminal Procedure Code . It is important to note that Section 306(2) CPC applies to High Court proceedings . In subordinate courts, the correct provision under which an accused is placed on his defence is Section 211 CPC .
3. Subsequently, the learned prosecutor applied that the defence case be closed. The trial court proceeded to close the defence case without hearing the accused, and thereafter sentenced him to five (5) years’ imprisonment in absentia for the offence of robbery with violence .
4. This was a fundamental error in procedure. Sentencing an accused before his defence is heard violates the right to a fair trial under Article 50 of the Constitution and contravenes the mandatory provisions of Section 211 CPC. The accused was denied an opportunity to be heard, which occasioned a miscarriage of justice.
5. The trial court erred in invoking Section 306(2) CPC, which is inapplicable to subordinate courts. The proper section is 211 CPC.
6. Section 362 of the Criminal Procedure Code empowers the High Court to calls of on its own motion or upon being moved by a party of an examine the records of the lower court to consider correctness, legality or propriety of any finding or sentence of that court .
7. The defence case was unlawfully closed at the instance of the prosecution, contrary to law.
8. The conviction and sentence imposed without hearing the defence are irregular and unlawful.
9. The accused’s constitutional right to a fair trial under Article 50 was violated.
ORDER
Accordingly, I hereby:
• Quash the conviction and sentence of five (5) years’ imprisonment imposed upon the accused under Section 364 CPC
• Proceed to substitute the said orders with orders remitting the matter back to the Chief Magistrates Court at Ogembo for compliance with issuing directions under the provisions of section 211 CPC on election of mode of defence or exercise of the right to remain silent.
• Direct that the accused be produced before the trial court on 5.3.26 at 9.00am for directions
• Copy of this ruling be served upon Hon P. Biwott.
It is so ordered.
DELIVERED VIA CTS
HON. T.A ODERA JUDGE
1.3.26
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