[2023] KEHC 24933 (KLR)

Director of Public Prosecutions v Wambura; DCIO Lolgorian (Interested Party) (Criminal Revision E004 of 2023) [2023] KEHC 24933 (KLR) (7 November 2023) (Ruling)

Neutral citation: [2023] KEHC 24933 (KLR)

Republic of Kenya

In the High Court at Kilgoris

Criminal Revision E004 of 2023

F Gikonyo, J

November 7, 2023

Between

Director of Public Prosecutions

Applicant

and

Denis Isire Wambura

Respondent

and

DCIO Lolgorian

Interested Party

(From the Ruling delivered on 7th July 2023 by Hon. W.K. Kitur (SRM) in Kilgoris SPMCR. Misc. Case No. E015 of 2023)

Ruling

1. Revision has been sought of the ruling delivered on 07. 07. 2023 by the subordinate court dismissing the applicant’s preliminary objection ostensibly without considering it whatsoever.

2. The revision application is dated 10. 07. 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. E015 of 2023, Denis Isire Wambura v Director of Public Prosecution and DCI Lolgorian, dismissing the applicant’s preliminary objection dated 16th May 2023. v.That this honourable court quashes the proceedings in the said Kilgoris Miscellaneous Criminal Cause No. E015 of 2023, Denis Isire Wambura v Director of Public Prosecution and DCI Lolgorian.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 10. 07. 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 a motor vehicle to an applicant before charges were brought to court and the vehicle produced as an exhibit. 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 18. 07. 2023.

6. The respondent contends that the application is an abuse of the court process and frivolous. The applicant has not demonstrated any illegality, impropriety, or incorrectness in the decision made by the trial court. Therefore, the same should be dismissed for lack of merit.

7. The respondent contends that there is an interdependence on investigation and prosecution therefore the applicant and the interested party cannot be separated. that the interested party has the mandate to investigate acts of crime. The applicant has the power to direct the interested party through the inspector general of police to investigate any information or allegation of criminal conduct. The applicant also has the power to commence criminal proceedings. The respondent relied on Article 157(4) of the Constitution, section 5 of the ODPP Act, Sections 9, 10, 23, 24,27,34, 35, and 39 of the National Police Service Act, section 36A of the Criminal Procedure Code, Odhiambo Olel v Republic [1993] eKLR, GithungurivRepublic [1986] KLR1, Republic v Commissioner Of Police & Another Ex Parte Michael Monari & Another [2012] eKLR, Development Bank Of Kenya Ltd v Director Of Public Prosecutions & Another; Giriama Ranching Company Limited(Interested Party) [2020] eKLR.

8. The respondent contends that the matter herein is not res judicata as the ruling or judgment delivered in Miscellaneous Application No. 60 of 2022 was not conclusive.

9. The respondent argued that the Magistrates' Court is the first venue to raise issues of violation of rights of arrested or accused persons. The respondent relied on articles 1, 19(1), 20(1) and (40, 21(1), 22(2),23(1)(2), 24(3), 49, 50(2),159 and 169(1)(a)(2) of the Constitution, Section 8 of the Magistrates Court Act, Cornel Rasanga Amoth v Jeckonia Okungu Ogutu [2017] eKLR, Republic v Chairman, Political Parties Disputes Tribunal Ex Parte Susan Kihika Wakarura [2017] eKLR, In The Matter of Interim Independent Electoral Commission [2011] eKLR, Daniel Maingi Muchiri v Jubilee Insurance Company Ltd[2017].

Directions of the court 10. On 12. 07. 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. E015 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 present case is not one for review. That if the applicant was unsatisfied that its preliminary objection was dismissed and that the subsequent ruling was not in its favour, the proper course was to appeal against the ruling of the lower court and not to initiate a review. The respondent relied on Livingstone Maina Ngare v Republic [2011] eKLR, Article 165 (6) And (7) of the Constitution of Kenya, The Court Of Appeal In Samuru Gituto Farmers Co-Operative Society Limited v Chief Magistrate’s Court At Thika & 15 Others [2019] eKLR at paragraphs 47-49.

20. The respondent submitted that the applicant’s application is bad in law, is incompetent, and is an abuse of the court process and prayed that the same be dismissed.

21. The respondent submitted that the cases of Petroleum Institute of East Africa v Republic & 2 Others [2021] eKLR and Jeremiah Kobia Munoro v Republic [2021] eKLR are not applicable in the manner the applicant attempts to apply them. The rules on releasing any property suspected to be involved in offenses under the Petroleum Act would be different from other crimes because such property would mandatorily be subject to a forfeiture order should the suspect be found guilty. Therefore, the authority is not a proper comparison or authority for the circumstances of the present application. that paragraph 9 of the applicant’s submissions is entirely untrue as the cited extract does not exist as cited.

22. The respondent submitted that the case of Republic v John Nganga Mbugua [2014] eKLR is more relatable to the present case. There is no confirmation whether or not the respondent’s vehicle will ever be used as an exhibit. The vehicle was impounded over a year ago and in that period, there have been no arrests made and no one has been arraigned in court. In the present case, the suspect does not claim ownership of the impounded vehicle. The issue of ownership is not in question.

23. The respondent submitted that how the applicant is urging the court to apply and/or interpret Section 177(a) of CAP 75 is draconian in these circumstances.

24. The respondent urged this court to find that the continued confiscation of the respondent’s vehicle is causing him great losses as the vehicle is his sole source of income and livelihood. That the same continues to waste away at the police station for no legally justifiable reason whatsoever.

Analysis and Determination 25. This application is for revision of the decision by a subordinate court.

Pertinent Matters a. Competence or appropriateness of revision 26. 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 27. 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 28. 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.

29. 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.

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

Power of revision 31. 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.

32. 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’.

33. 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 CPC is 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 CPC is 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.

34. 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 35. 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- it is the determination the court makes upon due consideration of the objection.

36. 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.

37. 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.

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

39. Orders accordingly.

DATED, SIGNED AND DELIVERED AT KILGORIS THROUGH MICROSOFT TEAMS ONLINE APPLICATION THIS 7TH DAY OF NOVEMBER 2023. F. GIKONYO MJUDGEIn the Presence of:-1. CA – Leken2. Okeyo for DPP3. M/s Wekesa h/b for Kiprotich for Respondent