R. v. Murinda & Ors. Crim. Rev. 27-M-71; 23/9/71; El-Kindy J.

R. v. Murinda & Ors. Crim. Rev. 27-M-71; 23/9/71; El-Kindy J.

            The first respondent was charged with representing himself as having power of witchcraft and the other respondents were charged with employing or soliciting the use of witchcraft. A considerable length of time elapsed since the date when the accuseds were formally charged. The various resident magistrates before whom it was mentioned became impatient as the prosecution could not proceed to prosecute. Eventually the court gave a final date for hearing but the prosecutions were not ready. As a result the magistrate dismissed the charge and acquitted the respondents for non-prosecution. He purported to act under section 198 of the Criminal Procedure Code, Cap. 20. About a year after the proceedings were instituted again. The order of the court is sought to be impeached.

                        Held: “There is no doubt that the order was illegal as section 198 of the Criminal Procedure Code, Cap. 20 refer to a situation where the complainant failed to appear. In this case, the complainant was the Republic as represented by the prosecutor (Inspector Kakolaki), and therefore the complainant was not absent. A case cannot be dismissed for want of prosecution under section 198 of the Criminal Procedure Code, Cap. 20 (see also the case of the Director of Public Prosecutions v. Omari s/o Makuka, Law Report Supplement No. 1 to the Government Gazette of 2nd January, 1970, p. 23). As a result, the dismissal order is accordingly set aside and the case referred back to the original court as prayed.”