[2022] KEHC 9908 (KLR)

Abdulmajid v Khitami & 2 others (Criminal Appeal E014 of 2021) [2022] KEHC 9908 (KLR) (Crim) (20 July 2022) (Judgment)

Neutral citation: [2022] KEHC 9908 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Appeal E014 of 2021

JM Bwonwong'a, J

July 20, 2022

Between

Anwar Sadat Abdulmajid

Appellant

and

Mohammed Mohammed Khitami

1st Respondent

Director of Public Prosecutions

2nd Respondent

DCI (Railways Police Station)

3rd Respondent

(Being appeal from the ruling of the Hon. C.M. Njagi, SRM, dated 26/02/2021 in the Chief Magistrates’ Court at Milimani in Misc Criminal Application No. E3317 of 2020, Anwar Sadat Abdulmajid v 1. Mohammed Mohammed Khitami 2. Director of Public Prosecutions 3. DCI (Railways Police Station)

Court recommends that a private prosecutor who has been given leave to prosecute ought to be given a limited right of appeal

The instant appeal challenged the denial of the appellant's leave to privately prosecute the 1st respondent. The court held that it was only the Director of Public Prosecutions (DPP) on behalf of the Republic who was allowed to appeal to the High Court and that no such right of appeal was conferred upon the private prosecutor. The court further held that the private prosecutor was left with the only option of seeking a remedy in a civil court. The court pointed out that the citation of parties at the trial court should have been; Republic through the private prosecutor versus the accused. The court also held that the only way the DPP would have participated in the appeal was either upon his application or upon being invited as amicus curiae by the court. The court recommended that a private prosecutor who had been given leave to prosecute ought to be given a limited right of appeal.

Reported by Kakai Toili

Criminal Procedure- private prosecution - appeals arising from private prosecution - right of appeal by a private prosecutor - whether a private prosecutor had a right to appeal against the decision of a Magistrate Court - what was the option available to a private prosecutor who sought to appeal against the decision of a Magistrate Court - Constitution of Kenya, 2010, article 50(2)(q); Criminal Procedure Code, Cap 75, section 88 and 348A.Constitutional Law- Director of Public Prosecutions (DPP) - exercise of powers by the DPP - circumstance in which the exercise of powers by the DPP was subject to review by courts - under what circumstance could the DPP participate in an appeal instituted by a private prosecutor - Constitution of Kenya, 2010, article 157. Criminal Procedure- parties in criminal proceedings - citation of parties in criminal proceedings - citation of parties in matters involving private prosecutors - what was the proper citation of parties in a trial court in a matter involving a private prosecutor?

Brief facts The appellant filed the instant appeal against the ruling of the trial court that denied him leave to privately prosecute (to institute criminal proceedings) against the 1st respondent on a charge of stealing his motor vehicle. The appellant’s grounds of appeal included that; the trial court erred in law and fact in dismissing the application on the basis that the dispute was civil without considering the elements of the offence; the trial court erred in law and fact in failing to observe that the decision of the Director of Public Prosecutions (DPP) not to prosecute the 1st respondent was arbitrary and unreasonable; and the trial court erred in law and fact in failing to find that the 3rd respondent had sufficient evidence to sustain a conviction against the 1st respondent.The appellant submitted that the appellant’s car was stolen and the appellant reported the matter to Railway Police Station. The appellant further submitted that police found the motor vehicle in the possession of the 1st respondent; who failed to explain how he acquired its possession. After investigations the Directorate of Criminal Investigations (DCI) Railway forwarded the investigation file to the DPP for perusal and approval to institute criminal proceedings against the 1st respondent. Subsequently, the DPP declined to prefer charges against the 1st respondent, which prompted the appellant to apply for permission to file a private prosecution against the 1st respondent.

Issues

Whether a private prosecutor had a right to appeal against the decision of a Magistrate Court.

What was the option available to a private prosecutor who sought to appeal against the decision of a Magistrate Court?

What was the proper citation of parties in a trial court in a matter involving a private prosecutor?

Under what circumstance could the Director of Public Prosecutions participate in an appeal instituted by a private prosecutor?

Under what circumstance was the exercise of powers by the Director of Prosecutions subject to review by courts?

Relevant provisions of the Law Criminal Procedure Code (cap 75)Section 88 - Permission to conduct prosecution1) A magistrate trying a case may permit the prosecution to be conducted by any person, but no person other than a public prosecutor or other officer generally or specially authorized by the Director of Public Prosecutions in this behalf shall be entitled to do so without permission.(2) Any such person or officer shall have the same power of withdrawing from the prosecution as is provided by section 87, and the provisions of that section shall apply to withdrawal by that person or officer.(3) Any person conducting the prosecution may do so personally or by an advocate.

Held

The Constitution of Kenya, 2010 (Constitution) had in a large measure constitutionalized the criminal procedure processes. The only right of appeal donated to an aggrieved party was in respect of the person, who had been convicted and sentenced. All the remaining aggrieved parties could only appeal if there was in place a statutory right of appeal enabling them to appeal in the Criminal Procedure Code. In the context of a trial in the Magistrate’s Court, it was only the DPP on behalf of the Republic, who was allowed to appeal to the High Court under section 348A of the Criminal Procedure Code. No such similar right of appeal was conferred upon the private prosecutor.

A right of appeal was a creation of statute. In other words, an appellant had to point out the statutory authority that allowed him to appeal. Where the statute did not give an aggrieved party a right of appeal from one tribunal to another, there was no such right. Section 88 of the Criminal Procedure Code did not give the prosecutor a right of appeal. In the absence of an enabling statutory law permitting a private prosecutor to appeal, he could not in law appeal. There was no such thing as a general right of appeal for it was either conferred by statute or not. That left the private prosecutor with the only option of seeking a remedy in a civil court.

In colonial Kenya, the private prosecutor had a limited right of appeal. The right of appeal that was given to the private prosecutor was subject to obtaining the written consent of the Attorney General, before appealing. The requirement for obtaining the consent was because the appeal was one against an acquittal, the safeguard was necessary to prevent the accused from being put in jeopardy a second time except upon the soundest grounds.

In post-independent Kenya, a private prosecutor appealed to the Court of Appeal and that court rendered a controversial decision that recognized the right of appeal of a private prosecutor against an acquittal. The decision was rendered under the 1963 Independence Constitution of Kenya, whose precedential value was only persuasive but not binding following the proclamation of the Constitution of Kenya, 2010.

It was recommended that a private prosecutor who had been given leave to prosecute under section 88 of the Criminal Procedure Code ought to be given a limited right of appeal. That would be necessary to avoid creating judicial dictatorship in the lower courts. To protect an accused who had been acquitted by the lower court, the victim or complainant who intended to appeal had to seek leave of the High Court before he appealed.

The citation of the parties at the trial court should have been as follows: Republic through Anwar Sadat Abdulmajid v Mohammed Mohammed Khitami (Accused).

It was wrong in law for the private prosecutor to cite himself as the appellant in the court and to cite himself as the prosecutor in the Magistrate’s Court. If the proper citation had been done, the private prosecutor could have found out that he did not have a right of appeal against the order appealed against; since he was not a party to the proceedings in the Magistrate’s Court. It was the improper citation of the parties that had continued to confuse private prosecutions.

It was wrong in law for the private prosecutor to cite himself as the appellant in the court and to cite himself as the prosecutor in the Magistrate’s Court. If the proper citation had been done, the private prosecutor could have found out that he did not have a right of appeal against the order appealed against; since he was not a party to the proceedings in the Magistrate’s Court. It was the improper citation of the parties that had continued to confuse private prosecutions.

The DPP and the DCI (Railway Police Station) were cited as respondents in the appeal. Both the DPP and the Railway police station were wrongly cited as respondents. The private prosecutor was not seeking any order against them. Additionally, the work of the Railway Police Station ended when they finished their investigations and the work of the DPP ended when he refused to prosecute the 1st respondent. The only way the DPP would have participated in the appeal was either upon his application or upon being invited as amicus curiae by the court.

The DPP did not apply to the court to be struck off the proceedings since he was wrongly joined as a party. The reason was that what was challenged by the private prosecutor in the instant court was the order of the Magistrate’s Court dismissing his application for permission to prosecute the 1st respondent. The conduct of the DPP in the Magistrate’s Court was not an issue before the instant court, since the exercise of his prosecutorial power was sovereign and independent under article 157 of the Constitution. The exercise of that power was not subject to review by the court unless the conduct amounted to an abuse of the court process.

The language of counsel for the private prosecutor (the appellant) was a matter of concern because in his submissions he submitted that: the 1st respondent failed to prove how it came into his possession and therefore he was either the thief or a person who was dealing in the stolen vehicle. Counsel, as an advocate of the court, should not use such language for an order of conviction from which flowed that a party was a thief was a finding by a court of law. For counsel to call a party a thief was arrogating to himself the powers conferred by a court of law. Counsel should use sober and temperate language.

A private prosecutor needed to be reminded that if his complaint was found to be frivolous vexatious or unreasonable he was liable to pay costs to the public prosecutor in terms of section 171 of the Criminal Procedure Code.

Appeal struck out.

Orders No order as to costs.

Citations Cases Anarita Karimi Njeru v Republic (Criminal Appeal 4 of 1979; [1979] KECA 12 (KLR)) — Explained

Okiya Omtatah v DPP & 3 others (Petition E266 of 2020; [2020] eKLR) — Explained

Republic, through Devji Kanji v Davendra Valji Halai (Criminal Appeal 28 of 1978; [1978] KECA 6 (KLR)) — Explained

Stanley Munga Githunguri v Republic (Criminal Application 271 of 1985; [1986] KEHC 44 (KLR)) — Explained

Riddlesberger v Robson ((1959) EA 841) — Explained

Statutes Constitution of Kenya, 2010 — Article 157; Article 50(2)(q) — Interpreted

Criminal Procedure Code Act (CAP. 75) — Section 88; Section 171; Section 348A; Section 362; Section 364 — Interpreted

Office of the DPP Act, 2013 (Act No. 2 of 2013) — Section 6 — Interpreted

AdvocatesProf. Hassan Nandwa for the appellantMr Otieno for the Republic/respondent

Judgment

1. The appellant has appealed against the ruling of the lower court that denied him leave to privately prosecute (to institute criminal proceedings) the 1st respondent on a charge of stealing motor vehicle registration No KBN 278V. He also sought an order of this court to restrain the 3rd respondent from handling the said motor vehicle.

2. In his petition to this court the appellant has raised five grounds of appeal.

3. In a coalized form they are as follows. First, the learned Senior Resident Magistrate erred in law and fact in dismissing the application on the basis that the dispute was of a civil nature without considering the elements of the offence.

4. Secondly, the learned Senior Resident Magistrate erred in law and fact in failing to observe that the decision of the Director of Public Prosecutions (DPP) not to prosecute the 1st respondent was arbitrary and unreasonable.

5. Third, the learned Senior Resident Magistrate erred in law and fact in failing to observe that the 1st respondent did not produce any proof of ownership of the said motor vehicle.

6. Fourth, the learned Senior Resident Magistrate erred in law and fact in failing to find that the 3rd respondent had sufficient evidence to sustain a conviction against the 1st respondent.

The Submissions of the Appellant. 7. Counsel for the appellant (Prof Hassan Nandwa) submitted that the appellant’s car was stolen and the appellant reported the matter to Railway police station. The police found the said motor vehicle in the possession of the 1st respondent; who failed to explain how he acquired its possession.

8. After investigations the DCI Railway forwarded the investigation file to the DPP for perusal and approval to institute criminal proceedings against the 1st respondent.

9. The DPP declined to prefer charges against the 1st respondent, which prompted the appellant to apply for permission to file a private prosecution against the 1st respondent.

10. Counsel also submitted that police investigations found the said vehicle in the possession of the 1st respondent, who failed to explain how he acquired its possession. It was counsel’s submission that this was a case of theft. Counsel continued to submit that the 1st respondent was either a thief or a person who was dealing in a stolen vehicle. He further submitted the allegation of the 1st respondent that he was the owner of the said vehicle was an issue that he was to raise as part of his defence to the charge of stealing.

11. He also submitted that criminal actions may arise from civil transactions such as the offence of obtaining by false pretences. And therefore, the jurisdiction of the civil court did not prevent a criminal prosecution against the 1st respondent.

12. Counsel further submitted that the investigating officer conducted the necessary investigations and found that there was sufficient evidence to sustain charges of theft or dealing in stolen goods against the 1st respondent. However, the efforts of the investigating officer were frustrated by the arbitrary decision of the DPP not to file charges against the 1st respondent.

13. He further submitted that it was ridiculous that the DPP decided not to charge the 1st respondent. That although the appellant had bought the vehicle he was yet to register it in his name and therefore the 1st respondent had no right to steal it.

14. Finally, counsel has submitted that there is enough evidence to warrant the prosecution of the 1st respondent and therefore the case was ripe for the determination by the subordinate court by granting the appellant leave to privately prosecute it.

The submissions of the 2nd Respondent. 15. The 2nd respondent filed submissions in opposition to the appeal. Counsel for the DPP (Ms Elizabeth Kibathi) submitted that the DPP independently reviewed the evidence that was contained in the investigation file and found that the dispute was purely civil. The DPP further found that the subject vehicle was registered in the name of a company known as Bake and Bite. The DPP further found that the legal question of ownership could only be determined by a civil court. Counsel also submitted that the magistrate’s court properly directly its mind to the applicable law and concluded that the appellant had filed the application for leave to institute criminal proceedings against the 1st respondent to advance his claim over the said vehicle.

16. Counsel for the 2nd respondent also submitted that the lower did not commit any error in supporting the decision of that court; since the DPP is authorized by article 157 of the 2010 Constitution of Kenya and section 6 of the Office of the DPP Act, 2013 to make decisions to charge suspects on the basis of available evidence.

17. She also submitted that the DPP found that the available evidence was insufficient and did not meet the threshold of a realistic prospect of a conviction due to the inconsistencies in the ownership of the subject motor vehicle.

18. In support of her submissions counsel cited the case of Okiya Omtatah v The DPP & 3 others, Nairobi High Court Constitutional Petition No E266 of 2020 in which the court restated the primacy of the DPP’s decision to charge over the recommendation of the investigative bodies. In part that court pronounced itself as follows:"…The institution of criminal proceedings starts with the filing of a charge sheet or information sheet. It therefore follows that the prosecutor takes over once the investigator has formed the opinion that a particular person has committed a disclosed offence and ought to be prosecuted. The Prosecutor is the one who determines the charge, drafts the charge or information and decides on the witnesses to be called…..In the criminal justice system, the investigator is the collector of evidence and the prosecutor is the one granted power to determine whether the evidence is sufficient to mount a prosecution.”

19. Counsel also submitted that the DPP cannot be faulted, for he acted within his constitutional limits and the exercise of his discretionary powers cannot also be faulted.

20. Furthermore, counsel submitted that the 1st respondent cannot be referred to as a thief for he has not been convicted by a court of law.

21Finally, counsel submitted that the trial court set out the conditions precedent before an applicant is granted permission to institute a private prosecution and rightly concluded that the appellant had not fulfilled those conditions. She therefore urges the court to dismiss the appeal for lacking in merit.

Issues for Determination. 22. I have considered the appellants grounds of appeal and his submissions. I have also considered the 2nd respondent’s submissions. I have borne in mind the applicable law in this appeal.

23. As a result, I find the following to be the issues for determination.1. Whether this appeal is competent or not.2. What are the appropriate orders to be made?

Issue 1 24. It is always important to bear in mind that the 2010 Constitution of Kenya has in a large measure constitutionalized the criminal procedure processes. It is therefore important to start the inquiry as to whether the appellant has a right of appeal referring to the Constitutionin that respect. In this regard, article 50(2)(q) of the 2010 Constitution of Kenya provides as follows:(2)"Every accused person has the right to a fair trial, which includes the right—(q)if convicted, to appeal to, or apply for review by, a higher court as prescribed by law.”

25. It is clear therefore that the only right of appeal donated to an aggrieved party is in respect of the person, who has been convicted and sentenced. All the remaining aggrieved parties may only appeal if there is in place a statutory right of appeal enabling them to appeal in the Criminal Procedure Code (cap 75) Laws of Kenya.

26. Furthermore, in the context of a trial in the magistrate’s court, it is only the Director of Public Prosecutions on behalf of the Republic, who is allowed to appeal to the High Court under section 348A of the Criminal Procedure Code which provides that:

27. 348A (1) When an accused person has been acquitted on a trial held by a subordinate court, or where an order refusing to admit a complaint or formal charge, or an order dismissing a charge, has been made by a subordinate court, the Director of Public Prosecutions may appeal to the High Court from the acquittal or order on a matter of law.”

28. It is clear that it is only the Director of Public Prosecutions who is allowed by law to appeal to the High Court against an order of acquittal, an order refusing to admit a charge, or an order dismissing a charge.

29. No such similar right of appeal is conferred upon the private prosecutor.

30. It is settled law that a right of appeal is a creation of statute. In other words, an appellant has to point out the statutory authority that allows him to appeal. In this regard, the Court of Appeal in Anarita Njeru Karimi v Republic (No 2) (1979) KLR 162 emphasized the long-established rule of law that a right of appeal is a creature of statute and where the statute does not give an aggrieved party a right of appeal from one tribunal to another, there is no such right.

31. Furthermore, the provisions of section 88 of the Criminal Procedure Code, which are in the following terms do not give the prosecutor a right of appeal.88. (1)A magistrate trying a case may permit the prosecution to be conducted by any person, but no person other than a public prosecutor or other officer generally or specially authorized by the Director of Public Prosecutions in this behalf shall be entitled to do so without permission.(2)Any such person or officer shall have the same power of withdrawing from the prosecution as is provided by section 87, and the provisions of that section shall apply to withdrawal by that person or officer.(3)Any person conducting the prosecution may do so personally or by an advocate.”

32. The foregoing clearly shows that in the absence of an enabling statutory law permitting a private prosecutor to appeal, he cannot in law appeal. There is no such right such thing as general right of appeal for it is either conferred by statute or not. That leaves the private prosecutor with the only option of seeking a remedy in a civil court.

33. However, the foregoing that the private prosecutor has no right of appeal against an order of acquittal or an order refusing to admit into hearing a charge has not been the case. In colonial Kenya, the private prosecutor had a limited right of appeal in the form of a case stated to the High Court under the then prevailing statutory. The case of Riddlesberger v Robson [1959] EA 841 at page 846, paras A, B, brings into focus the right of appeal that was given to the private prosecutor, which was subject to obtaining the written consent of the Attorney General, before appealing. The requirement for obtaining the consent was because:The consent is necessary when it is remembered that the appeal is one against an acquittal, the safe guard is necessary to prevent the accused being put in jeopardy a second time except upon the soundest grounds.”

34. Furthermore, in post independent Kenya according to the case of Republic through Kanji v Davendra Valji Halai [1978] KLR 178 a private prosecutor appealed to the Court of Appeal and that court rendered a controversial decision that recognized the right of appeal of a private prosecutor against an acquittal. The decision was rendered under the 1963 Independence Constitution of Kenya, whose precedential value is only persuasive but not binding following the proclamation of the Constitution of Kenya in 2010.

35. Furthermore, it is hereby recommended that a private prosecutor who has been given leave to prosecute under section 88 Criminal Procedure Code ought to be given a limited right of appeal. This will be necessary to avoid creating judicial dictatorship in the lower courts. In order to protect an accused who has been acquitted by the lower court, the victim or complainant who intends to appeal has to seek leave of the High Court before he appeals.

36. Notwithstanding the incompetency of this appeal, I find that there are weighty matters of law that warrant revision in terms of section 362 as read with section 364 of the Criminal Procedure Code in respect of the procedure that was adopted by the private prosecutor both in the lower court and in this court. The first such matter is the citation of the parties to a private prosecution. In the instant case the citation of the parties should have been as follows:-Republic through Anwar Sadat Abdulmajid……………………..prosecutorversusMohammed Mohammed Khitami…………………………….………accused

37. This was the procedure that was approved by the Court of Appeal in Riddlesberger v Robson, supra. According to that decision the Crown (now the Republic) is always the prosecutor with the result that the chief prosecutor (now the DPP) and the private prosecutor (the victim or complainant) are both prosecution agents and not parties to the case at trial and in an appeal. The Republic acts through the said agents.

38. It was therefore wrong in law for the private prosecutor to cite himself as the appellant in this court and to cite himself as the prosecutor in the magistrate’s court.

39. If the proper citation had been done, the private prosecutor might have found out that he did not have a right of appeal against the order appealed against; since he was not a party to the proceedings in the magistrate’s court. It is this improper citation of the parties that has continued to cause confuse in private prosecutions.

40. Furthermore, the second confusion that has been brought about by the improper citation of the parties is that the DPP and the DCI (Railway Police Station) are cited as respondents in this appeal. Both the DPP and the Railway police station were wrongly cited as respondents for the following reasons. The private prosecutor is not seeking any order against them. Additionally, the work of the Railway Police Station ended when they finished their investigations and the work of the DPP ended when he refused to prosecute the first respondent, as rightly held in Okiya Omtatah v The DPP & 3 others, supra.

41. The only way the DPP would have participated in this appeal was either upon his own application or upon being invited as amicus curiae by this court. In the private prosecution case of Riddlesberger v Robson, the Attorney General was invited to participate as an amicus curiae at the appellate level, since he was not a party to the proceedings.

42. It is interesting to note that the DPP did not apply to this court to be struck off these proceedings since he was wrongly joined as a party. The reason being that what was challenged by the private prosecutor in this court is the order of the magistrate’s court dismissing his application for permission to prosecute the first respondent. The conduct of the DPP in the magistrate’s court is not an issue before this court, since the exercise of his prosecutorial power is sovereign and independent under article 157 of the 2010 Constitution of Kenya. The exercise of that power is not subject to review by this court unless the said conduct amounts to an abuse of the court process. See Stanley Munga Githunguri v Republic [1986] KLR 1.

43. The language of counsel for the private prosecutor (the appellant herein) is a matter for concern because in his submissions he submitted that:"…the 1st respondent failed to prove how is came into his possession and therefore he is either the thief or a person who is dealing in the stolen vehicle.”

44. Counsel as an advocate of this court should not use such language for an order of conviction from which flows that a party is a thief is a finding by a court of law. For counsel to call a party a thief is arrogating to himself the powers conferred by a court of law. Counsel should use sober and temperate language.

45. Furthermore, a private prosecutor needs to reminded that if his complaint is found to be frivolous or vexatious or unreasonable he is liable to pay costs to the public prosecutor in terms of section 171 of the Criminal Procedure Code; which provides as follows."171. (1)A judge of the High Court or a magistrate of a subordinate court of the first or second class may order a person convicted before him of an offence to pay to the public or private prosecutor, as the case may be, such reasonable costs as the judge or magistrate may deem fit, in addition to any other penalty imposed.(2)A judge of the High Court or a magistrate of a subordinate court of the first or second class who acquits or discharges a person accused of an offence may, if the prosecution for the offence was originally instituted on a summons or warrant issued by a court on the application of a private prosecutor, order the private prosecutor to pay to the accused such reasonable costs as the judge or magistrate may deem fit: Provided that— (i) the costs shall not exceed twenty thousand shillings in the High Court or ten thousand shillings in the case of an acquittal or discharge by a subordinate court; and (ii) no such order shall be made if the judge or magistrate considers that the private prosecutor had reasonable grounds for making his complaint.”

46. I find that the private prosecutor may have been mistaken to believe that he had a case that warranted permission being granted by the court since the Railways police station took the view there was a case that warranted a prosecution.

47. In the circumstances, I find no basis to order him to pay costs of the appeal.

48. In the premises, I find that the appeal of the appellant is incompetent with the result that it is hereby struck out with no order as to costs.

ORDER SIGNED, DATED AND DELIVERED IN OPEN COURT AT NAIROBI THROUGH VIDEO CONFERENCE ON THIS 20TH DAY OF JULY 2022. J M BWONWONG’AJUDGEIn the presence of-Mr. Kinyua: Court AssistantProf. Hassan Nandwa for the appellantMr Otieno for the Republic/respondent