[2023] KEHC 24958 (KLR)

Director of Public Prosecutions v Mutenyo; DCIO Kilgoris (Interested Party) (Criminal Revision E005 of 2023) [2023] KEHC 24958 (KLR) (7 November 2023) (Ruling)

Neutral citation: [2023] KEHC 24958 (KLR)

Republic of Kenya

In the High Court at Kilgoris

Criminal Revision E005 of 2023

F Gikonyo, J

November 7, 2023

Between

Director of Public Prosecutions

Applicant

and

Edwin Mutenyo

Respondent

and

DCIO Kilgoris

Interested Party

(From the Ruling delivered on 7th July 2023 by Hon. W.K.Kitur (SRM) in Kilgoris SPMCR. Misc. Case No. E022 of 2023)

Ruling

1. Revision has been sought of the ruling delivered on July 7, 2023 by the subordinate court dismissing the applicant’s preliminary objection ostensibly without considering it whatsoever.

2. The revision application is dated July 10, 2023 and the specific orders sought are;i.Spent.ii.Spent.iii.Spent.iv.That this court overturns the ruling of the subordinate court, in the said Kilgoris Miscellaneous Criminal Cause No. E022 of 2023, Edwin Mutenyo v Director of Public Prosecution and DCI Kilgoris, dismissing the applicant’s preliminary objection dated 14th June 2023. v.That this honourable court quashes the proceedings in the said Kilgoris Miscellaneous Criminal Cause No. E022 of 2023, Edwin Mutenyo v Director of Public Prosecution and DCI Kilgoris.vi.That each party to bear their costs.

3. The application is based on the grounds set out on the face of the application and the affidavit in support sworn by Emmanuel Ger Okeyo on July 10, 2023.

4. The applicant has set out the following grounds; that the subordinate court’s omission to consider the respondent’s own pleadings only, for the purpose of determining the preliminary objection was a glaring error on the part of the court; that the trial court faulted the applicant for failing to cite any provision of the law that explicitly prohibited the court from hearing and determining the main application. The court itself did not cite and/ or analyze any law that granted it jurisdiction to hear and determine an application for the release of items in possession of investigating agencies that have not been produced as exhibits. As a result, the trial court’s apparent conclusion that it had the original jurisdiction to grant such an order and the ultimate dismissal of the applicant’s preliminary objection on jurisdiction was erroneous and did not accord to law and established jurisprudence. That the court after dismissing the said preliminary objection recused himself from the matter and referred it to a different court for hearing, being orders/directions issued without jurisdiction. That the application is brought in a timely manner and in good faith.

5. In response to the application herein, the respondent filed a replying affidavit sworn on July 25, 2023.

6. The respondent contends that the trial magistrate was right in law and in fact in finding that the court had jurisdiction to hear the application before it for the release of the fertilizers in issue that has been in custody of the interested party. It cannot be said that the same court lacks jurisdiction merely because they were not produced as exhibits before the same court but were a subject of dispute to institute charges of being in possession of suspected stolen property in Kilgoris MCCR NO. 602/2022 R v Benjamin Mosbei Kuto & Anor, whose charges were withdrawn against the accused persons.

7. The respondent contends that the application does not fall among the grounds for review but rather an appeal.

8. The respondent contends that an examination of the record will confirm that there is no any manifest error, illegality, or impropriety that would justify interference by this court in the exercise of its revisionary jurisdiction.

9. The respondent contends that if the order of stay is allowed, he stands to suffer more harm and irreparable loss as fertilizers continue to deteriorate as they are not well kept and an infringement of his constitutional right to property.

Directions Of The Court 10. On July 12, 2023, this court upon consideration of the application dated 10. 07. 2023 and being satisfied on a prima facie basis issued the following orders;i.That the application is certified urgentii.That the proceedings and any orders made in Kilgoris Misc. Cr. Cause No. E022 of 2023 is hereby stayed pending the hearing and determination of this applicationiii.The file be remitted to this court for purposes of examining the record to be satisfied of its correctness and legality.

11. The application was canvassed by way of written submissions. Both parties have filed their respective submissions.

Applicant’s Submissions 12. The applicant submitted that the trial court lacks the jurisdiction to grant the main orders sought in the application before it. Since the investigating body withholding the respondent’s vehicle for whichever reason is a government institution and an arrest and charges have not been brought against anyone as yet, the more appropriate and legal way to seek redress, if any, on the grounds which they highlight in their application and the annexed affidavit, would be by a fair administrative action suit or a petition at the high court as provided in the Constitution and/or the Fair Administrative Actions Act. The applicant relied on Article 169(1)(a)(2), of the Constitution of Kenya 2010, section 26(1)(b), 177(a) of the Criminal Procedure Code, the supreme court in Samuel Kamau Macharia & Another v Kenya Commercial Bank, The Owners Of Motor Vessel Lillian ‘S’ V Caltex Kenya Limited (1989) KLR1. , Petroleum Institute of East Africa v Republic & 2 Others, (2021) eKLR , Jeremiah Kobia Munoror V Republic (2021] eKLR, Republic V John Nganga Mbugua [2014] eKLR,

13. The applicant submitted that the trial court misinterpreted the case of Mukisa Biscuit Co. v West End Distributors. The omission to consider the respondent’s own pleadings only for purposes of determining the preliminary objection was a glaring error on the part of the court. That the substantive responses by the applicant herein would be but extraneous to the determination of the preliminary objection.

14. The applicant submitted that the trial court in not find that the preliminary objection was properly raised at the earliest possible opportunity as required in law. The applicant relied on the case of the Owners of Motor Vessel Lilian ‘S’ V Caltex Oil (Kenya) Ltd [1989] eKLR.

15. The applicant submitted that the trial court’s ruling was draconian and impeded the applicant’s right to a fair hearing. The trial court held that the applicant and the interested party had to file substantive responses to the respondent’s application before a determination of the preliminary objection could properly be determined on the assumption that the correctness of the pleadings was draconian for all intents and purposes.

16. The applicant submitted that the court gave undue regard to procedural technicalities

17. The applicant submitted that the trial court erred in interpreting the scope of its jurisdiction. that the trial court faulted the applicant for failing to cite any provision of the law that specifically barred the court from hearing and determining the main application.

18. The applicant submitted that the transfer of the application to a different court was unlawful. The applicant relied on the cases of Adero & Another v Ulinzi Sacco Society Limited [2002] 1 KLR 577 quoted with Republic v Public Procurement Administrative Review Board Ex Parte Intertek International Limited; Accounting Officer, Kenya Bureau of Standards & 6 Others (2022) eKLR.

Respondent’s Submissions 19. The respondent submitted that the magistrate’s court is clothed with the jurisdiction to deal with the enforcement of the Bill of Rights. The respondent relied on the case of in the Matter of Interim Independent Electoral Commission (2011) eKLR, articles 23(2), 169(1)(a) (2) of the Constitution, section 8 of the Magistrate’s Court Act

Analysis And Determination 20. This application is for revision of the decision by a subordinate court.

Pertinent Matters a.Competence Or Appropriateness Of Revision 21. Questions touching on competence or appropriateness of revision proceedings have arisen-revision or appeal? But, the issues have close nexus to the broader subject on jurisdiction.

b.Authority To Hear Redress Of Violation Of Rights 22. The more profound question on jurisdiction proper is whether the trial court-subordinate court- has jurisdiction to hear applications for redress of violation of rights in the Bill of Rights. The linchpin arguments on this ground revolved around Section 8 of the Magistrates Court Act and article 165(2) of the constitution on the authority of the subordinate courts to hear applications for redress of violation of rights and fundamental freedoms in the Bill of Rights.

c.Forfeiture Of Instrumentalities Of Crime 23. Apart from jurisdictional questions, quite other profoundly argued issues included; forfeiture of instrumentalities and proceeds of crime. Appurtenant thereto also; retention of instrumentality or proceeds of crime by the investigating agency during investigation; restitution of property under section 177 and 178 of the CPC; production of exhibits in court and disposal thereto.

24. The arguments on and the matters raised above, and application of law, should help shape the kind of jurisprudence that is not ephemeral but enduring for present and future consumption within our legal system. Hopefully, the court will have occasion to consider these issues here or elsewhere.

25. But, the court will determine the revision on only one ground for reasons which will be apparent later.

Power Of Revision 26. The revisionary power of the High Court draws upon the supervisory jurisdiction of the court provided in Article 167 of the Constitution. The article provides: -(6)The High Court has supervisory jurisdiction over the subordinate courts and over any person, body, or authority exercising a judicial or quasi-judicial function, but not over a superior court.(7)For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.

27. Section 362 of the Criminal Procedure Code provides the power of the court ‘to 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 or order recorded and the regularity of any proceedings of any such subordinate court’.

28. Arguments have it that, article165(6) & (7) of the constitution is much wider and relates to ‘the record of any proceedings before any subordinate court or person, body or authority’. Section 362 of the CPCis only one of the elements of supervisory jurisdiction of the High court, and it relates to ‘the record of any criminal proceedings before any subordinate court’. Nevertheless, as Section 362 of the CPCis existing law, should be read in light of article 165(6) & (7) of the constitution ‘… and the High Court… may make any order or give any direction it considers appropriate to ensure the fair administration of justice’- but which, of course, should be context-dependent result.

29. Before concluding on whether revision is merited, quite eminent issues have been argued as set out in the ‘Pertinent Matters’ section. They are of nascent jurisprudence and would require a much serious treatment and careful shaping in a properly argued appeal or petition. Rather than, in a restricted procedure of revision. For these reasons and the nature of the decision which will become evident presently, the court said little or nothing substantial about these important jurisprudential points.

Correctness Or Regularity Of Proceeding 30. Be that as it may, it appears the trial court dismissed the preliminary objection without considering it whatsoever. The sole reason given by the trial court is that the applicant had not filed a replying affidavit. There is no requirement in law that a preliminary objection should be anchored in or supported by a replying affidavit. Affidavit provides evidence. A preliminary objection requires not probing of evidence to prove. A notice of preliminary objection setting out the objection should be sufficient and complete for purposes of consideration by the court against the pleadings by the plaintiff. Whether it is a true preliminary objection or its potency to dispose of the case is an altogether different thing- this is the determination the court makes upon due consideration of the objection.

31. Accordingly, the failure to consider and determine the objection, calls into question the correctness of the order and regularity of the ruling by the trial court thereby making the proceeding amenable to revision.

32. Consequently, the ruling by the trial court is set aside. The original trial court’s file be remitted back to the trial court other than the magistrate who made the ruling herein, for determination of the preliminary objection either independently or within the application before it.

33. This decision be served upon the trial court to dispose the relevant matters in the manner directed by the court.

34. Orders accordingly.

DATED, SIGNED, AND DELIVERED AT KILGORIS THROUGH MICROSOFT TEAMS ONLINE APPLICATION THIS 7TH DAY OF NOVEMBER 2023F. GIKONYO M.JUDGEIn the Presence of:Okeyo for DPPM/s Wekesa for Respondent