In this application, the applicant seeks permanent stay of prosecution of charges preferred against him in 2016.The applicant was summoned to court on three counts of violating the Road Traffic Act [Chapter 13:11]. The first such appearance was 7 January 2016. Trial did not commence. According to the applicant, trial ...
In this application, the applicant seeks permanent stay of prosecution of charges preferred against him in 2016.
The applicant was summoned to court on three counts of violating the Road Traffic Act [Chapter 13:11]. The first such appearance was 7 January 2016. Trial did not commence. According to the applicant, trial has failed to commence despite appearing before the court on numerous occasions. This is because witnesses would not attend. The applicant avers that every time he was summoned to court he would be told to go back home and await further summons. Thus, according to the applicant, there has been an unreasonable delay in his prosecution and this has resulted in prejudice.
The second respondent contends that the matter is not properly before the court. According to the second respondent, the matter should have been referred by the lower court.
In his submissions, counsel for the applicant argued that it is not correct that the application should have been made in the lower court. He pointed out that section 167A of the Criminal Procedure and Evidence Act [Chapter 9:07] allows a party to apply for permanent stay of prosecution. Counsel for the applicant further submitted that in the present case a record of proceedings was not even opened in the lower court. As to why this was not so, he submitted that this is because there were no witnesses. He further submitted that it is not the magistrate, but prosecutor, who initiates the opening of a record. In this respect he referred to section 140 of the Criminal Procedure and Evidence Act.
Why a record of proceedings was not opened from the onset when the applicant first appeared before the lower court is a mystery. The relevant provision is section 139 and not 140 of the Criminal Procedure and Evidence Act and it states that -
“Where a public prosecutor has, by virtue of his office, determined to prosecute any person in a Magistrates Court for any offence within the jurisdiction of that court, he shall forthwith lodge with the clerk of the court a statement, in writing, of the charge against that person, describing him by his forename, surname, place of abode, and occupation and setting forth shortly and distinctly the nature of the offence and the time and place at which it was committed.”
Therefore, the initial summoning of the applicant should have triggered the opening of a record of proceedings. If some other practice is obtaining in the Magistrates Court, it is not in keeping with the above provision.
