May 16, 2008, 7:31 AM
Delivering ruling, the presiding magistrate told the court that the ruling was predicated upon an application made by prosecutor Mansour Jobe pursuant to section 169 of the Criminal Procedure Code to substitute the single charge filed on 20 August 2015 to a three-count charge filed on 15 September 2015 and to withdraw the single charge accordingly.
He said the prosecuting counsel submitted that the court should take judicial notice that the prosecution had not called any witness and therefore the amendment would not be prejudicial to the rights of the accused person. He urged the court to grant the application.
He said learned defence counsel L.K. Mboge, in his reply, opposed the application because it was against the rules of fair hearing.
Defence counsel submitted that in as much as it is the right of the prosecution to amend the charge, that right to amend is limited by law.
Defence counsel further argued that the application to amend must be supported by facts in accordance with the law and submitted that all of the sub-sections under section 169 of the CPC are not applicable in this case.
“I have carefully listened to the arguments of both counsels for and against the application,” he said.
“It is my considered opinion that there is only one issue for determination in this application and that is whether the accused person’s rights will be prejudiced if an amendment of the charge is granted,” said the magistrate.
It was trite law that the charge is a notice to the accused person of the matters with which he was accused of, he said, adding that it must convey to him with sufficient clarity and certainty the issues with which the prosecution intends to prove against him of which he had to clear himself.
On the other hand, the magistrate went on, a charge is information to the court, which is to try the accused person of the matters to which evidence is to be directed.
“It is therefore my view that such important issues have been fulfilled and that the accused person is in no doubt as to the allegation against him. There is no element of surprise,” stated the magistrate.
He said the charge filed on 20 August 2015 was a complete substitution of the charge filed on 15 September 2015 and evidence was yet to be adduced by the prosecution.
“The case is at the preliminary stage where the accused has only taken his plea and no evidence has been led by the prosecution. I do not see or cannot comprehend how an amendment to the charge would cause injustice or otherwise to the accused person. The objection raised to amend the charge in the circumstances is premature,” he said.
“On account of the above, the objection is overruled on the grounds that no injustice will be caused to the accused in amending the charge by way of substitution,” he added.
“The prosecution is granted leave to substitute a pending three-count charge filed on 15 September 2015 and served on the accused person as if leave to do so had been previously sought and granted.”
“That a single count charge filed on 20 August 2015 is hereby substituted with a three-count charge filed on 15 September 2015.”
“That the accused person shall take his plea now on the three-count charge and trial shall proceed expeditiously.”