[2022] KEHC 12972 (KLR)

Chesimei & another v Director of Public Prosecutions (Miscellaneous Criminal Application E039 of 2022) [2022] KEHC 12972 (KLR) (19 September 2022) (Ruling)

Neutral citation: [2022] KEHC 12972 (KLR)

Republic of Kenya

In the High Court at Eldoret

Miscellaneous Criminal Application E039 of 2022

EKO Ogola, J

September 19, 2022

Between

Lazaro ChirChir Chesimei

1st Applicant

Chesimei Kisiangani Rueben

2nd Applicant

and

Director of Public Prosecutions

Respondent

Ruling

1. Before me for determination is the Applicants’ Notice of Motion dated May 23, 2022 seeking the following orders that: -1)Spent.2. Pending the hearing and determination of this application, this honourable court be pleased to stay the ruling of the learned magistrate directing the applicants to take plea on May 26, 2022. 3.The honourable court be pleased to call for and examine the record of proceedings in Senior Principal Magistrate’s Court at Iten, Iten Criminal Case no E404 of 2022 (Republic vs Lazaro Chirchir & Another) for the purpose of satisfying itself of the correctness, legality and propriety of the court’s ruling made on May 19, 2022 by Hon Caroline R T Ateya Senior Resident Magistrate.4. The honourable court be pleased to revise, vary, reverse and or alter the orders of the Senior Principal Magistrate’s Court at Iten, Iten Criminal Case no E404 of 2022 (Republic vs Lazaro Chirchir & Another).5. The court be pleased to make any other orders that it deems fit in the interest of justice.

2. The application is premised on grounds that: -a)The applicants shall suffer substantial loss.b)Sufficient cause exists to warrant the grant of the orders sought.c)The application has been made without unreasonable delay.d)The court has unfettered discretion to allow this instant application in the interest of justice.

Applicants’ Case 3. The application is supported by the affidavit of Chesimei Kisiangani Rueben sworn on May 23, 2022. He deposes that he is a licenced commercial charcoal dealer who buys wattle trees from farmers and harvests charcoal from farms for commercial purposes which business he has engaged in for many years and has a licence for the year 2022 to that effect. On February 1, 2020 he purchased wattle trees from one Abraham Kipketer Tanui situated at Ainabkoi area for the sole purpose of making charcoal. That from the period between the month of March to the month of April, he harvested 19,000/= bags whose value is kshs 3,000,000/=and was issued with certificate of origin to that effect. The 2nd applicant further deposed that he was unable to transport the said charcoal to Kakamega, Mbale and Kisumu due to the lack of a movement permit normally issued by the Conservator of the Kenya Forest Service who was not issuing movement permits for charcoal at the time due to the moratorium that barred charcoal movement. Given that the said 19,000 bags of charcoal were wasting away due to heavy rainfall being experienced at the time and were also being stolen as it was difficult to secure them in their current location. This prompted him to file an application dated May 5, 2022 in which he sought for an order of the court that would allow him to transport the said charcoal being Misc Civil Application no 60 of 2022 which order was granted.

4. The 2nd applicant maintains that his livelihood and that of his family depends on selling charcoal as a licenced commercial charcoal dealer. On May 17, 2022 while the applicant and his driver were lawfully transporting the said charcoal pursuant to the court order he had obtained, they were arrested and charged with the offence of causing movement of charcoal and charcoal products without authority and contrary to rule 14 (1) A as read with rule 14(6) and rule 20 of the Forest (Charcoal) Rules 2009 and section 77 of the Forest Conservation and Management Act while being in possession of a lawful order.

5. The 2nd applicant contends that the charge against him and his driver is indeed malicious and uncalled for.

6. The 2nd applicant’s case is that following their arrest, they were presented before the Senior Principal Magistrate’s Court at Iten vide Iten Criminal Case no E404 of 2022 to take plea and before taking of plea they filed an application seeking to be discharged under section 89 (5) of the Criminal Procedure Code for reasons that there was a lawful order issued on May 5, 2022 that permitted them to transport the said charcoal. The 2nd applicant deposed that at the lower court their application to be discharged was declined and the trial magistrate deferred their plea taking to May 26th May, 2022.

7. Being dissatisfied with the ruling of the lower court, the applicants are now before this court seeking to review the order made by the lower court on May 19, 2022.

Respondent’s case 8. Ms Okok, learned prosecution counsel filed Grounds of Opposition dated July 5, 2022 citing the following grounds: -1)That article 157 (6) of the Constitution of Kenya states that the Director of Public Prosecutions exercises state powers of prosecution and may:“Institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed.”2)That further article 157 (10) of the Constitution provides:“The Director of Public Prosecutions shall not require the consent of any person or authority for the commencement of criminal proceedings and in the exercise of his powers or functions, shall not be under the direction or control of any person or authority.”3)That the decision to charge the applicants in Iten Senior Principal Magistrate’s Court Criminal Case Number E404 of 2022 was based on sufficiency of evidence with a realistic prospect of conviction.4)That the prosecution of the applicants was instituted with reasonable and probable cause and was not actuated by any malice from the respondent who independently reviewed the evidence and made a decision to charge based on the fact there was incriminating evidence connecting the Applicants to the offence charged in Iten Senior Principal Magistrate’s Court Criminal Case no E404 of 2022. 5)That prosecution of the applicants was motivated by the respondent’s obligation to ensure that public interest is served through prosecution of a complaint where there is evidence indicating a realistic prospect of conviction and for the applicants to have the opportunity to defend themselves in a court of law.

6)That the applicants were charged with an offence known in law and their application to be discharged under section 89 (5) of the Criminal Procedure Code was duly rejected by the trial magistrate as the charge sheet was not defective and the offence they have been charged with is anchored in law. The charge sheet is properly crafted and consistent with sections 134, 136 and 137 of the Criminal Procedure Code.7)That the charge sheet was duly registered in court and the allegation by the applicants that they had a valid court order allowing them to transport charcoal was duly rejected by the trial magistrate as the same did not amount to a valid movement permit as provided for under rule 14(1) A of the Forest (Charcoal) Rules 2009. 8)That there was no evidence that the said court Order had been served upon the respondent or the conservator of forest of the Kenya Forest Service especially because the said order was obtained ex-parte.9)That the applicants have failed to disclose any impropriety, illegality or incorrectness in the ruling made by the trial magistrate.10)That the trial magistrate properly exercised her discretion in refusing to allow the applicant’s application under section 89 (5) of the Criminal Procedure Code and directing that the applicant’s take plea.11)That the trial process starts at the point of plea taking and this application is a desperate attempt by the applicants to stop the trial process.12)That this application is capricious and an abuse of the court process intending to delay the prosecution and any consequential criminal process by engaging in frivolous side shows.13)That this application is an afterthought, misconceived, unfounded in law, frivolous and a gross abuse of court process.

9. The application was canvassed by way of written submissions. Both parties filed their submissions.

Determination 10. I have accordingly considered the application, the grounds of opposition and respective rival submissions. The only issue for determination is:Whether the applicants have made a reasonable case for reviewing and or setting aside the ruling by Hon Caroline R T Ateya delivered on May 19, 2022.

11. The applicable law for review, setting aside and/or varying court orders is found under the provisions of section 80 of the Civil Procedure Act, cap 21 and order 45 (1) & (2) of the Civil Procedure Rules, 2010. A clear reading of these provisions indicates that section 80 is on the power to do so while order 45 sets out the rules on doing it.Section 80 provides: - any person who considers himself aggrieved:-a)By a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; orb)By a decree or order from which no appeal is allowed by this Act, may apply for a review of judgement to court which passed the decree or made the order and the court may make such order thereto.Order 45 (1). States as follows: - Any person considering himself aggrieved:-a)By a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; orb)By a decree or order from which no appeal is allowed by this Act, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for review of judgement to the court which passed the decree or made the order without unreasonable delay”

12. In the present case, the 2nd applicant contends on that February 1, 22 he got into agreement with one Abraham Kipketer Tanui for the sole purposes of harvesting charcoal from his farm situate at Ainabkoi area. The 2nd applicant deposed that he was able to harvest 19,000 bags of charcoal between the months of March and April but was not able to transport the same as the conservator of Forests was not issuing movement permits for charcoal although the moratorium that had barred movement of charcoal had been lifted in 2021. The 2nd applicant argued that in light of the foregoing the subject charcoal begun wasting away and this prompted him to seek the intervention of the court where he was granted orders that allowed him to transport the charcoal. However, on May 15, 2022 while the applicant and his driver were transporting the said charcoal they were arrested and charged with the offence of causing movement of charcoal and charcoal products without authority and contrary to rule 14 (1) (a) as read with rule 14(6) and rule 20 of the Forest (Charcoal) Rules 2009 and section 77 of the Forest Conservation and Management Act at the Iten Senior Principal Magistrate Court.

13. The respondent on the other hand contends that the Applicants did not follow the requisite procedures for obtaining a movement permit before transporting the said charcoal.

14. Regulation 14 of the Forest (charcoal) Rules, 2009 under which the applicants were charged stipulates as follows:“(1)No person shall, move charcoal or charcoal products from one place to another unless –(a)he is in possession of a valid charcoal movement permit issued under these Regulations and is operating in conformity with the terms and conditions of such permit; and(b)he has a certificate of origin for the charcoal the subject of the charcoal movement permit duly signed by the relevant association or person from whom charcoal is to be obtained; or(c)he has a receipt from the vendor.

15. Rule 14 (6) of the said regulations, on the other hand, states as follows:“Any person who contravenes the provisions of these regulations commits an offence.”

16. Regulation/rule 20 provides for a general penalty in the following terms:“Any person who contravenes the provisions of these regulations for which no specific penalty is provided commits an offence and is liable to a fine of not less than ten thousand shillings or an imprisonment for a term not exceeding three months.”

17. From the facts before court it is not disputed that the applicants did not obtain a movement permit as prescribed under the law. The applicants have argued that the conservator of forest was not issuing movement permits at the time even though the moratorium barring the transportation of charcoal had been lifted. It is indeed true that the applicants vide Eldoret CMCC Misc Civil Application no 60 of 2022 obtained a court order that allowed them to transport the said charcoal.

18. When the applicants were arrested, they sought to be discharged under section 89 (5) of the Criminal Procedure Code for reasons that there was a lawful order that had been issued on May 5, 2022 that permitted them to transport the said charcoal.

19. I have keenly perused the proceedings at the lower court and I note that as much as the applicant argued that they had obtained a court order allowing them to transport the said charcoal, they did not adduce any evidence to the effect that the forest conservator had been notified of the said order. While appreciating that court orders must be obeyed, in the circumstances of this case there was no evidence whatsoever that the said order had been served on the forest conservator. Bearing in mind that the orders in question had been obtained ex-parte the applicants had the duty of ensuring that the same were properly served upon the forest conservator. Further the legality of that court order would most appropriately be made by the trial court, and this court should not interefere with the proceedings in the trial court. The trial magistrate was therefore not bound to discharge the applicants under the provisions of section 89 (5) of the Criminal Procedure Code, but was entitled to proceed with the trial to enable the applicants prove their innocence in court.

20. Flowing from the above, it is clear that this instant application does not meet the threshold to warrant review/setting aside of the ruling that was delivered on May 19, 2022 at Iten Senior Principal Magistrate’s Court by Hon Caroline R T Atenya. If the applicants were indeed dissatisfied by the said ruling, they should have instead preferred an appeal.

21. Accordingly, the applicant’s application dated May 23, 2022 is hereby dismissed with costs.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 19TH OF SEPTEMBER 2022. E K OGOLAJUDGE