[2017] KEHC 8678 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL DIVISION

MISC. CRIMINAL APPLICATION NO. 96 OF 2016

GODWINS OTIENO OGUTU......APPELLANT

VERSUS

REPUBLIC................................RESPONDENT

RULING

The Applicant filed a Chamber Summons application on 21st March, 2016 with the main prayer that the learned trial magistrate Hon. M. Mutuku disqualifies herself from conducting the trial in Milimani Cr. Case No. 101 of 2015. In that case, the applicant is charged with issuing a bad cheque contrary to Section 316A (1)(a)) as read with 316A(4) of the Penal Code. It is alleged that on 24th May, 2015, in Nairobi, within Nairobi County with intent to defraud issued a certain cheque No. 000009 of Kshs. 100,000/= to Stephen Waweru drawn from NIC bank account No. 1002648519 held at Prestige Branch knowing the said account had insufficient funds.

The main grounds on which the application is premised are that the trial magistrate is biased against him, she exhibits gross conflict and violation of the applicant’s fundamental human rights, that the trial magistrate used derogatory, demeaning and discriminatory language against the applicant and that she therefore lacks the moral authority to conduct the trial. The applicant swore a supporting affidavit filed on 21st March, 2016 reiterating the grounds upon which the application is premised.

The application was canvassed before me on 19th September, 2016. The applicant acted in person while the respondent was represented by learned State Counsel M/s Akuja. In his submissions, the applicant stated that the trial should be heard by another magistrate because he had had a dispute with the current trial magistrate. He submitted that the magistrate used abusive language on him. He made a complaint to her that he had been assaulted by the police while he was in custody but the learned magistrate did not take any action. The application was initially made before a duty court and a referral was made to the trial magistrate. When he appeared before the trial magistrate, she declined to record the complaint. That is when he asked the trial magistrate to recuse herself from the trial.

The applicant referred the court to a letter in which he wrote to the court asking the trial magistrate to recuse herself from the trial on grounds of gross conflict between himself and the trial magistrate, vested interest in the case by the magistrate and violation of his fundamental human rights. The applicant was also of the view that on two occasions, the hearing dates were altered, namely; 23rd July, 2015 and 19th May, 2015. He was of the view in the circumstances that he would not be accorded a fair trial before the current trial magistrate.

Learned Stated Counsel Ms. Akuja opposed the application. She submitted that the applicant was making allegations from the bar because what he had told the court was not borne on the court record. She submitted that according to the trial record, when the file was placed before the duty court the applicant was advised to make the application of recusal before the learned trial magistrate. Although he stated that the matter was due to court on 15th March, 2016, the record evidenced that sittings were held on 23rd and 24th March, 2016 and the matter did not proceed on those two dates. Regarding the allegations of assault by the investigating officer Ms. Akuja submitted that the applicant ought to have reported to the relevant authorities for investigations as court does not conduct investigations.

In rejoinder, the applicant submitted that he could only have raised the complaint of assault in court because he was in custody. He also initially made the application for recusal before the trial magistrate herself. Thereafter, he made a similar application before Hon. Cheruiyot who referred him to the trial magistrate Hon. Mutuku. Unfortunately, the trial court did not act on his request. Regarding the application of 15th March, 2016, he wanted the court to issue a production order so that he could make an oral application before Hon. Mutuku for her to recuse herself from the trial.

I have accordingly considered the application and the respective submissions. The court must be guided by record in making its determination. I shall therefore give a chronology of proceedings before the learned magistrate, Hon. M. Mutuku, Principal Magistrate. She took over the conduct of the trial on 19th June, 2015. The last sitting before the file was forwarded to this court was on 5th July, 2016. On four dates when the trial would have proceeded, the same flopped for various reasons. On 5th October, 2015, the applicant informed the court that his advocate was not before the court and in any case, he and the complainant were pursuing an out of court settlement. The hearing was stood over to 7th January, 2016. On this date the applicant was not ready to proceed citing that he was unwell and had not been taken to hospital. He also asked for summons to issue to the officer in charge Industrial Area prison Miss Wanini because he had been denied to access medical treatment. On this date, the prosecution had one witness. The court properly declined to issue summons to the officer in charge of prison on noting that in the first instance no order had been made by the court to the effect that the applicant be taken to hospital. The court accordingly issued an order that he be taken to Kenyatta Hospital for treatment. A mention date was set for 20th January, 2016. On the latter date, the applicant did not inform the court whether he had been treated but instead told the court that he wanted the case to be heard before the Chief Magistrate. The presiding magistrate was Hon Cheruioyot. She requested the applicant to make the application before the trial court. She set a mention date for 25th January, 2016. On 25th January, 2016 Hon mutuku was in conduct of the matter. The applicant only made a statement requesting a chance to make an application before the Chief Magistrate. He was directed to apply for a production order before the Chief Magistrate where he could make the application he wanted. Meanwhile, a hearing date was set for 16th March, 2016. The applicant then informed the court that he had another case before Kibera Law Courts on this date. The hearing was rescheduled for 24th March, 2016.

On 24th March, 2016, the prosecution had bonded two witnesses and one was in court. The applicant informed the court that he was not ready to proceed stating that he had filed an application before the High Court which ought to be determined before the hearing commenced. Of course he was referring to the instant application which he filed on 21st March, 2016. The prosecution protested that the applicant was delaying trial and had never been ready to proceed when the witnesses were present. The State Counsel did not oppose the application for adjournment. The court granted the applicant the opportunity to pursue the application before the High Court and set a hearing date for 13th June, 2016. On the said date, the prosecution had two witnesses. The accused was not ready to proceed citing that the application before the High Court had been set for hearing on 30th June, 2016. The hearing was set for 5th July, 2016. On the said date, he informed the court that the application before the High Court was for hearing on 13th July, 2016. The trial was set for hearing on 12th August, 2016. Thereafter, as the instant application would show, the trial court file was called for to this court.

I have taken the liberty to give a chronology of events before the trial court so as to demonstrate that at no single time or date did the applicant make an application that the learned trial magistrate, Hon. Mutuku recuses herself from the trial. Even when he requested that a production order issues on 15th March, 2016 emulating the reasons why he needed to appear before the trial court, when he was produced on 23rd February, 2016 and 24th March, 2016 before the trial magistrate, he did not make a mention that he did not want the said magistrate to conduct the trial. The only thing he addressed the magistrate on was that he wanted the matter to be heard by the Chief magistrate and secondly, that he wanted to be referred to the Chief Magistrate to make a certain application.

The record does not also show that he made a complaint of assault before Hon. Mutuku who failed to take action. He also did not request to be taken to hospital and the learned magistrate turned a deaf ear on him. In fact, on 7th January, 2016 when he requested that summons issue to the officer in charge of Industrial Area Prison Miss Wanini, it was apparent no prior application for referral to Kenyatta National Hospital had been made. The learned trial magistrate was therefore right not to issue the summons. She properly issued the order that the Applicant be taken to KNH for treatment. The record does also attest that on every occasion the prosecution availed witnesses the applicant had reasons suggesting that he was not ready to proceed.

In the circumstances, it is in order to conclude that there is no basis on which the learned trial magistrate should not continue hearing the matter. The applicant has not demonstrated that she is biased against him, that she grossly violated his fundamental human rights or has an interest or conflict of interest in the trial and that at the end of it justice would be compromised. At best, this is an application intended to delay the trial and to portray the learned trial magistrate in bad light. It is one made in bad faith and is an abused of the due process of the court. In the result, I find no merit in it and the same is hereby dismissed. The trial court file shall be remitted back to the learned trial magistrate for mention on 22nd March, 2017 for purposes of taking a hearing date and or other directions. It is so ordered.

Dated and Delivered at Nairobi this 16th day of March, 2017

G.W.NGENYE-MACHARIA

JUDGE

In the presence of;

1. Applicant in person

2. Miss Kimiri for the Respondent.