[2022] KEHC 14104 (KLR)

Awuor v Director of Public Prosecutions (Anti-Corruption and Economic Crimes Revision E011 of 2022) [2022] KEHC 14104 (KLR) (Anti-Corruption and Economic Crimes) (12 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14104 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Anti-Corruption and Economic Crimes

Anti-Corruption and Economic Crimes Revision E011 of 2022

EN Maina, J

October 12, 2022

Between

Millicent Awuor

Applicant

and

Director of Public Prosecutions

Respondent

Judgment

1. Before me is an application for revision of the order of the trial magistrate (Hon Nyutu) by which she has caused summons to issue to the applicant to appear before her for the purpose of offering an explanation on what the applicant’s counsel described as contempt of court.

2. The application is premised on grounds that:-“1)That the Hon Eunice Kagure Nyutu being the Presiding Magistrate in Anti-Corruption Case No 10 of 2018 R v Lilian Mbogo Omollo & 36 others on the October 4, 2022 issued summons against the applicant to offer an explanation on contempt of court.2)That on the October 5, 2022 the applicant herein presented herself to curt and through her advocates and sought to establish the reasons for the summons issued against her as the editor in Chief of Kenya Broadcasting Corporation as she is not a party to the criminal case, a witness or advocate in the matter to be reasonably well versed with the issues at hand.3)That the respondents representative regurgitated an oral application made to court on the September 12, 2022 requiring the applicant on behalf of the Kenya Broadcasting Corporation to bear the burden of allegedly making a false publication on or about the March 25, 2022 against the prosecution witness number 5 being David Mbogo Muthee.4)That the respondent produced a CD having the recording of the news item allegedly implicating the applicant for false publication of the witness accounts in the matter.5)That the Honourable Magistrate has against the rules and reason cited the applicant for contempt on the basis of an oral application made by the state/respondent thus making it difficult for the applicant to easily discern, understand and thoroughly respond to the contempt accusations made against her.6)That against the law requiring formal application notices to be made against an alleged contemnor in contempt of court proceedings, the Honourable Magistrate has unreasonably and illegally trivialized the contempt of court proceedings in a manner that jeopardizes the rights and fundamental freedoms of the applicant.7)That the summons are in themselves drafted in a manner that suggests that the trial court had unreasonably and without offering the applicant an opportunity to be heard, already determined the guilt of the applicant which renders it meaningless of the applicant to defend herself.8)That the summons issued against the applicant are illegal and incorrect as they are made on the basis of an oral contempt of court application that is strange to be current legal regime.”

3. The application is not opposed as counsel for the Director of Public Prosecutions did not enter appearance or attend this court despite being duly served with the notice.

4. I have now had opportunity to peruse the proceedings which gave rise to this application. I note that the impugned order was issued in the backdrop of a trial when the prosecution brought it to the attention of the court, that certain media houses had published material that painted one of the witnesses in the case in bad light. The proceedings indicate that on September 26, 2022 the media houses concerned attended court through their representatives and offered an apology following which the court stated: -“The court has considered the submission by counsel for Didacus Malowa who has been summoned both in his personal capacity and who also appears as the editor of Tuko.co.ke. it has been admitted by the said Didacus Malowa that indeed the article in question was published by their media entity. It has been submitted by the prosecution that the said article had the effect of causing fear of reputational damage as well as intimidation of witnesses who are yet to testify. It has also been submitted that the witness who was the subject matter of the said article has suffered reputational damage. This court takes notice of the public interest that this case has attracted ever since it was instituted. It is the duty of this court to ensure that the dignity of the court as well as of all those who appear before it, is respected and upheld. To cast aspersions against a witness and the manner in which he acquired his property whether real or imagined with a view of selling a sensational story to a public who have a keen interest in the outcome of this case amounts to contempt pursuant to section 10(4) (b) Magistrates Courts Act. The same is punishable under section 10(6) Magistrates Courts Act so as to serve as deterrence to other likeminded persons, journalist or media entities.For the above reasons, the said Didacus Malowa is sentenced as follows: -1)A fine of Kshs 50,000 in default 6 months imprisonment both in his personal capacity and in his capacity as editor Tuko.co.ke2)Tuko.co.ke shall publish an apology to the witness affected in the same media platform and with the same prominence where the article complained of was published.3)Tuko.co.ke shall publish a retraction in the same media platform and with the same prominence where the article complained of was published.4)Orders 2 and 3 shall be complied with within the next 3 days from this date.5)Mention 28 September, 2022. ”

5. We are however here concerned with the summons issued against Millicent Awuor to appear but not the punishment meted against Journalist Didacus Malowa.

6. Learned counsel for the applicant submits that the trial magistrate did not have authority to summon the applicant; that the applicant is apprehensive that should she attend she is most likely going to be jailed just like Journalist Didacus Malowa, who was released by the order of this court and further that the trial magistrate has no jurisdiction to punish for contempt of court. It is counsel’s submission that the jurisdiction to punish for contempt could only be found in the Contempt of Court Act which was declared unconstitutional and hence that power no longer derives.

7. I have carefully considered the above arguments as well as the law. This court’s revisionary power is derived from section 362 to 365 of theCriminal Procedure Codewhich state:-“362. 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 proceedings of any such subordinate court.363. (1)A subordinate court of the first class may call for and examine the record of any criminal proceedings of a subordinate court of a lower class than it and established within its local limits of jurisdiction, for the purpose of satisfying itself as to the legality, correctness or propriety of any finding, sentence or order recorded or passed, and as to the regularity of the proceedings.(2)If a subordinate court acting under subsection (1) considers that a finding, sentence or order of the court of lower class is illegal or improper, or that the proceedings were irregular, it shall forward the record with its remarks thereon to the High Court.364. (1)In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may -(a)in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 354, 357 and 358, and may enhance the sentence;(b)in the case of any other order other than an order of acquittal, alter or reverse the order.(2)No order under this section shall be made to the prejudice of an accused person unless he has had an opportunity of being heard either personally or by an advocate in his own defence:Provided that this subsection shall not apply to an order made to the prejudice of an accused person unless he has had an opportunity of being heard either personally or by an advocate in his own defence:Provided that this subsection shall not apply to an order made where a subordinate court has failed to pass a sentence which it was required to pass under the written law creating the offence concerned.(3)Where the sentence dealt with under this section has been passed by a subordinate court, the High Court shall not inflict a greater punishment for the offence which in the opinion of the High Court the accused has committed than might have been inflicted by the court which imposed the sentence(4)Nothing in this section shall be deemed to authorize the High Court to convert a finding of acquittal into one of conviction.(5)When an appeal lies from a finding, sentence or order, and no appeal is brought, no proceeding by way of revision shall be entertained at the insistence of the party who could have appealed.365. No party has a right to be heard either personally or by an advocate before the High Court when exercising its powers of revision:Provided that the court may, when exercising those powers, hear any party either personally or by an advocate, and nothing in this section shall affect section 364 (2).”

8. The revisionary power of this court is discretionary but the same is to be exercised only in the clearest cases. It must also be exercised judicially. It is instructive that revision is concerned only with the legality, correctness and procedural propriety of the proceedings in the trial court but not the merits of the decision.

9. The trial magistrate exercised the power to summon the applicant under section 10(2) of the Magistrates Courts Act. That section vests a magistrate with jurisdiction to deal with contempt in the face of the court. Section 10(4) (b) of the Actfurther provides that: -“(4)In the case of criminal proceedings, the publication, whether by words, spoken or written, by signs, visible representation, or otherwise, of any matters or the doing of any other act which:(a)scandalizes or tends to scandalize, or lowers or tends to lower the judicial authority or dignity of the court;(b)prejudices, or interferes or tends to interfere with, the due course of any judicial proceedings; or(c)interferes or tends to interfere with, or obstructs or tends to obstruct the administration of justice, constitutes contempt of court.” (Emphasis mine)

10. It is therefore clear to me that in summoning the applicant the trial magistrate acted within her powers as according to the magistrate, the publication of the impugned article constituted contempt of court. This court expects that once the applicant appears before the trial magistrate, the magistrate shall afford her a fair hearing. Should that not be the case then the applicant shall have an automatic recourse to this court by way of Appeal as provided in section 7 of theMagistrates Court’s Act because section 365 of the Criminal Procedure Code provides that where there exists a right of Appeal one cannot approach this court by way of revision. This application is therefore not properly before this court and as no illegality in the proceedings is disclosed, it is dismissed.

11. As to whether after hearing the alleged contemnor and upon being satisfied that the conduct complained of amounts to contempt of court the trial magistrate can herself punish the contemnor as provided in section 10(6) of theMagistrates Court’s Act or whether the contemnor should be charged before another magistrate, I leave that to be determined by the Judge hearing the substantive application filed by the Kenya Union of Journalists in the judicial review division of this court.Orders accordingly.

SIGNED, DATED AND DELIVERED VIRTUALLY THIS 12TH DAY OF OCTOBER, 2022. E N MAINAJUDGE