[2022] KEHC 18124 (KLR)

DPP v Runya & 2 others (Miscellaneous Criminal Application E039 of 2022) [2022] KEHC 18124 (KLR) (5 December 2022) (Ruling)

Neutral citation: [2022] KEHC 18124 (KLR)

Republic of Kenya

In the High Court at Malindi

Miscellaneous Criminal Application E039 of 2022

SM Githinji, J

December 5, 2022

Between

DPP

Prosecutor

and

Kithi Mwadzombo Runya

1st Respondent

Chief Magistrates Court

2nd Respondent

Attorney General

3rd Respondent

Ruling

Coram: Hon. S.M GithinjiMr. Mwangi for the State/ApplicantMr. Kenga for the 1st Respondent 1. For determination is the Applicant’s Notice of Motion dated August 1, 2022 seeking the following orders;1. Spent2. That the court does exparte review and stay the orders of Hon Ongondo SPM made on July 28, 2022 in Malindi Chief Magistrate’s Criminal Case No. E065 of 2021 releasing the respondent pending the hearing and determination of this application.3. That this court does call for the lower court file in E065 of 2021 in exercise of its supervisory jurisdiction.4. That this court does review and rescind the said orders of Hon, Ongondo made on July 28, 2022 until HCCRA E36 of 2022 is heard and determined.5. That the costs of this application be provided for.

2. The Application is premised on the sworn affidavit of Joseph Mwangi Kamanu who deponed that on July 28, 2022 Malindi CRMCC No. E065 of 2021 came up for hearing and the prosecution indicated at first that the police file had not been availed to the prosecution. The file was placed aside until 11:00 am to allow the prosecution put its house in order. When the file was brought to court at 12:00 pm before Hon. Ongondo SPM, he directed the same be placed before Hon. Usui CM for re allocation.

3. It was stated that at 2:46pm the matter was however mentioned before Hon. Ongondo SPM when the advocate for the 1st respondent sought that the accused be acquitted under Section 202 of the Criminal Procedure Codeor in the alternative the bond of the respondent be reinstated. That despite the issue of bond terms pending before this court in HCCRA E336 of 2022, the trial court reinstated the bond terms without having jurisdiction.

4. It was further stated that the cancellation of the bond terms were made by Hon. Chepseba CM to which the defence counsel never made any formal application for review and the defence counsel on record for the accused in E065 of 2021 had already filed for an appeal against the ruling of Hon. Chepseba. Hon. Ongondo had no jurisdiction to hear and determine any application concerning the cancellation of 1st respondent’s bond terms.

5. The 1st Respondent Kithi Mwadzombo Runya filed a replying affidavit dated August 23, 2022 stating that on July 28, 2022 when the police file was not availed the matter would have been dismissed due to absence of the complainant(s) and his or their witnesses, the court having ordered that the matter proceed for hearing on the same day at noon with or without witnesses.

6. It was stated that when the police file was availed at noon on the same day the complainant(s) and his or their witnesses were still unavailable and on the grounds the trial court had discretion to dismiss the charges under section 202 of the Criminal procedure court but in the interest of justice, his advocate urged the court to release him on same bond terms given at the time of plea in the matter.

7. It was deponed that the pendency of the appeal in this court does not prevent the trial court from hearing the Criminal case against him and nor does it stop the Applicant from prosecuting the said criminal case as there were no orders stopping the Criminal proceedings. Further, that even his own application does not seek for stay of the criminal proceedings.

8. It was further stated that the trial court had a duty to ensure that the criminal proceedings are conducted in a fair manner and where witnesses, including the complainant(s) fail to appear in court for hearing of the case, appropriate orders or directions are made in favour of the accused person which in the circumstances, should have been a dismissal of the charges but the trial court chose to favour the complainant(s) by making orders for reinstatement of his bond terms, thus the application should be dismissed.

Analysis and Determination 9. Having weighed the foregoing, what emerges for determination is whether the applicant has made out a case that warrants review and stay of orders issued on July 28, 2022.

10. Revision by the High Court is covered under section 362 up to section 367 of the Criminal Procedure Code Cap 75 Laws of Kenya.Section 362 reads; -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.Section 364 (1) states; -In the case of a proceedings in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to it’s knowledge, the High Court may-a. –b. –c. –d. –e.When an appeal lies from a finding, sentence or order, and no appeal is brought, no proceeding by way of revision shall be entertained at the insistence of the party who could have appealed. ”

11. From the foregoing provisions the law makes it clear that revision is not supposed to be exercised in place of an appeal. It’s not available to a party who has the right to appeal against an order or finding of the subordinate court. The prosecution had a right to appeal against the impugned order as are a party in the case. As such they are not entitled to move this court by way of a revision. Revision is appropriately driven or initiated by a party who has no right to appeal or the court in it’s own motion when it realizes of a matter appropriate for the same.

12. On the foregoing the application by the prosecution lacks merit and is hereby dismissed.

DATED, SIGNED AND DELIVERED AT MALINDI THIS 5TH DAY OF DECEMBER, 2022…………………………………………………S.M GITHINJIJUDGE