[2022] KEHC 10113 (KLR)

Director of Public Prosecutions v Chief Magistrates Court - Milimani Law Courts & another (Miscellaneous Criminal Application 416 of 2019 & Criminal Revision 265 of 2019 (Consolidated)) [2022] KEHC 10113 (KLR) (Crim) (16 May 2022) (Ruling)

Neutral citation: [2022] KEHC 10113 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Miscellaneous Criminal Application 416 of 2019 & Criminal Revision 265 of 2019 (Consolidated)

LN Mutende, J

May 16, 2022

Between

Director of Public Prosecutions

Applicant

and

Chief Magistrates Court - Milimani Law Courts

1st Respondent

Francis Nyagah Njeru

2nd Respondent

Ruling

1. This matter emanates from the Chief Magistrates Court Criminal Case Number 1998 of 2016, Republic -vs- Francis Nyagah Njeru, where the 2nd Respondent herein is charged with offences of forgery of a title document and deed plans; Procurement of deed plans; and, Malicious damage to the suit premises in issue.

2. During trial, as the Investigating Officer was adducing evidence, Counsel representing the 2nd Respondent objected to production of documentary evidence, an objection that was sustained by the trial court, therefore failing to admit several documents as evidence.

3. Consequently, the Applicant (Republic) filed two applications seeking revision of the order of the trial court. The gravamen of the applicant’s complaint is that secondary evidence, documents the Court refused to admit in evidence had previously been shared with the 2nd Respondent and marked for identification.

4. In response thereto, the 2nd Respondent averred that as long as the document is in existence and available, its contents must be proved by primary evidence and all witnesses who are to testify must be cross examined on the basis of primary evidence to avoid content import.

5. When the matter came up for hearing on the 11th December, 2019, by consent of both the Applicant and 2nd Respondent, both applications, Criminal Revision No.265 of 2019 and Misc. Application No. 416 of 2019 were consolidated. Ms. Nyauncho learned Counsel for the Applicant canvassed the application and Mr. Osundwa learned Counsel for the 2nd Respondent replied thereto. Following the oral submissions, Kimaru J. delivered a Ruling dated 11th December 2019, Where he stated as follows:“RulingIt is apparent that some documents supplied to the defence during pre-trial are not the same documents that the prosecution sought to have produced as exhibits. Some of the documents contain additional information which the defence did not have an opportunity to interrogate and cross examine the witnesses. In the circumstances therefore, the court hereby orders the prosecution to supply the defence with the documents that they intend to produce as exhibits within seven (7) days of today’s date. If the supply of documents shall necessitate the recall of prosecution witnesses who have already testified, then the said witnesses shall be recalled to identify the documents and be cross-examined on the same. It is so ordered.Dated at Nairobi this 11th Day of December 2019. ”

6. Seven days having lapsed prior to compliance of the court order, the matter came up before the Senior Deputy Registrar, Hon. J. Kamau on the 3rd February, 2020, who caused it to be mentioned before the trial court on 6th February, 2020; and time within which the order was to be complied with was extended by thirty (30) days. Subsequently Kimaru J. directed thus:“…Mention on 5/3/2020. The A Book, Auditor Register, IR register, Deed Plan Register, and Verification register to be availed to Mr. Osundwa’s perusal and if necessary copying of the relevant pages, at 19th Floor NSSF Building, ODPP office at 2. 00pm on 5/3/2020. ”

7. However, Counsel for the 2nd Respondent declined to receive documents as directed by the court and the Hon. Judge fixed a date for hearing, but, later proceeded to make further orders compromising the matter. When I took over the matter, Counsel Osundwa appearing for the 2nd Respondent pointed out that he did not agree with the Ruling given by the learned Judge but he agreed that the issue of the register had been dealt with.

8. In the result, the 2nd Respondent instructed Ms. Anyango, learned Counsel who at the outset agreed to comply with the Ruling of the Court but later on changed her decision following instructions of her client (2nd Respondent). She declined to receive the documents as directed by the court. She argued that the decision of the court had been overtaken by events and was not a substantive order which calls for hearing and determination of the applications. Further that the issue of production and admission of documents by the trial court is purely an issue of discretion such that for the court to revise the same would amount to sitting on appeal.

9. The applicant was not contended with the decision of the trial court which allowed an objection to produce documents which were entries made on the Auditor’s Register in respect of IR Number 176232 and 176234, Original Deed Plan Register, Original A book Register and Verification Register. Further, to the Ruling where the learned Judge referred to documents, on the 3rd March,2020, the learned Judge was specific as to which particular documents were to be availed for perusal.

10. The Ruling of the court and subsequent orders are clear. Issues raised were dealt with substantively. If the 2nd Respondent disagreed with the order of the court as expressed both by word and conduct he should have appealed. The learned Judge having rendered a decision regarding issues raised, I lack the power to re-examine the decision. Therefore, the lower court file shall be placed before the trial court for purposes of compliance with the order of this court and disposal of the case.

11. It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY, THIS 16TH DAY OF MAY, 2021. L. N. MUTENDEJUDGEIN THE PRESENCE OF:Mr. Kiragu for ODPP/ApplicantMs. Anyango for 2nd RespondentCourt Assistant - Mutai