[2022] KEHC 11854 (KLR)

Agot v Noiman & 14 others (Criminal Miscellaneous Application E348 of 2021) [2022] KEHC 11854 (KLR) (Crim) (16 May 2022) (Ruling)

Neutral citation: [2022] KEHC 11854 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Miscellaneous Application E348 of 2021

JM Bwonwong'a, J

May 16, 2022

Between

Bryson Mangla Agot

Applicant

and

Moshe Noiman

1st Respondent

Margot Noiman

2nd Respondent

Classic Mouldings Limited

3rd Respondent

Daniel Kioo Musinga

4th Respondent

Suleiman O Mbaku

5th Respondent

Jane Njeri Joram

6th Respondent

Hanington Ambale

7th Respondent

Elizabeth Gitei

8th Respondent

Virendra Kumar Talwar

9th Respondent

Geof Orao Obura

10th Respondent

Director of Public Prosecutions

11th Respondent

Directorate of Criminal Investigations

12th Respondent

Inspector General

13th Respondent

District Grand Lodge of East Africa

14th Respondent

Kenya Revenue Authority

15th Respondent

Ruling

1. On October 12, 2021Bryson Mangla Agot (hereafter ‘the applicant’), under certificate of urgency, filed a notice of motion application dated October 10, 2021. In his application he sought leave to institute a private prosecution against the respondents for the killing of an unborn child for witchcraft to procure masonic business omen. He also prayed that the court grant orders of access to the records of the 1st respondent held at Grand Master of Donyo Sabuk Freemason’s Lodge and the 2nd respondent’s medical file held at Aga Khan Hospital and by Dr. Forbes. He also sought prayed that warrants of arrest be issued against the respondents for processing and charging.

2. In response to the application, the 4th respondent through Messrs Kilukumi and company advocates raised a notice of preliminary objection dated November 12, 2021 on the ground that:i.“This court lacks jurisdiction to entertain the present application brought under section 88 of the Criminal Procedure Code seeking leave to institute private prosecution against the respondents.”

3. The preliminary objection thus forms the subject matter of this ruling. The matter proceeded by way of written submissions where the applicant and learned counsel for the parties made submissions in support of their respective positions.

The 4th respondent’s written submissions on the preliminary objection 4. For the 4th respondent, Messrs Kilukumi and company advocates submitted that section 88 (1) of the Criminal Procedure Code in express and clear language refers to a magistrate and not a judge of the high court, who is clothed with the jurisdiction to grant the applicant leave to institute a private prosecution against the respondents. They further submitted that the offence alleged to have been committed was triable by the magistrate’s court, which is empowered to grant permission to privately prosecute. They also submitted that even if the offence is exclusively triable by the high court, permission to privately prosecute must first be obtained from the magistrate’s court.

5. The 4th respondent cited the cases of Floriculture International Limited and others High Court Miscellaneous Civil Application No 114 of 1997, Kimani v Nathan Kahara [1983] eKLR and Isaac Aluoch Polo Alouchier v Stephen Kalonzo Musyoka and 218 others [2013] e-KLR, amongst other cases, in support of the preliminary objection.

The applicant’s written submissions 6. The applicant who was acting in person submitted that section 88(1) of the Criminal Procedure Code was varied when the Criminal Procedure (Amendment) Act No. 3 of 1982 was enacted to abolish the role the magistrate court played in the preliminary inquiries before committing the accused to the high court to be tried for serious offences such as murder. Therefore, the jurisdiction issue should be tried on its own merit and unique circumstances based on trite legal principles. The applicant argued that the existing authorities cited by the objector are inapplicable, irrelevant and lacked the force of law as they were decided in disregard of the Criminal Procedure (Amendment) Act No. 13 of 1982. The Criminal Procedure (Amendment) Act No. 13 of 1982 brought into being the committal proceedings in respect of offences exclusively tried by the High Court. Additionally, it also abolished the previous preliminary inquiries. The applicant further submitted that the abolition of the committal proceedings in 2003 by Act No. 5 of 2003 lawfully permitted him to seek leave to prosecute the respondents directly in the High Court.

7. The applicant further submitted that the high court has unlimited original criminal jurisdiction in the first instance to hear and determine any subject matter including a motion to grant permission for a private prosecution. He cited the Court of Appeal (R.S.C Omolo, E. O’kubasu & O. Otieno, JJA) decision in Thomas Patrick Gilbert Cholmondeley [2008] e-KLR, where the court held that the high court can hear all matters without regard to territory or the subject matter in dispute from the pettiest offenders to murderers. The applicant also relied on article 159(2) of the Constitution of Kenya which provides that justice shall not be delayed. He submitted that if the preliminary objection was to be allowed, it would delay the hearing of the main suit which would greatly prejudice him. He also relied on the case of Multiverse Oasis Company Limited vs Kenya Ports Authority &anotherCivil Suit No. 25 of 2010, where the court reiterated that justice shall be administered without undue regard to procedural technicalities as provided in article 159 (2) (d) of the Constitution of Kenya.

8. In addition, he argued that permission for a private prosecution should be granted as of right so long as he can demonstrate that the constitutional offices have refused to prosecute because of abuse of office and corruption as supported by article 157(6) (b) of the Constitution, section 88 of the Criminal Procedure Codeand section 28 of the Office of the Director of Public Prosecutions Act No. 2 of 2013.

9. The applicant further invited the court to break new ground of precedent and urged the court to dismiss the preliminary objection.

10. The 1st, 2nd and 3rd respondents written submissions

11. Messrs LJA Associates LLP for the 1st, 2nd and 3rd respondents associated themselves with the submissions of Mr. Kilukumi in respect of the preliminary objection.

The written submissions of the 9th and 14th respondents. 12. Messrs Taibjee & Bhalla Advocates LLP for the 9th and 14th respondents associated themselves with the submissions of Mr. Kilukumi.

13. The application before court is therefore a non-starter and ought to be dismissed by this honourable court.

The submissions of the 11th respondent 14. The 11th respondent supported the submissions of the 4th respondent.

Issues for determination. 15. I have considered the affidavits of the parties and their submissions in support of and in opposition to the preliminary objection.

16. As a result, I find the following to be the issues for determination.

1. Whether the preliminary objection is sound in law. Analysis and determination. Issue 1 17. I find that the circumstances in which a preliminary objection may be raised was explained by the Court of Appeal in the case of Mukisa Biscuit Manufacturing Co. Ltd -vs- West End Distributors Ltd [1969] EA 696 as follows:a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”

18. I also find that the effect of a preliminary objection if upheld, renders any further proceedings before the court impossible or unnecessary. A preliminary objection cannot therefore be raised if any fact requires to be ascertained. In the case of Oraro -vs- Mbaja (2005) 1 KLR 141, the court held that any assertion which claims to be a preliminary objection, and yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the court should allow to proceed.

19. Additionally, the Court of Appeal also stated in Mukisa Biscuit Company -vs- West End Distributors Ltd, supra, that a preliminary objection cannot be raised if what is sought is the exercise of judicial discretion. The offence in respect of which the applicant seeks permission to prosecute is that of killing of an unborn child for witchcraft to procure masonic business omen. Furthermore, it seems from the submissions of the applicant that he is seeking permission to prosecute the respondents on a murder charge; which is an offence under section 203 as read with section 204 of the Penal Code(Cap 63) Laws of Kenya.

20. Mr. Kilukumi disputes the position taken by the applicant that the offence allegedly committed by the respondents is murder. According to him, that offence cannot be murder. The reason being that murder must be in relation to a baby that has passed out of the mother’s womb alive in terms of section 214 of the Penal Code.

22. I also find that the jurisdiction of the court according to Samuel Kamau Macharia & another v Kenya Commercial Bank andanother [2012] e-KLR, flows from the either the Constitution of Kenya or any other written law. In the instant application the jurisdiction of the court is conferred by article 165 (3) of the Constitution of Kenya which reads as follows:"subject to clause (5), the High Court shall have- (a)unlimited original jurisdiction in criminal and civil matters:(b)jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened……….”

23. In view of the foregoing, it is important to point out that the original jurisdiction (the power to hear and pass judgement) of the High Court to entertain and determine any criminal application or case is unlimited by virtue of article 165 (3) of the Constitution of Kenya. It is in that capacity that it can try all offences whether they are misdemeanours (the pettiest offences such as common assault contrary to section 250 of the Penal Code) or felonies (serious offences such as murder contrary section 203 of the Penal Code). I find that the law is as stated by the Court of Appeal (R.S.C Omolo, E. O’kubasu & O. Otieno, JJA) in Thomas Patrick Gilbert Cholmondeley [2008] e-KLR, in which that court observed that the High Court can hear and determine all matters without regard to territory or the subject matter in dispute from the pettiest offenders to murderers. The Court of Appeal in that regard pronounced itself in the following terms:

24. The High Court, on the other hand can hear all matters without regard to territory or the subject matter in dispute. In criminal matters, it has jurisdiction to try the pettiest of offenders to the murderer. Likewise, in civil matters it has the jurisdiction to try a claim for the meanest amount without regard to the origin of the claim. Of course, it does not normally do so; it would be overwhelmed by the sheer volume of work. But it has the jurisdiction to do so. That is our understanding of the phrase: -“-- unlimited original jurisdiction in civil or criminal matters --”

25. In addition to the provisions of article 165 (3) of the Constitution of Kenya, which vest in the High Court unlimited original jurisdiction in civil and criminal matters, there is in place the First Schedule to the Criminal Procedure Code; which also vests in the High Court unlimited original jurisdiction in all criminal matters. According to that schedule both the magisterial courts and the High Court have concurrent jurisdiction (similar powers to hear and pass judgement) in all cases except treason contrary to section 40 of the Penal Code and murder contrary section 203 as read with 204 of the Penal Code. It is only in murder and treason cases that the High Court has exclusive jurisdiction to try offenders who are charged with those two offences. Stated differently, the High Court has exclusive jurisdiction to try those charged with the offences of treason and murder. Magistrates’ courts are excluded from trying treason and murder cases; because these offences are specifically reserved for the High Court. It is important to point out in all other offences, both the High Court and magistrates’ courts of the first class have concurrent jurisdiction to try those case.

26. Mr. Kilukumi cited the following authorities namely Floriculture International Limited and Others High Court Miscellaneous Civil Application No 114 of 1997 , Kimani V Nathan Kahara Robinson [1983] e-KLR and Isaac Aluoch Polo Alouchier v Stephen Kalonzo Musyoka and 218 others [2013] e-KLR and proceeded to submit that a person who intends to seek permission to prosecute another person, who has breached a penal statute must first make his application under section 88 of the Criminal Procedure Code in the magistrate’s court; which provisions read as follows:(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.”

27. The foregoing submission of Mr. Kilukumi is not correct for the following reasons. First, it overlooks the vesture of unlimited original jurisdiction in criminal and civil matters in the High Court by the Constitution itself. Once a party has invoked the original jurisdiction of the High Court, as in the instant application, the provisions of article 165 (3) 0f the Constitution of Kenya will apply with the result that the High Court will hear and determine the application for permission to prosecute privately.

28. Second, a magistrate’s court cannot in law grant permission to the applicant to prosecute an alleged offender for the offence of murder because it has no jurisdiction to hear and determine it. The reason for this is that the magistrate’s court from which permissible is sought must as a condition precedent have the jurisdiction (the power to hear and pass judgement) to try the offender before him. It is the First Schedule to the Criminal Procedure Code which clearly shows that murder contrary to section 203 is only triable by the High Court.

29. Third, the submission of Mr. Kilukumi that even when an offence is exclusively triable by the High Court, permission to prosecute an alleged offender must be made in the magistrate’s court pursuant to the provisions of section 88 of the Criminal ProcedureCode, is also equally not correct in law. The reason is that the magistrate’s court is not an agent of the High Court. Additionally, it also overlooks the nature and exercise of judicial power which is that each court irrespective of its status must decide for itself whether it has jurisdiction to grant permission to prosecute. In other words, each court in exercise of its judicial functions exercises an independent power and is sovereign in that regard.

30. Fourth, this is not a trial before a judge and a jury, where the judge has to await the verdict of the jury before entering the order of either an acquittal or a conviction depending on the verdict of the jury. This court is both a judge of fact and law.

31. In this regard, I bear in mind that the applicant seems to be seeking permission to prosecute the respondents for the offence of murder; whereas Mr. Kilukumi has taken the view that it is not murder. This issue remains a contentious issue, which has to be resolved during the inter partes hearing.

32. Furthermore, even if the offence committed is not murder this court has jurisdiction to hear and determine it by virtue of its constitutional unlimited original jurisdiction in criminal and civil matters and by virtue of the First Schedule to the Criminal Procedure Code. This view is in line with the decision of the Court of Appeal in Thomas Patrick Gilbert Cholmondeley, supra, in which that court observed that the High Court has jurisdiction to try those charged with the pettiest offence which in law is known as a misdemeanor and a serious offence which in law is known as a felony.

33. Furthermore, I find that the High Court and the first class magistrates’ courts (excluding the court of the Resident Magistrate) have concurrent jurisdiction to try all offences, except murder and treason. In respect of murder and treason the High Court has exclusive jurisdiction to try those charged with these two offences, according to the First Schedule to the Criminal Procedure Code.

34. However, I agree with Mr. Kilukumi that the abolition of the preliminary inquiries by the Criminal Procedure (Amendment) Act No. 13 of 1982 which brought into being the committal proceedings in respect of offences exclusively tried by the High Court and the abolition of the committal proceedings in 2003 by Act No. 5 of 2003 left intact the provisions of section 88 of the Criminal Procedure Code. I may add here that the two amendments also left intact the unlimited original jurisdiction of the High Court in criminal and civil matters. It is the unprecedented abolition of the committal proceedings in 2003 by Act No. 5 of 2003, that led to the direct filing of murder cases in the High Court by the Director of Public Prosecutions without being subjected to the filtering or sieving process by the magistrates’ courts as was the case before. The effect of the latter amendment is an unprecedented procedure in which now the offence of murder is summarily tried like common assault contrary to section 250 of the Penal Code.

35. Furthermore, I find that the High Court and the first-class magistrates’ courts have concurrent jurisdiction to try all offences except murder and treason in which only the High Court has exclusive jurisdiction according to the First Schedule to the Criminal Procedure Code. In those authorities cited by Mr. Kilukumi, the issues of concurrent jurisdiction in both the High Court and the first class magistrates’ courts and the vesture in the High Court of unlimited original jurisdiction in civil and criminal matters were not raised. They are therefore distinguishable in that regard.

36. It is for the foregoing reasons that I find as unhelpful the authorities cited by Mr. Kilukumi and I am unable to agree with those authorities including the opinion of the judge who is seized with this application, in his book namely Criminal Procedures in Criminal Law in Kenya, 1994.

37. Counsel for the 1st, 2nd and 3rd respondents supported and associated themselves with the submissions of Mr. Kilukumi Messrs Taibjee & Bhalla Advocates LLP for the 9th and 14th similarly supported and associated themselves with the submissions of Mr. Kilukumi for the 4th respondent.

38. Counsel for the 11th respondent also supported the submissions of Mr. Kilukumi.

39. I find that it is contentious whether the alleged offence of killing of an unborn child for witchcraft to procure masonic business omen as alleged by the applicant is murder, abortion or another offence. This is so given the provisions of article 26 (1) of the 2010 Constitution of Kenya which guarantees the right to life to every person. And further in article 26 (2) and (3) of the Constitution of Kenya it is clearly provided that life begins at conception; and that no person can be deprived of his life intentionally except to the extent authorized by the Constitution or other written law. Mr. Kilukumi has taken the view that the alleged offence in respect of which permission is sought to prosecute the respondents is not murder. This contention may be resolved by evidence and not at this interlocutory stage.

40. It is clear that the magistrate’s court from which permission is sought must as a condition precedent have the jurisdiction (the power to hear and pass judgement) to try the offence that is charged in the charge sheet. It is for this reason that I reject the submission of Mr. Kilukumi that even for offences that are triable by the High Court permission must first be obtained under section 88 of the Criminal Procedure Code from the magistrate’s court. It therefore follows that magistrate’s court cannot grant permission to prosecute an alleged offender in respect of an offence of murder or treason. Furthermore, the provisions of section 88 of the Criminal Procedure Code, do not oust the unlimited original jurisdiction of the High Court in civil and criminal matters. No craft construction or interpretation will oust the jurisdiction of the High Court. However, the said ouster can only be done by way of an amendment to the Constitution of Kenya.

42. In view of the foregoing findings, I find that this court has jurisdiction to entertain and determine the application with the result that the preliminary objection fails and is hereby dismissed.

43. It therefore follows that the High Court has jurisdiction to hear and determine the instant application

44. In the premises, the 4th respondent’s preliminary objection dated November 12, 2021 fails and is hereby dismissed.

45. I therefore direct that the hearing of the main application should proceed to hearing inter partes.

RULING SIGNED, DATED AND DELIVERED IN OPEN COURT THROUGH VIDEO CONFERENCE AT NAIROBI THIS 16TH DAY OF MAY 2022. J M BWONWONG’AJUDGEIn the presence of: -Kinyua court assistant.The applicant in person.Ms Dave and Mr. Brian Onyango for the 1st, 2nd and 3rd respondents.Ms. Mwanzia holding brief for Mr. Kilukumi for the 4th respondent.Ms Ntabo for the 11th respondent.Mr. Taibjee holding brief for Mr. Bhalaa for the 9th respondent.Mr. Taibjee for the 15th and 9th respondent.And in the absence of-The 5th, 6th, 7th and 8th respondents.The 10th, 12th, 14th, and 16th respondent.