[2022] KEHC 424 (KLR)

Craft Silicon Limited v Republic; Namai & 5 others (Accused) (Criminal Revision E30 of 2021) [2022] KEHC 424 (KLR) (5 May 2022) (Ruling)

Neutral citation: [2022] KEHC 424 (KLR)

Republic of Kenya

In the High Court at Kiambu

Criminal Revision E30 of 2021

MM Kasango, J

May 5, 2022

Between

Craft Silicon Limited

Applicant

and

Republic

Prosecution

and

Michael Martin Namai

Accused

Josephine Namenya Obubi Victoria

Accused

Gideon Mwangi Kabaru

Accused

Crispine Atieno Siaji

Accused

Stephen Mathnge Kiragu

Accused

Titus Mbithi Muindi

Accused

(It was a Criminal Revision Application from the Ruling of 26th April, 2021 at Kiambu Chief Magistrate’s Court (Hon. P. Gichohi, (Mrs) CM) in Criminal Case No. 1237 of 2018)

Ruling

1. Section 362 of the Criminal Procedure Code (CPC) provides as follows:“ 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.

2. That Section has been invoked by Craft Silicon Limited(hereinafter the complainant). The advent of what is before this Court is the criminal trial before Kiambu Chief Magistrate’s court where 6 persons, the respondents herein, were charged with various criminal offences. The applicant hereof is the complainant in that criminal case. The respondents pleaded not guilty to those charges. The complainant instructed a counsel to represent it at the trial. By an oral application made by the complainant’s counsel on 8th March, 2021 the complainant sought leave of the trial court to participate in the criminal trial. This is how that application by the complainant was captured by the trial magistrate in the impugned Ruling of 26th April, 2021:-“ … Mr. Nyanchoka made his oral application seeking leave to participate in the proceedings through direct examination in chief and re-examination of the complainant’s witnesses. On this we relied on Article 50(2) ofthe Constitution as well as Sec. 9(2) and 9(3) of the Victim Protection Act and the parameters set by the Supreme Court in Joseph Lendix Waswa Vs. Republic (2020) eKLR.He told the court that he did not wish to take over the role of the prosecutor in these proceedings but their role was to make the court understanding both the technical and factual issues in this case in order to allow the court make a factual and sound decision …Further, he submitted that it was the discretion of the court to determine the extent of the said participation.”

3. That oral application was not opposed by prosecution counsel for Director of Public Prosecutions (DPP), Miss Mbevi. The application was however opposed by the respondents who are the accused before the trial court.

4. The trial court considered the provisions of Section 9(2) and 3 of the Victim Protection Act(VPA) and determined that the complainant was not a victim as per the definition of victim in VPA. The trial court therefore revoked the earlier orders it had issued permitting the complainant to restricted participation in the trial.

5. That Ruling led the complainant to approach this Court for Revision by an application of Notice of Motion dated 3rd June, 2021. The two prayers in that application which are for consideration are:“ That this honourable Court be pleased to call and examine the record of proceedings before the trial court for purpose of satisfying itself as to correctness, legality and propriety of the Ruling and consequential orders delivered on 26th April, 2021 on complainant’s oral application raised on 8th March, 2021. Thatthis Honourable Court be pleased to review, vary, reverse and/or alter the trial court’s orders and permit the complainant’s counsel to actively participate within the trial court proceedings on specific terms …”

6. That application is supported by an affidavit of Nancy Wacera the complainant’s legal manager. She deponed that the complainant was a victim of an economic cyber-crime which led to economic loss of million shillings and which is the subject of the charges the respondents are facing before the trial court. That the complainant having appointed counsel to represent it and because “the criminal legal landscape” of this jurisdiction in respect to victims had changed that the complainant has the right to be represented and participate at the trial. It was further deponed that the complainant sought to participate at the trial for the reason that it was a direct victim of the offences before the trial court; that the trial court has a statutory duty to consider complainant’s views through its appointed representatives; and that the complainant’s counsel played a complementary role to that of the prosecutor to highlight complainant’s view which would include, “posing questions to witnesses” within the control of the court to file submissions and raise issues on points of law. The deponent further stated that the complainant did not intend in such participation to usurp the role of the prosecution nor to delay prosecution of the criminal case.

7. By its written submissions before this Court, the complainant submitted that under the constitution, the right to be heard ensures all persons, complainant and accused alike are afforded fair trial and equal protection and benefit of the law. It is on that basis the complainant seeks orders to safeguard its constitutional right to be heard and assist the trial court.

8. The complainant cited the case Wesley Kiptui Rutto & Another Vs. Republic (2017) eKLR where the court stated:-“ 16. I find that the revisionary jurisdiction exists in cases of all orders, interlocutory or final, of the subordinate court, save that an order of acquittal may not be revised to an order of conviction. Moreover, the Court may exercise its jurisdiction to revise an order suo moto, despite existence and or exercise of right of appeal by the party who brings the matter requiring revision to the attention of the court by application for revision or otherwise. This was the holding of H.M. Supreme Court of Kenya (Rudd, Ag. CJ., Connell and Pelly Murphy, JJ.) in R. v. Ajit Singh S/o Vir Singh [1957] EA 822, 824 …This decision supports the submission by the applicants that the High Court’s jurisdiction for revision is not ousted by possibility of an appeal. As emphasized in the Ajit Singh and the Muhari bin Mohd Jani decisions, the Court has a wide discretion to revise orders of the trial court and the discretion is to be exercised on a case by case basis having regard to the different circumstances of each case.’”

9. The complainant faulted the trial court for its failure to acknowledge in the impugned Ruling the discriminatory definition of victim in VPASection 2.

10. The trial court by its impugned Ruling found the definition of victim under Section 2 of VPAto be intransient. The trial stated thus in that Ruling:-It is therefore to argue that a complainant is not necessarily a victim …Unfortunately, this Court cannot change this provision as legislation is the preserve of Parliament.It is important to note that the victim (appellant) in Joseph Lendex Waswa vs. Republic (2020) eKLR case was a natural person who was dissatisfied with the direction given by High Court …”

11. The complainant argued that the trial court failed, by its Ruling to “adopt a purposive and equitable interpretation of the law.” Complainant referred to Constitutional provisions which assured rights of equality before Law such as Article 10, Article 50 and Section 9(2) VPA and stated the trial court’s definition of victim was simplistic.

12. This Revision is opposed by two respondents.

13. The 2nd Respondent by the replying affidavit dated 5th October, 2021 complained of the delay in the prosecution of her case before the trial court which she attributed to this Revision. She further deponed that the complainant would be a second prosecutor next to the DPPcontrary to Article 157 of the Constitution and that the complainant cannot benefit from the provisions of Section 9(2) of the VPAin view of the fact that it was not a natural person.

14. By her submissions, the 2nd Respondent stated that the complainant failed to show any illegality by the trial court’s Ruling justifying the invocation of Section 362 of the Criminal Procedure Code. That the impugned Ruling correctly applied the law. According to the 2nd Respondent, the complainant ought to have appealed and not sought Revision of the said ruling if it was aggrieved.

15. The 2nd respondent further submitted that the complainant “does not fall within the definition of a victim under the Victim Protection Act.” She supported that submission by referring to Section 2 of the VPA which defines victim as a natural person who suffers injury, loss or damage as a consequence of an offence. The respondent submitted that the complainant being a corporate entity it was not a natural person. The 2nd Respondent cited the following case of Kenneth Njiru Njagi Vs. Republic; Lineal Company Limited & Another(Applicant) (2021) eKLR where Justice C.W. Githua held as follows:“ 30. That said, in determining whether to allow an applicant participation in a trial or in an appeal either in person or through an advocate, the court must be satisfied that the applicant is indeed a victim within the meaning of Section 2 of the VPA. …

31. Applying the above principles to the instant case, it is my finding that though the 1st applicant suffered financial loss in the transaction that resulted in the prosecution and conviction of the appellant, being a corporate entity, the 1st applicant does not fit the description assigned to a victim in Section 2 of the Act which defines a victim as a natural person who suffers loss, injury or damage as a result of an offence. For this reason, I find that the 1st applicant does not qualify to be a victim and is not entitled to participate in the hearing of the appeal.

32. The 2nd applicant being a natural person who was one of the complainants in the trial qualifies to be a victim and has a right to participate in the appeal.

16. The 3rd Respondent in opposition to the Revision application swore an affidavit and deponed that the application is an abuse of the court process terming the prayer, in the application seeking review, variation, reversal and or alteration of the impugned Ruling as misplaced because it had not been argued before the trial court. That the wide participation in the trial sought by the complainant before the trial court, was different to what it now states before this Court as its requests to participate at the trial.

17. The 3rd Respondent also argued that there was no order issued by the trial court which this Court can consider, and review as provided under Section 362 CPC. That further, the complainant seeks to challenge the merit and not the correctness of the impugned Ruling since there is no error, and that therefore, the complainant is seeking an appeal. The 3rd Respondent supported this argument by citing the case Joram Opala Otieno T/a Mactebac Contractractors & 3 Others Vs. Director Of Public Prosecutions (2021) eKLR:-“ 28. In dismissing the application for revision, the court in George Aladwa Omwera v R (supra) concluded that the revisionary jurisdiction: “…is only exercised to correct the manifest error in the order of the subordinate courts.” The powers of revision vested in the High Court should not be exercised in a manner that turns the court exercising the powers of revision into an appellate court, nor should it be exercised mainly because the lower court has taken a wrong view of the law or misapprehended the evidence tendered.”

18. This Respondent also submitted the complainant not being a natural person was disqualified to be considered a victim. The Respondent relied on the decision of Justice GW. Ngenye-Macharia in the case Kimuri HousingCo.Ltd & Margaret Wambui Ngugivs.Director ofPublic Prosecutions(2017) eKLR thus:-“ Before I proceed, it is important to address the issue of whether the Applicants qualify to be victims under the Act. This is in light of Mr. Ogeto’s submission that the 1st Applicant, being a Limited liability company, does not meet the threshold of the definition of a victim under the Act. More specifically, that a victim must be a natural person.A victim is defined under Section 2 as:-… any natural person who suffers injury, loss or damage as a consequence of an offence”“ To the extent of this restrictive definition, I concur with Mr. Ogeto that a limited liability company is not, per se, a natural person. …That said though, it is trite that a Limited liability company is a legal person capable of suing and being sued. That explains why Kimuri Housing And Co. Ltdis named as the complainant in the charge sheet. For purposes of evidence at the trial, the 2nd Applicant in her capacity as its director testified. In view therefore, it is clear that the definition accorded to who a victim is under the Act is narrow and restrictive. It should be broadened so as to comprise a legal person. It seems that the Act failed to envisage situations where legal persons can sue and be sued in criminal proceedings, yet this is a common phenomenon.”

Analysis and Determination 19. There are two issues in my opinion that come out of the submissions made by the parties. These are:(a)Is the complainant a victim within the meaning in VPA?(b)If the answer to (a) above is in affirmative, should the impugned Ruling be reversed?

ISSUE (a) 20. Section 2 of VPA defines victim as:Means any natural person who suffers injury loss or damage as a consequence of an offence.”

21. The Mozley & Whiteley’s Law Dictionary 12thEditiondefines Natural Person as:-Person in the ordinary sense of the word, as opposed to artificial person of corporation.”

22. The complainant is a corporation. It therefore would follow that the complainant, per se is not a natural person. But what issue (a) calls this Court to determine is whether there was a natural person who was a victim of the crime, the subject of the trial before the Kiambu Chief Magistrate’s court.

23. I will respond to the first issue by referring to the case cited to this Court Joseph Lendrix Waswa vs. Republic (2020) eKLR. That case was an appeal before the Court of Appeal following the High Court granting permission to the father of the deceased to participate in the trial of the accused who was charged with the murder of that, his son. The Court of Appeal while considering that appeal from the High Court’s decision in the case Joseph Lendix Waswavs. Republic (2019) eKLR concluded thus:Ultimately, we are satisfied for reasons stated in the foregoing paragraphs that the impugned rights given by the trial court to the victim of the offence who is the father of the deceased are in conformity with the constitution and the Victim Protection Act.”

24. The accused in that appeal, not being satisfied with the determination of the Court of Appeal further appealed to the Supreme Court in Petition No. 23 of 2019 Joseph Lendrix Waswa vs. Republic (2020) eKLR. The Supreme Court was alive to the fact that the victim in the appeal before it was the father of the deceased and not the deceased son himself. What I wish to underscore by this discussion is that a victim, in as far as VPA is concerned is not always necessarily the one who directly suffers actual harm, for example in that case, the murdered son was not the only victim. Rather, victim includes the family members of that deceased. It can be shown that they suffered injury or damage as a consequence of their son being murdered. It is on that basis that the father of the deceased’s son requested the High Court’s permission to participate in the trial of the accused. As stated before, the High Court granted him that permission which order was upheld up to the Supreme Court.

25. Flowing from that discussion, it ought to be noted that it is a legal principle that a corporation is treated as distinct legal entity from its shareholders. When that corporation, however, suffers economic loss as a consequence for example of cybercrime as it happened in the case at hand, the real victim of such an offence is the shareholder. The harm is done to a shareholder personally as a result of loss in the company’s share value. It follows that corollary to the example I used above of a murder case of who the victim is; when a corporation suffers as a result of a crime where there is loss which affect the profitability of a corporation, it is the shareholder who is a victim. And although a shareholder can either be a person or a corporation, even where it is a corporation is a shareholder of that other corporation, there is always a natural person who is a shareholder somewhere down the line and it is that one who suffers the consequences of a crime committed against the corporation.

26. Further, it is important to note that Articles 50(9) of the Constitutionmandated parliament to enact legislation to provide for the protection rights and welfare of victims of offences. That Article of the Constitution does not discriminate on who can be considered to be a victim.

27. Section 9(1) of VPArecognizes the involvement of a victim in a trial in particular, subsection (a) of that Section states that:-“ A victim has a right to:-(a)Be present at their trial either in person or through a representative of their choice;”

28. That right was recognized by Supreme Court in Petition No.23 of 2019 Joseph Lendrix Waswavs. Republic(supra) when it stated thus:-“Although the adversarial criminal trial process is a contest between the State represented by the DPP, and the accused, usually represented by defence counsel and the traditional role of victims in a trial is often perceived to be that of a witness of prosecution, it is without doubt that flowing from both the constitution and the VPA and in particular Section 9(2)(a) of the VPA that a victim too, has the right to participate in criminal proceedings.

29. The constitution under Article 27 frowns on discrimination. In particular, I will reproduce Article 27(1) as follows:-“Every person is equal before the law and has the right to equal protection and equal benefit of the law.”

30. With above provision in mind, it is not correct to treat shareholders who suffer from the consequence of an economic crime and who are not excluded under Article 50(9) of the Constitutiondifferently from other persons, such as family members of a person who is murdered.

31. It is in view of the above discussion that I dissent with the holdings in the cases Kimuri Housing Co. Ltd & Another Vs. Director Of Public Prosecutions(supra) and Kenneth Njiru Njagi Vs. Republic; Lineal Company Limited & Another (Applicants) (supra). I find and hold that the legislature in terming victim as a natural person could not have intended to discriminate against shareholders of a corporation just because they are in the shadow of that corporation.

32. It is because of the above that I am satisfied that the trial court was not correct in finding that the complainant was not a victim as defined in VPA. Indeed, just as there was a natural person who was a victim in the case Jospeh Lendrix Waswa vs Republic (supra), there is/are natural person(s) in the case before the trial court, that is, the shareholders.

ISSUE (b) 33. It is now fitting to consider the second issue above. This issue arose from what the trial court stated in its Ruling in paragraph 31 as follows:-“The argument by the applicants in the level of participation appears jumbled up. While Mr. Kitunyi says their participation is to aid the court and the accused persons by bringing up the background of the matter and to make the court understand both the technical and the factual issues in this case in order to allow the court to make a factual and sound decision, as to whether to put the accused persons on their defence, he admits that as lawyers they are laymen in the field, the subject to the charges the accused persons are facing before this Court. It is clear that no value would be added by the applicants putting direct questions on the witnesses, other than causing confusion and delay in this case and perhaps to appear “active”.”

34. The above is not in accordance with the Supreme Court determination in the case of Jospeh Lendrix WaswavsRepublic (supra), where the Supreme Court affirmed the right of a victim to participate in a trial to assist the judge or magistrate “to obtain a clear picture of what happened (to them) and how they suffered, which the judge may decide to take into account.” The Supreme Court in the afore stated case said thus:“71. Once a victim or his legal representative makes an application to participate in a trial, it is the duty of the trial court to evaluate the matter before it, consider the victim’s view and concern their impact on the accused person’s right to a fair trial, and subsequently, in the judge’s discretion, determine the extent and manner in which a victim can participate in a trial. Since participatory rights are closely related to the rights of the accused and the right to a fair and expeditious trial, they should be granted in a judicious manner which does not cause undue delay in the proceedings and thus prejudice the rights of the accused.”

35. With the above decision in mind, the trial court should have evaluated the complainant’s application to participate in the trial. The impugned Ruling did not reveal such consideration and the determination that was made by the trial court, to shut out the complainant from participating in the trial does indeed attract the revision by this Court.

36. Contrary to what was submitted by the respondents, what came out of the Ruling of the trial court was an order which Mozley & Whiteley’s Law Dictionary 12thEditiondefines order as:“ … the word is frequently applied to those acts of court of justice which follows the rendering of a decision, either where the decision does not dispose of the merits of the case before them, eg in interlocutory proceedings, or where it does, in which case the order will normally be one which provides a successful plaintiff which a remedy…”

37. That definition of the word ‘order’ sufficiently respondents to the respondents’ argument that the trial court’s Ruling did not amount to an order capable of being revised as provide under Section 362 and 364 CPC.

38. Respondents also erred to argue that what the complainant has brought to this Court was an appeal. By virtue of Section 362 and 364 CPC this Court is afforded revisionary power to correct or prevent miscarriage of justice of orders made by the subordinate court. The complainant has requested this Court by the application before court, to correct/reverse the trial court’s order made by the impugned Ruling. As discussed above, this Court does find that the order of the trial court requires to be revised/corrected.

39. Accordingly, the order of the trial court is hereby revised as provided under Section 362 and 364 CPCand the same is hereby set aside. It is substituted with an order that the complainant is a victim as envisaged in VPA. The mode of participation of the complainant shall be decided by the trial court after the trial court does consider the submissions of the parties and bearing in mind the holding and the guidelines of the Supreme Court in the case Jospeh Lendrix WaswavsRepublic (supra).

Disposition 40. The Ruling and Order made in Kiambu Criminal Case No. 1237 of 2018 on 26th April, 2021 is hereby set aside. The complainant is a victim as envisaged in the Victim Protection Act.

41. The complainant shall present a fresh application before the trial court for permission to participate at the trial.

42. At the reading of this Ruling, a mention date shall be fixed before the Kiambu Chief Magistrate for the Kiambu Criminal Case No. 1237 of 2018 for directions.

43. Orders accordingly.

RULING DATED AND DELIVERED AT KIAMBU THIS 5TH DAY OF MAY, 2022. MARY KASANGOJUDGECoram:Court Assistant: MouriceFor Applicant: - not presentFor: Republic:- KasyokaFor: Michael Martin Nama 1st Respondent: Present in personFor: Josephine Namenya 2nd Respondent:Mr. Andrew KabuguFor: Gideon Mwangi Kabaru 3rd Respondent: Mr. Thige AdvocateFor: Crispine Atieno Siaji 4threspondent:Present in personFor: Stephen Mathnge 5th Respondent:not presentFor: Titus Mbithi Muindi 6th Respondent: Not presentCOURTRuling delivered virtually.MARY KASANGOJUDGE