[2022] KEHC 16064 (KLR)

Ajode v Kiprotich & 2 others (Criminal Revision E025 of 2022) [2022] KEHC 16064 (KLR) (Crim) (6 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16064 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Revision E025 of 2022

DO Ogembo, J

December 6, 2022

Between

James Shikanda Ajode

Applicant

and

Jeff Kiprotich

1st Accused

Stompy Mwendwa

2nd Accused

Philip Weru

3rd Accused

Ruling

1. The applicant James Shikanda Ajode, has moved this court vide an application dated February 17, 2022. The said application raises upto 6 substantive prayers. However, I have considered the said prayers and I am convinced that they may well be condenced under prayers 3 and 4, that;'That this honourable court does set aside and or revise the decision/orders of the trial court, Hon William Tulel Lopokoiyit, SRM, made on February 7, 2022, declining to grant an adjournment for the prosecution to avail the last witness who is the investigating officer when the advocate on record had communicated that the witness had an accident the day before and therefore would not make it to court.'And'That this honourable court do set aside and or revise the decision/orders of the trial court, Hon William Tulel Lopokoiyit, SRM, made on February 7, 2022, closing the prosecution case and make an order that summons be issue to the investigating officer to produce medical records in respect of the alleged accident he was involved in.'

2. The application is supported by the affidavit of the applicant sworn on February 17, 2022, basically stating at paragraphs 2 and 3 that the investigating officer who was to be a witness before the court on the hearing date on February 7, 2022 had been involved in an accident on February 6, 2022 and so could not attend court on the material hearing date. That the applicant’s advocate applied for an adjournment on this ground which application was declined by the court. That the court then went on to order close of the prosecutions case. The applicant feels prejudiced by this determination and now seeks that the same be revised and set aside.

3. The applicant has cited several authorities in support of this application including;i.Japheth Pasi Kilonga & 8 others Versus Mombasa Autocare Limited, in which the Court of Appeal held;'Once a suit is set down for hearing, it shall not be adjourned unless a party applying for adjournment satisfies the court that it is just to grant the adjournment.'ii.HK Shah & andother Versus Osman Allu in which the court ruled on what to be considered for grant or refusal of an application for adjournment that;i.The adequacy of reasons given for the application for adjournment.ii.How far, if at all, the other party is likely to be prejudiced by an adjournment.iii.How far such other party can be suitably compensated by mutticing the applicant in costs.

4. The director of public prosecution has supported this application of the applicant. The learned counsel for the state has relied on section 205 of the Criminal Procedure Code, and the case of Republic Versus Paul Mutuku Magado (2019)eKLR, in which the court held;'In making reference to civil jurisdiction, it has been said time and again that the court has a duty to sustain a suit by giving parties a full opportunity to prosecute or defend their cases. A trial court hearing a criminal case has the duty to do justice to the parties that go before it by giving a reasonable opportunity to the complainant to present his or her case and for the accused person to do likewise.'

5. This court has not had the advantage of perusing the submissions of the respondents which are not on record. Similarly, the interested party, the Cooperative Bank, have also not filed any submissions to this application.

6. I have considered this application and the submissions made on it by the parties. If is an application brought under section 362 of the Criminal Procedure Code. under the said section.'The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding sentence or order recorded or passed and as to the regularity of any such proceedings of any such subordinate court.'

7. And under section 364(1)(b) the act, the court in its revisionary powers may make an order altering or reversing the order aggrieved of.

8. In our instant case, it is not in doubt that the subject case is an old case first filed in court in July 2017. Several witnesses had testified and the record shows only the investigating officer remained to testifying as the last witness. Counsel for the applicant clearly gave the trial court the reason why the witness could not present himself to court on the due date. That he had been hospitalized following an accident the day prior to the hearing date. This court appreciates the sense of responsibility that the trial magistrate had in holding that the case had to proceed as fixed. The case had remained indetermined for far too long. However, the learned trial magistrate ought to have considered the reason given for the absence of the witness, and found in favour of the prosecution in their application for adjournment, see the Republic Versus Paul Mutuku Mugado case above. Had the trial court found in favour of the prosecution, the case would probably had been determined by this moment. The orders of the court, have regrettable only that but resulted in further delay in the conclusion of this case.

9. It is for this reason that I find merit in this application for revision and order as follows:-i.That the orders of the Hon William Tulel Lopokoiyit, SRM, issued herein on February 7, 2022, be and are hereby revised and set aside as prayed.ii.That the prosecutions’ case be and is hereby re-opened for the hearing of the evidence of the investigating officer as prayed.iii.That since the trial magistrate has already this matter any further, I order that this case be placed before the chief magistrate, Kibera Law court, for allocation to a different magistrate for hearing and determination in the normal matter.It is so ordered.

HON DO OGEMBOJUDGEDecember 6, 2022COURT:Ruling read out in presence of Mr Mwinzi, Mr Kulekyo and Ms Chege for the state.HON DO OGEMBOJUDGEDecember 6, 2022Court:Case to be mentioned accordingly before the Chief Magistrate Kibera. Parties to attend accordingly for directions. Mention December 14, 2022, (Chief Magistrate – Kibera)