REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KWALE
HC CRIMINAL REVISION NO. E091 OF 2026
(Coram: Andayi W. F., J.)
REVISION APPLICATION BY THE DPP ARISING FROM
KWALE MAGISTRATE’S COURT CRIMINAL CASE NO. E361 OF 2025
REPUBLIC.................................................................THROUGH THE DPP
VERSUS
SALIM ABDALLAH SALIM........................................1 ST ACCUSED PERSON
PATRICK MATHEKA................................................2 ND ACCUSED PERSON
ATHMAN MOHAMED MATESO alias DANGOTE....3 RD ACCUSED PERSON
R U L I N G
1. On 13 th July 2026, the magistrate’s court at Kwale, Hon. Joy Mutimba made an order that the prosecution’s case was closed and reserved a date for ruling on case to answer for 30 th July 2026. On 28 th July 2026, the DPP wrote to this court a letter requesting for revision of the magistrate’s court order closing its case and for an order that the prosecution’s case be reopened for the limited purpose of enabling the prosecution to call its remaining material witnesses namely the investigating officer and the forensic analyst and thereafter formerly close its case.
2. I have looked at the proceedings in the lower court and I find that the case has proceeded fairly well. It is not a case where the prosecution can be said to be deliberately delaying the hearing and determination of the case. On past two occasions, the prosecution had promptly made witnesses available and the case proceeded for hearing. So far, three witnesses have testified. The last two testified on 12 th March 2026. On the date fixed for further hearing on 9 th June 2026, the learned prosecution counsel indicated that she had two witnesses and therefore ready to proceed. That must have been in the morning. When the matter was called out for hearing at 1309 Hours the learned prosecution counsel informed the court that there appeared to have been miscommunication and the witnesses had been asked to leave. She did not however say from whom the miscommunication had come. She prayed for an adjournment with an indication that the investigating officer had promised to make available witnesses at the next hearing date. The accused persons conceded to the application for adjournment. The hearing was adjourned to 13 th July 2026 with the court directing that all remaining witnesses be made available.
3. Come that day the learned prosecution counsel informed the court that all her three remaining witnesses were not available. She explained why each of them was not present. She said the arresting officer was said to be on off-duty, the scenes of crime officer was not picking his calls even though he had indicated that he would be turning up to testify while the investigating officer who was to wrap up the case was not around. She then asked for adjournment.
4. The 1 st accused person, in response, said that last time the prosecution had said the same thing. That was not correct because from the previous court’s proceedings what caused the adjournment was miscommunication to the witnesses who were present for the hearing, and they had left without testifying. The 1 st accused person further said that they had been in custody and were getting disillusioned. He prayed that the court keep’s its word. The 2 nd accused person said that he adopted the sentiments expressed by the 1 st accused person.
5. The court then ordered that the prosecution’s case was closed indicating that the prosecution had two last chances to make available witnesses. Ruling on case to answer was reserved for 30 th July 2026.
6. When the matter was placed before this court on 28 th July 2026, the court granted an order staying the delivery of the ruling until the determination of the application herein. The court was at the same time proceeding for recess from 1 st August 2026 to 15 th September 2026. This ruling is delivered during the recess.
7. The accused persons before the trial court were charged with two counts. The first count is burglary contrary to section 304(2) and stealing contrary to section 279(b) of the Penal Code (Cap. 63) Laws of Kenya. They both pleaded guilty to this charge and were convicted and fined KShs 100,000/= each in default to serve twelve (12) months’ imprisonment. This was after this court revised the default term of imprisonment from 3 1 / 2 years’ imprisonment.
8. The second count is stealing contrary to section 268(1) of the Penal Code that on the night of 17 th August 2025 at Villa Leonara within Diani Township in Diani location, Msambweni Sub-County within Kwale County jointly stole sound link blue tooth speaker valued at KShs 16,000/= and DJI Osmo phone valued at KShs 15,000/= all valued at KShs 31,000/= the property of Milcha Ngendo Machua. The said Milcha Ngendo Machua has testified in the case as PW 2 on 12 th March 2026.
9. The grounds in support of the application for revision herein are that on 13 th July 2026, the regular prosecution counsel for the magistrate’s court was away on induction training for newly appointed prosecution counsels. Further that the learned prosecution counsel, the Assistant Director of Public Prosecutions who attended the court on that day was not aware that the court had granted a final adjournment in the matter. He nonetheless explained to the court the reasons for the absence of the witnesses and asked for adjournment but the court declined the same and had the case closed and a date for ruling on case to answer reserved. It is the applicant’s case that the witnesses remaining are material to the case and are ready and willing to attend court to testify and for the prosecution to close its case.
10. I have considered the application by the DPP. The application is expressed to be filed under sections 362, 364 and 365 of the Criminal Procedure Code (Cap. 75) Laws of Kenya (CPC) for the court to satisfy itself as to the correctness, legality or propriety of the ruling or order issued by the magistrate’s court, on 13 th July 2026 declining to grant the prosecution adjournment and ordering that the case is closed and reserving a date for ruling on case to answer.
11. There were no submissions made on the application. 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 wished the trial court’s order closing the case to be upheld.
12. The issue, the subject of this application arises from the magistrate’s court’s decision on 13 th July 2026 declining to grant the prosecution an adjournment and ordering that the case is closed and reserving a date for ruling on case to answer.
13. I have considered the application and I find the issue for determination to be whether there is any incorrectness, illegality, or impropriety of any finding, sentence, or order recorded or passed, or irregularity of the proceedings of the lower court herein.
14. The application is expressed to be brought under article 165(6) and (7) of the constitution of Kenya and sections 362, 363 and 364 of the CPC. Article 165(6) and (7) of the constitution 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.
15. 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.”
16. 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) …
17. 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.”
18. 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.
19. The application herein arises out of the trial court’s exercise of its discretionary power to adjourn a case. Section 205(1) of the Criminal Procedure Code (CPC) provides for the power of the court to adjourn a case as follows:
(1) The court may, before or during the hearing of a case, adjourn the hearing to a certain time and place to be then appointed and stated in the presence and hearing of the party or parties or their respective advocates then present, and in the meantime the court may allow the accused person to go at large, or may commit him to prison, or may release him upon his entering into a recognizance with or without sureties conditioned for his appearance at the time and place to which the hearing or further hearing is adjourned:
Provided that no such adjournment shall be for more than thirty clear days, or, if the accused person has been committed to prison, for more than fifteen clear days, the day following that on which the adjournment is made being counted as the first day.
20. In the case of Republic v Paul Mutuku Magado [2019] KEHC 8440 (KLR) the High Court considering the above provisions of the law stated that:
“The above provisions leave no room for doubt that an adjournment is granted at the discretion of the court. It must however be exercised fairly and justly upon reasonable grounds being advanced. It must not be forgotten that the purpose of a trial is to give parties a fair level playing field where each will be given an opportunity to present its case. The said court process should however not be subjected to abuse.”
21. The court in that case went further to list some of the factors that a court may take into account in the exercise of its discretionary power to adjourn the case saying:
“Whereas each application for adjournment depends on its own special circumstances, some of the common factors to guide a court in making a decision are: -
i. The length of time a case has taken undergoing hearing from the time the plea was taken;
ii. Whether the accused person is out on bail/bond pending hearing or if he/she is in custody;
iii. The number of applications for adjournment an accused person or the prosecution has made;
iv. If the reasons given for adjournment are plausible;
v. The commitment of the parties to have the case heard expeditiously;
vi. If any exogenous factors have contributed to delay in the hearing of a case;
vii. If new or additional compelling evidence has come to the attention of the prosecution or the accused person in the course of hearing the case; and
viii. The nature of the charge and consequent sentence if an accused person was to be convicted”
22. In the present case, I have outlined above the circumstances leading to the trial court declining to grant the adjournment. I have also said that from this court’s observation, the trial had proceeded fairly well. Witnesses were present in court on a previous hearing date as fixed and it was not clear who had misled them to leave the court premises before testifying. There was also an explanation of why they were not present on the material date when the court declined the adjournment. At least, one of the reasons was valid, that he was on off-duty, meaning that in any case, the case the prosecution was not going to close its case that day even if the other witnesses had been present. This is not to countenance any frivolous reasons for adjournment which I do not find in this case. Even the witness who was said he had indicated he was to turn up but was not picking his calls could not be condemned without being heard on why he was then not available.
23. Then there was the aspect of the regular prosecutor for the court being away on official induction training for newly appointed prosecution counsel. All these reasons considered whether separately or together, I find that they were sufficient for the trial court to exercise its discretion in favour of the prosecution in order to enable it call the witnesses it considered crucial for its case in order to achieve its objective of assisting the court to reach a fair verdict on the case. Given all these valid reasons, I do not understand why the trial court appears to have been exasperated with the application for adjournment by the prosecution to the extent that it failed to call upon the learned prosecutor and the accused person to make submissions or arguments on closure of the prosecution’s case provided for under section 210 CPC.
24. Further, the court had an option to ask the prosecution whether they wished to have the charges withdrawn under section 87(a) CPC in order to ensure all the witnesses were available to testify. Granted that cases should be heard expeditiously and the Judiciary has adopted a zero policy of adjournment of cases, certainly that is to be adhered to, but it cannot be cause to compromise fair hearing requirements. Where there are valid reasons as was the case herein, the court should judiciously exercise its discretion and grant an adjournment. Where a party is sleeping on its case through multiple applications for adjournment, the same will definitely be declined.
25. The court was not satisfied by the option of the appellant to seek an adjournment on the ground that witnesses were not available. I am aware that in doing so the trial court exercised its discretion over proceedings that should not be readily interfered with unless there is a good ground to demonstrate that the power was arbitrarily applied and in that case it would lead to an injustice.
26. The Court of Appeal dealing with a similar issue albeit in a civil matter in the case of Moses M. Njoroge & another v Samat Bhima [1994] KECA 98 (KLR) stated that:
“It is of course not in doubt that any question of adjournment isa matter within the discretion of the judge of the court of trial and the manner of its exercise will not be interfered with if it appears to an appellate court that all necessary matters have been taken into consideration. See the case of Patel v Gottfried [1953] 20 EACA 81. The exercise of discretion should not defeat the rights of the parties altogether and should not do injustice to one or other of the parties. If it does so then the appellate court has power to review such an order.”
27. I think I have said enough above to show that in my view, the learned trial magistrate was in error in the exercise of her discretion on adjournment of the case to enable the prosecution to make available its final witnesses in the case. There were good grounds to adjourn the case without compromising the parties’ rights to have the case heard and determined within a reasonable time. I therefore find that the prosecution’s case was prematurely closed and in the circumstances, the trial court’s order of 13 th July 2026 is hereby set aside. It is hereby ordered that the prosecution’s case shall be re-opened for further hearing which I think should be concluded within one day.
28. Mention before Hon. Joy Mutimba on 1 st September 2026 for directions as to the further hearing of the case.
29. Orders accordingly.
Ruling delivered , dated and signed on Virtual Platform, Teams this 27 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. E361 of 2025 11 Revision-Refusal to adjourn
IN THE HIGH COURT OF KENYA AT KWALE
HC CRIMINAL REVISION NO. E091 OF 2026
(Coram: Andayi W. F., J.)
REVISION APPLICATION BY THE DPP ARISING FROM
KWALE MAGISTRATE’S COURT CRIMINAL CASE NO. E361 OF 2025
REPUBLIC.................................................................THROUGH THE DPP
VERSUS
SALIM ABDALLAH SALIM........................................1 ST ACCUSED PERSON
PATRICK MATHEKA................................................2 ND ACCUSED PERSON
ATHMAN MOHAMED MATESO alias DANGOTE....3 RD ACCUSED PERSON
R U L I N G
1. On 13 th July 2026, the magistrate’s court at Kwale, Hon. Joy Mutimba made an order that the prosecution’s case was closed and reserved a date for ruling on case to answer for 30 th July 2026. On 28 th July 2026, the DPP wrote to this court a letter requesting for revision of the magistrate’s court order closing its case and for an order that the prosecution’s case be reopened for the limited purpose of enabling the prosecution to call its remaining material witnesses namely the investigating officer and the forensic analyst and thereafter formerly close its case.
2. I have looked at the proceedings in the lower court and I find that the case has proceeded fairly well. It is not a case where the prosecution can be said to be deliberately delaying the hearing and determination of the case. On past two occasions, the prosecution had promptly made witnesses available and the case proceeded for hearing. So far, three witnesses have testified. The last two testified on 12 th March 2026. On the date fixed for further hearing on 9 th June 2026, the learned prosecution counsel indicated that she had two witnesses and therefore ready to proceed. That must have been in the morning. When the matter was called out for hearing at 1309 Hours the learned prosecution counsel informed the court that there appeared to have been miscommunication and the witnesses had been asked to leave. She did not however say from whom the miscommunication had come. She prayed for an adjournment with an indication that the investigating officer had promised to make available witnesses at the next hearing date. The accused persons conceded to the application for adjournment. The hearing was adjourned to 13 th July 2026 with the court directing that all remaining witnesses be made available.
3. Come that day the learned prosecution counsel informed the court that all her three remaining witnesses were not available. She explained why each of them was not present. She said the arresting officer was said to be on off-duty, the scenes of crime officer was not picking his calls even though he had indicated that he would be turning up to testify while the investigating officer who was to wrap up the case was not around. She then asked for adjournment.
4. The 1 st accused person, in response, said that last time the prosecution had said the same thing. That was not correct because from the previous court’s proceedings what caused the adjournment was miscommunication to the witnesses who were present for the hearing, and they had left without testifying. The 1 st accused person further said that they had been in custody and were getting disillusioned. He prayed that the court keep’s its word. The 2 nd accused person said that he adopted the sentiments expressed by the 1 st accused person.
5. The court then ordered that the prosecution’s case was closed indicating that the prosecution had two last chances to make available witnesses. Ruling on case to answer was reserved for 30 th July 2026.
6. When the matter was placed before this court on 28 th July 2026, the court granted an order staying the delivery of the ruling until the determination of the application herein. The court was at the same time proceeding for recess from 1 st August 2026 to 15 th September 2026. This ruling is delivered during the recess.
7. The accused persons before the trial court were charged with two counts. The first count is burglary contrary to section 304(2) and stealing contrary to section 279(b) of the Penal Code (Cap. 63) Laws of Kenya. They both pleaded guilty to this charge and were convicted and fined KShs 100,000/= each in default to serve twelve (12) months’ imprisonment. This was after this court revised the default term of imprisonment from 3 1 / 2 years’ imprisonment.
8. The second count is stealing contrary to section 268(1) of the Penal Code that on the night of 17 th August 2025 at Villa Leonara within Diani Township in Diani location, Msambweni Sub-County within Kwale County jointly stole sound link blue tooth speaker valued at KShs 16,000/= and DJI Osmo phone valued at KShs 15,000/= all valued at KShs 31,000/= the property of Milcha Ngendo Machua. The said Milcha Ngendo Machua has testified in the case as PW 2 on 12 th March 2026.
9. The grounds in support of the application for revision herein are that on 13 th July 2026, the regular prosecution counsel for the magistrate’s court was away on induction training for newly appointed prosecution counsels. Further that the learned prosecution counsel, the Assistant Director of Public Prosecutions who attended the court on that day was not aware that the court had granted a final adjournment in the matter. He nonetheless explained to the court the reasons for the absence of the witnesses and asked for adjournment but the court declined the same and had the case closed and a date for ruling on case to answer reserved. It is the applicant’s case that the witnesses remaining are material to the case and are ready and willing to attend court to testify and for the prosecution to close its case.
10. I have considered the application by the DPP. The application is expressed to be filed under sections 362, 364 and 365 of the Criminal Procedure Code (Cap. 75) Laws of Kenya (CPC) for the court to satisfy itself as to the correctness, legality or propriety of the ruling or order issued by the magistrate’s court, on 13 th July 2026 declining to grant the prosecution adjournment and ordering that the case is closed and reserving a date for ruling on case to answer.
11. There were no submissions made on the application. 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 wished the trial court’s order closing the case to be upheld.
12. The issue, the subject of this application arises from the magistrate’s court’s decision on 13 th July 2026 declining to grant the prosecution an adjournment and ordering that the case is closed and reserving a date for ruling on case to answer.
13. I have considered the application and I find the issue for determination to be whether there is any incorrectness, illegality, or impropriety of any finding, sentence, or order recorded or passed, or irregularity of the proceedings of the lower court herein.
14. The application is expressed to be brought under article 165(6) and (7) of the constitution of Kenya and sections 362, 363 and 364 of the CPC. Article 165(6) and (7) of the constitution 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.
15. 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.”
16. 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) …
17. 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.”
18. 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.
19. The application herein arises out of the trial court’s exercise of its discretionary power to adjourn a case. Section 205(1) of the Criminal Procedure Code (CPC) provides for the power of the court to adjourn a case as follows:
(1) The court may, before or during the hearing of a case, adjourn the hearing to a certain time and place to be then appointed and stated in the presence and hearing of the party or parties or their respective advocates then present, and in the meantime the court may allow the accused person to go at large, or may commit him to prison, or may release him upon his entering into a recognizance with or without sureties conditioned for his appearance at the time and place to which the hearing or further hearing is adjourned:
Provided that no such adjournment shall be for more than thirty clear days, or, if the accused person has been committed to prison, for more than fifteen clear days, the day following that on which the adjournment is made being counted as the first day.
20. In the case of Republic v Paul Mutuku Magado [2019] KEHC 8440 (KLR) the High Court considering the above provisions of the law stated that:
“The above provisions leave no room for doubt that an adjournment is granted at the discretion of the court. It must however be exercised fairly and justly upon reasonable grounds being advanced. It must not be forgotten that the purpose of a trial is to give parties a fair level playing field where each will be given an opportunity to present its case. The said court process should however not be subjected to abuse.”
21. The court in that case went further to list some of the factors that a court may take into account in the exercise of its discretionary power to adjourn the case saying:
“Whereas each application for adjournment depends on its own special circumstances, some of the common factors to guide a court in making a decision are: -
i. The length of time a case has taken undergoing hearing from the time the plea was taken;
ii. Whether the accused person is out on bail/bond pending hearing or if he/she is in custody;
iii. The number of applications for adjournment an accused person or the prosecution has made;
iv. If the reasons given for adjournment are plausible;
v. The commitment of the parties to have the case heard expeditiously;
vi. If any exogenous factors have contributed to delay in the hearing of a case;
vii. If new or additional compelling evidence has come to the attention of the prosecution or the accused person in the course of hearing the case; and
viii. The nature of the charge and consequent sentence if an accused person was to be convicted”
22. In the present case, I have outlined above the circumstances leading to the trial court declining to grant the adjournment. I have also said that from this court’s observation, the trial had proceeded fairly well. Witnesses were present in court on a previous hearing date as fixed and it was not clear who had misled them to leave the court premises before testifying. There was also an explanation of why they were not present on the material date when the court declined the adjournment. At least, one of the reasons was valid, that he was on off-duty, meaning that in any case, the case the prosecution was not going to close its case that day even if the other witnesses had been present. This is not to countenance any frivolous reasons for adjournment which I do not find in this case. Even the witness who was said he had indicated he was to turn up but was not picking his calls could not be condemned without being heard on why he was then not available.
23. Then there was the aspect of the regular prosecutor for the court being away on official induction training for newly appointed prosecution counsel. All these reasons considered whether separately or together, I find that they were sufficient for the trial court to exercise its discretion in favour of the prosecution in order to enable it call the witnesses it considered crucial for its case in order to achieve its objective of assisting the court to reach a fair verdict on the case. Given all these valid reasons, I do not understand why the trial court appears to have been exasperated with the application for adjournment by the prosecution to the extent that it failed to call upon the learned prosecutor and the accused person to make submissions or arguments on closure of the prosecution’s case provided for under section 210 CPC.
24. Further, the court had an option to ask the prosecution whether they wished to have the charges withdrawn under section 87(a) CPC in order to ensure all the witnesses were available to testify. Granted that cases should be heard expeditiously and the Judiciary has adopted a zero policy of adjournment of cases, certainly that is to be adhered to, but it cannot be cause to compromise fair hearing requirements. Where there are valid reasons as was the case herein, the court should judiciously exercise its discretion and grant an adjournment. Where a party is sleeping on its case through multiple applications for adjournment, the same will definitely be declined.
25. The court was not satisfied by the option of the appellant to seek an adjournment on the ground that witnesses were not available. I am aware that in doing so the trial court exercised its discretion over proceedings that should not be readily interfered with unless there is a good ground to demonstrate that the power was arbitrarily applied and in that case it would lead to an injustice.
26. The Court of Appeal dealing with a similar issue albeit in a civil matter in the case of Moses M. Njoroge & another v Samat Bhima [1994] KECA 98 (KLR) stated that:
“It is of course not in doubt that any question of adjournment isa matter within the discretion of the judge of the court of trial and the manner of its exercise will not be interfered with if it appears to an appellate court that all necessary matters have been taken into consideration. See the case of Patel v Gottfried [1953] 20 EACA 81. The exercise of discretion should not defeat the rights of the parties altogether and should not do injustice to one or other of the parties. If it does so then the appellate court has power to review such an order.”
27. I think I have said enough above to show that in my view, the learned trial magistrate was in error in the exercise of her discretion on adjournment of the case to enable the prosecution to make available its final witnesses in the case. There were good grounds to adjourn the case without compromising the parties’ rights to have the case heard and determined within a reasonable time. I therefore find that the prosecution’s case was prematurely closed and in the circumstances, the trial court’s order of 13 th July 2026 is hereby set aside. It is hereby ordered that the prosecution’s case shall be re-opened for further hearing which I think should be concluded within one day.
28. Mention before Hon. Joy Mutimba on 1 st September 2026 for directions as to the further hearing of the case.
29. Orders accordingly.
Ruling delivered , dated and signed on Virtual Platform, Teams this 27 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. E361 of 2025 11 Revision-Refusal to adjourn