[2022] KEHC 26992 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

ACEC MISC. NO. E033 OF 2021

HENRY KIPLAGAT ROTICH...........................................................................APPLICANT

VERSUS

DIRECTOR OF PUBLIC PROSECUTIONS...............................................RESPONDENT

RULING

Introduction

1. The applicant moved this court by way of a Notice of Motion dated 10th November 2021 brought under Article 165(6) and (7) of the Constitution and Section 362 of the Criminal Procedure Code for orders that:

“i. Spent

ii.This Court be pleased to call for and examine the record of the criminal proceedings in Anti-Corruption Criminal Case No. 20 of 2019, pending in the subordinate court for purposes of satisfying itself as to the constitutionality, legality, correctness, propriety or regularity of the proceedings, findings and orders made by the subordinate court.

iii. The Court be pleased to stay any further proceedings in Anticorruption Criminal Case No. 20 of 2019, pending the hearing and determination of the Application.**

iv. Pending the interpartes hearing, this Court be pleased to order on an ex parte basis, stay of any further proceedings in Anti-Corruption Criminal Case No. 20 of 2019.

v. This Court do exercise its supervisory and revisionary jurisdiction to revise, vacate, discharge, vary and/or set aside the findings of the trial court.

vi. Any further orders the Court may deem fit and just to issue.”

2. The application is based on grounds that:

“i. On 25th October 2021, the trial court ruled that the Applicant could take plea on an amended charge sheet which contrary to law and procedure was signed “For: OCS Muthaiga Police Station” and instituted by the “Directorate of Criminal Investigations”

ii. The aforesaid charges were instituted by a body that does not have the constitutional competency to institute criminal charges yet such constitutional authority is vested in the Director of Public Prosecutions (“the DPP”) by article 157 (6)(a) of the constitution and not the Directorate of Criminal Investigations or the Kenya Police.

iii. The amended charge sheet before the trial court does not conform to constitutional requirements nor to the DPP’s Guidelines on the Decision to Charge, 2019 which not only contains elaborate details as to the drafting, signing and lodging in court of charge sheets but also contains a sample charge sheet.

iv. The DPP’s stamp on the amended charge sheet in question is only an acknowledgment of receipt of the charge sheet from Muthaiga Police Station which emanates from the Directorate of Criminal Investigations.

v. The trial court treated constitutional provisions casually with no intent to respect, uphold and defend the constitution.

vi. The trial court with no legal basis found that the amended charge sheet was proper, legal, appropriate for the Applicant to take plea, notwithstanding that it emanated from the Directorate of Criminal Investigations and was signed For the OCS, Muthaiga Police Station.

vii. Article 50(2) of the constitution guarantees the applicant a fair trial in which the prosecutor is independent of the investigative agency hence the investigative body does not possess the necessary independence to institute criminal proceedings through lodging and signing charge sheets”

3. The application is supported by the affidavit of Henry Kiplagat Rotich sworn on 10th November 2021 and his further affidavit sworn on 22nd November 2021. The applicant deposes that on 25th October 2021, the trial court overruled his objection to an amended charge sheet and directed him to take plea on 1st November 2021 to a charge sheet instituted by the “Directorate of Criminal Investigations” which was signed “For OCS Muthaiga Police Station” and which also bore three stamps, one a stamp of Muthaiga Police Station, the second for the subordinate court registry and the third for the Office of the Director of Public Prosecutions signifying it had been received by that office. It is his case that criminal prosecutions are instituted by lodging a charge sheet in a subordinate court and that the only office that can do that is that of the Director of Public Prosecutions and that since the Amended Charge was instituted by the Directorate of Criminal Proceedings and signed for the OCS his prosecution based on that Amended Charge is unconstitutional, illegal and null and void. The Applicant avers that as an accused person, he has a legitimate expectation that his prosecution will be instituted in accordance with the constitution and the Director of Public Prosecutions Guidelines on the Decision to Charge 2019 which were publicly issued on 28th July, 2020 and by which the Office of Director of Public Prosecutions notified the whole world how charge sheets emanating from his office would look like and by who the charge sheets would be signed. He avers that the Office of the Director of Public Prosecutions even provided a sample charge sheet to which the Amended Charge Sheet did not conform. The Applicant faults the trial court for failing to ensure fair administration of justice by ordering him to take plea on an amended charge sheet presented to court by unauthorised persons.

4. In his submissions, learned Counsel for the Applicant reiterated that the power to institute and undertake criminal proceedings against any person before any court other than a court martial is vested in the Director of Public Prosecutions by dint of Article 157(6)(a)of theConstitutionand that the instrument that institutes criminal proceedings is a charge sheet as originally presented or amended from time to time. Learned Counsel submitted that the amended charge sheet herein expressly stated that it emanated from the “Directorate of Criminal Investigations” and was signed “For OCS Muthaiga Police Station.”Counsel invoked the parole evidence rule provided in Sections 99and100of theEvidence Act which prohibits the adduction of oral evidence to contradict the contents of written documents and submitted that no explanation can be proffered to characterise the amended charge sheet as a document originating from the Director of Public Prosecutions. To that end, Counsel rejected the explanation in Ms Judy Thuguri’s Replying affidavit that the Director of Public Prosecution approved the charges by affixing his rubber stamp at the bottom of each page. Counsel asserted that the stamps did not amount to approvals but were an acknowledgement of receipt of the charge sheet by the Director of Public Prosecutions from the Officer in Charge Muthaiga Police Station. Counsel stated that under the parole evidence rule the Director of Public Prosecution’s stamp cannot change what the document says it is which is “Directorate of Criminal Investigations Charge Sheet” and that therefore the amended charge sheet violates express constitutional provisions and is null and void.

5. Counsel decried the Director of Public Prosecution’s failure to abide by its own Guidelines on the Decision to Charge 2019 issued pursuant to Section 50 of the Office of the Director of Public Prosecutions Act whose directions and sample charge sheet follow the provisions of Article 157(6)(a) of the Constitution. Counsel cited paragraphs 4. 3, 3. 6 and 3. 10. 2 of the Guidelines, which provide that the duty prosecutor shall draft the charges, stamp and sign then place their initials and rank on the charge sheet and further in the event that a decision to charge is made, the duty prosecutor will fill a decision to charge form and an Office of the Director of Public Prosecutions charge sheet (prescribed form ODPP-04). Further that a Director of Public Prosecutions file consists of a completed Office of the Director of Public Prosecutions charge sheet that is signed and which has the initials and rank of prosecution counsel making the decision and stamped as approved by the prosecution counsel.

6. Learned Counsel for the applicant cited the case of Geoffrey K. Sang vs Director of Public Prosecutions & 4 Others (2020) eKLR in which the court observed: -

“122. In this petition, one of the challenges taken by the Petitioner revolves around the prosecutorial powers. It is clear that neither the concerned Directorate of Criminal Investigations nor the Inspector General of Police has any prosecutorial powers.

..............................................................................

126. In this case in terms of prosecutorial powers, the Director of Public Prosecutions may pursuant to Article 157(4) of the Constitution, direct the Inspector-General of the National Police Service to investigate any information or allegation of criminal conduct and the Inspector-General shall comply with any such direction. Upon receipt of such directions, pursuant to Section 35(h) of the National Police Service Act, the Inspector General of Police may direct the Directorate of Criminal Investigations to execute the directions given to the Inspector-General by the Director of Public Prosecutions pursuant to Article 157 (4) of the Constitution. Clearly therefore there is a clear chain of command set out hereinabove. When it comes to the exercise of prosecutorial powers, as between the three entities, the Director of Public Prosecutions has the last word. In other words, no public prosecution may be undertaken by or under the authority of either the Inspector General of Police or the Director of Criminal Investigations without the consent of the Director of Public Prosecutions.

127. What the foregoing provides is that each of the three entities must of necessity stay on their respective lanes. Any attempt by any of them to trespass onto the other’s lane can only end up disastrously. In simple terms an attempt by the Directorate of Criminal Investigations to charge a person with a criminal offence without the consent of the Director of Public Prosecutions is ultra vires the power and authority of the Director of Criminal Investigations and amounts to abuse of his powers. It is therefore null and void ab initio.”

7. Counsel submitted further that Section 89(4) of the Criminal Procedure Code which provides for signing of a charge sheet by a police officer should in accordance with Section 7(1) of the Sixth Schedule be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it in conformity with the Constitution. Counsel stated that in this case the word “police officer” in Section 89(4) of the Criminal Procedure Code should be replaced with the words “The Director of Public Prosecutions or officers subordinate to him”as the proper officer to sign the charge sheet. In support of his submissions Counsel also cited the following cases:

· R vs McDaid (2007)UKHL8 where the court stated:-

“5…There is, as the Court of Appeal observed in R v Stewart (1990) 91 Cr App R 301 at 304, 306, a fundamental distinction between the preferment of a bill of indictment and the signing of the bill: it is the signing of the bill, which converts it into an indictment.

“9…The court found considerable value in an unreported judgment of the Court Appeal in R v Hodges (George David), 5 June 1981, in which Peter Pain J had said:

“It seems to us that it is impossible for a criminal trial to start without there being a valid indictment to which the defendant can plead, and that the bill of indictment does not become an indictment until it is signed.”

· Regina vs Darko Jancenski (2005)NSWCCA 281 where it was held:-

“97. His Honour’s analysis indicates that s126 had as its primary purpose the objective of ensuring that the new office of the Director of Public Prosecutions, subject only to the Attorney General’s powers, would be in control of the process of instituting criminal proceedings on indictment and that that would be manifest to all parties to the proceedings. This purpose requires precise compliance with the formulated stipulation in s 126(1)(b)(iii) and s126(2). For this reason, I have to come to the conclusion that Parliament did intend that the defect in compliance which has occurred in this case should lead to invalidity.”

The Respondent’s case

8. In opposition to the application the Respondent filed a Replying Affidavit sworn on 15th November 2021 by Ms Judy Thuguri, a Prosecution Counsel in the Office of the Director of Public Prosecutions. The gist of the affidavit is that on 23rd July 2019 the applicant was charged alongside others with offences relating to misappropriation of public funds for the construction of Arror and Kimwarer dams before the Chief Magistrate Milimani Anti-Corruption Court in case Numbers 20 and 21 of 2019. On the same day the respondent instituted charges against Kerio Valley Development Authority officials in case Numbers 18 and 19 which cases were all later consolidated into case Numbers 18 and 20 of 2019. Miss Thuguri deposes that on 11th May 2021 the charges were amended so as to expedite the trial and so as to separate the Italian companies and their directors who were yet to submit themselves to the court’s jurisdiction. The case against the Italian parties was registered as Milimani Anti-Corruption Case No. E008 of 2021. Counsel deposes that after the separation of the charges, pre-trial directions on the hearing were issued and Anti-Corruption Case No. 20 of 2019 was set down for hearing. That however, between May and August 2021 the prosecution received numerous applications from the accused persons in case No. 18 seeking to be considered as prosecution witnesses which led to an independent review and that consequently the Respondent decided to consolidate case Numbers 18 and 20 of 2019 and filed an application to that effect before the trial court on 10th October 2021 with the proposed consolidated charge sheet annexed thereto. Counsel states that the application was allowed by the trial court in its ruling dated 1st November 2021 and on the same date, the respondent filed the consolidated charge sheet in Milimani Anti-Corruption Case No. 20 of 2019 to which the applicant alongside other accused persons took plea. The deponent avers that the consolidated charge sheet as framed was approved by the Director of Public Prosecutions who also gave consent to withdraw charges against those accused persons that had been dropped from the consolidated charge sheet.

9. It is the Respondent’s case that the applicant’s prayer for stay of the criminal proceedings should not be granted as he has failed to provide and place material facts before this court establishing a prima facie case with a probability of success, demonstrate that he will suffer irreparable injury or that the balance of convenience tilts in his favour. Counsel states that the applicant has also not demonstrated that the Respondent has exhibited bias or acted in excess of its powers while discharging its lawful mandate. Counsel contended that conservatory orders are discretionary and can only be granted on a balance of convenience and that the respondent stands to be gravely and irreparably prejudiced if the conservatory orders are granted as the trial court’s proceedings will be impeded. The Respondent contends that the Applicant is guilty of laches as the charges against him were instituted way back on 23rd July 2019.

10. The respondent further asserted that the prayers invoking this court’s supervisory jurisdiction “to call for proceedings pending before the trial court in Anti-Corruption Case No. 20 of 2019” lack specificity and are vague, amorphous and unenforceable; That the applicant has failed to demonstrate how his rights under Article 50 have been violated and he has also failed to enjoin the trial court even though its orders are the subject of the application. The Respondent also argues that this application has not raised a substantive issue warranting the intervention of this court; that the application is incurably defective and an abuse of the court process as the applicant has filed a similar suit challenging the charges against him in ACEC HC Pet. No. 25 of 2020; Henry Kiplagat Rotich vs The DPP and 2 Others.

11. Relying on the affidavit of Ms Judy Thuguri, Counsel for the Respondent submitted that the charges against the applicant were instituted by the Respondent pursuant to its powers under Article 157(6)(a) of the Constitution. Counsel adopted the definition of the term “institute” in Black’s Law Dictionary 10 Edition and the case of Buckner vs General Motors Corp (1988) as meaning inter alia to begin, start, commence, initiate, cause, found or ordain legal proceedings. Counsel stated that from the chronology of events beginning with the application for consolidation of charges to the formal charge sheet being filed and placed before the trial court for plea taking and with Taib Ali Taib SC and Alexander Muteti Senior Assistant Director of Public Prosecutions representing the Respondent in the court it was evident that the charge sheet before the trial court was instituted by the Director of Public Prosecutions but not by the Directorate of Criminal Investigations as alleged to by the Applicant.

12. Counsel distinguished the case of Geoffrey K Sang vs the Director of Public Prosecutions & 4 Others (supra) cited by the applicant and stated that in that case, the Directorate of Criminal Investigations upon arresting the Petitioner proceeded to file the charge sheet in court and attempted to charge the Petitioner without the Director of Public Prosecutions’ approval or consent which facts are markedly different from the present application as in the Applicant’s case the impugned charge sheet was approved and presented before the trial court by the Director of Public Prosecutions.

13. It is the Respondent’s case that the charge sheet formally filed in court must bear the stamp of the Office of the Director of Public Prosecutions signed by the Director of Public Prosecutions or a prosecutor authorised to exercise delegated powers. Counsel for the Respondent avers that the signature and stamp on the face of the charge sheet signifies the Director of Public Prosecutions’ approval and consent but is not an acknowledgement of receipt. Counsel submitted that the respondent acknowledges that the charge sheet is part of an administrative process and that while the Respondent prosecutes, the Police arrest and arraign the persons to be charged in court. Further that the OCS being the custodian of records at the police station signed the charge sheet as a confirmation of the accused person in their records and the charges levelled against them but not as approval or institution of the Charges. Counsel submitted that the issue of signing and stamping the charge sheets by the officers in charge of police stations was determined in the case of: -

· John Cheruiyot & 2 Others vs the Director of Public Prosecutions (2021) eKLRwhere the court found that there was no error on the face of the record to warrant review of the trial court’s order and found that the trial court was right in overruling the applicants’ objection to a charge sheet which was alleged to be improper, illegal and unconstitutional as it was drawn and presented by a body lacking mandate to prosecute cases under Article 157 as well as the Office of the Director of Public Prosecutions Decision to Charge Guidelines of 2019.

14. Counsel submitted that in the case of BND VS Republic (2017)eKLR it was held that:-

“30. Hence, as our case law has established, the test for a defective charge sheet is a substantive one, not a formalistic one and when it is used here it establishes that the charges gave fair notice to the Accused Person to the charges he was facing, and the trial was fair in a substantive sense. No miscarriage of justice was occasioned by the typographical error in the charge sheet.”

15. Counsel contended that it is common ground that the law on framing of charges is clearly articulated in Section 134 of the Criminal Procedure Code. Counsel submitted that the Applicant did not demonstrate that the charges did not contain information sufficient for him to answer to it and for that reason he cannot succeed. Counsel cited the case of Sigilani v Republic [2004] 2 KLR 480 to support his submissions.

16. Counsel submitted that the Respondent had a right to amend the charge sheet in light of the evidence and facts submitted and that the Applicant will suffer no prejudice whatsoever as he shall be given sufficient notice to enable him prepare adequately for his defence.

17. Counsel further stated that judicial review proceedings are concerned with the manner of a decision making process as opposed to the merits but in the motion herein the applicant seeks to purely challenge the approval of the charge sheet and not the charges facing him. Counsel reiterated that the Office of the Director of Public Prosecutions is an independent office separate from an investigative agency; that the Office of the Director of Public Prosecutions has the sole preserve of prosecutorial functions while the mandate of the National Police Service is limited to the investigative functions. Counsel stated that Section 89(1)of theCriminal Procedure Code provides that proceedings may be instituted by making a complaint or bringing before a magistrate of a person who has been arrested without a warrant which section ought to be read in conformity with the Constitution. Counsel submitted that the Director of Public Prosecutions has the sole mandate to institute criminal prosecutions other than in a court martial while on the other hand, the powers of the National Police Service with respect to investigations in Sections 24, 27and35of theNational Police Service Act include investigation of crimes, apprehension of offenders and enforcement of all laws and regulations.

18. Counsel submitted that whereas investigation involves gathering of evidence of crime, prosecution involves both the commencement and institution of an action or proceeding and following it up to its ultimate conclusion. Counsel stated that there is no suggestion that investigation includes filing of charges in court as its component hence the mere stamping of the amended charge sheet by the OCS Muthaiga Police station as the keeper of records with regard to Anti-Corruption Case No. 20 of 2019 does not connote that the charge sheet emanated from the Directorate of Criminal Investigations or that the same was instituted by the Directorate of Criminal Investigations. Counsel asserted therefore that the Applicant had misinterpreted the law. Counsel submitted that the impugned charge sheet was prepared by the Respondent, approved and stamped by an officer of the Respondent and was in full compliance with Article 157of theConstitution.

19. Counsel argued that the making of a complaint and the very first appearance of an arrested person in court is squarely within the ambit of institution of criminal prosecution by the respondent pursuant to Articles 49(g) and 157(6) of the Constitution, and Section 89(1) of the Criminal Procedure Code. For this Counsel placed reliance on the case of Director of Public Prosecutions vs Kuldip Madan & Another (2019) eKLR.

20. Counsel for the Respondent implored this court to consider Article 259 of the Constitution which provides that the Constitution shall be interpreted in a manner that promotes its purposes, values and principles, advances the rule of law, human rights and fundamental freedoms, permits the development of the law and contributes to good governance. Citing the cases of Federation of Kenya Lawyers (FIDA) vs Attorney General & Another(2018)eKLR, Tinyefuza vs the Attorney General of Uganda Constitutional Petition No. 1 of 1997 (1997 UGCC 3)and Council of County Governors vs Attorney General & Another (2017)eKLR Counsel urged this court to interpret the Constitution broadly, liberally and purposively and asserted that a harmonious provision of Section 89of theCriminal Procedure Code, Article 49(g)andArticle 157(6)of theConstitution places the decision to charge a suspect within the ambit of instituting criminal proceedings which is a preserve of the Respondent.

21. Counsel for the Respondent described the assertion by the Applicant that he has not been accorded a fair trial as lazy, moot, misguided and misplaced and submitted that Article 50 applies not only to the Applicant but to all parties in a matter. Counsel asserted that the Applicant has not demonstrated any material particulars for the alleged violations of Articles 50(2), 165(6) and (7). Counsel contended that the issues raised in this Application are issues which the Applicant ought to raise in his defence before the trial court. Counsel relied on the following cases:

· Republic vs Attorney General & 4 Others Ex Parte Diamond Hashim Lalji (2014) eKLR where it was stated:-

“127. Our criminal process entails safeguards which are meant to ensure that an accused person is afforded a fair trial and the trial courts are better placed to consider the evidence and decide whether or not to place an accused on their defence and even after placing the accused on their defence, the Court may well proceed to acquit the accused. Our criminal process also provides for a process of an appeal where the accused is aggrieved by the decision in question. Apart from that there is also an avenue for compensation by way of a claim for malicious prosecution. In other words, unless the applicants demonstrate that the circumstances of the impugned process render it impossible for the applicant to have a fair trial, the High Court ought not to interfere with the trial simply on the basis that the applicant’s chances of being acquittal are high. In other words, a judicial review court ought not to transform itself into a trial court and examine minutely whether or not the prosecution is merited.”

· Republic vs Catherine Mutheu Ndung’a & Another (2019)eKLR where the court observed that:-

“28. The Office of the DPP institutes cases that are criminal in nature on behalf of aggrieved parties. It cannot be said that the right to a fair trial is only available to an accused person but not to the DPP on behalf of complainants. In my considered view, the right to a fair trial cuts across the board and is applicable to the prosecution and an accused person alike.”

Counsel urged this court to find that the Applicant has not demonstrated that he warrants this court to exercise its supervisory jurisdiction in his favour.

Analysis and determination

22. The issues for determination are:

i. Whether the impugned amended charge sheet is defective and hence illegal for having been made by a body without the constitutional mandate to institute criminal charges.

ii.Whether the applicant is entitled to the orders sought.

23. The Applicant has invoked the revisionary jurisdiction of this court under Section 362 of the Criminal Procedure Code as well as the supervisory jurisdiction of the High court under Article 165(6)and (7) of the Constitution. Section 362of the Criminal Procedure Codestates:-

“362. The 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.”

Article 165(6)and (7)of theConstitutionstates:-

“165(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.”

24. The circumstances under which this court can exercise its supervisory jurisdiction under Article 165(6)and(7) of the Constitution are qualified. In the case of Director of Public Prosecutions v Perry Mansukh Kansagara & 8 Others [2020] eKLR, Mwongo J and I agree with him qualified those circumstances as follows: -

“151. Where, or if, it is intended to exercise Supervisory Jurisdiction under the Constitution, I think the following safeguards should be observed:

i. A balance has to be struck in the exercise of constitutional Supervisory Jurisdiction to ensure there is no appearance that its object is to micro- manage the trial court’s independence in the conduct and management of its proceedings

ii. Ideally, constitutional Supervisory Jurisdiction should be exercised only after the parties are heard on the subject matter in question

iii. Supervisory Jurisdiction should not be used where the option of revision is appropriate or applicable;

iv. Supervisory Jurisdiction should not be used as a shortcut for an appeal where circumstances for appeal clearly pertain and are more appropriate;

v. Supervisory Jurisdiction should be exercised to achieve the promotion of the public interest and public confidence in the administration of justice...” (Emphasis mine)

25. It is not in dispute that the criminal proceedings the subject of this application were instituted by the Respondent pursuant to its powers under Article 157(6)(a) of the Constitution and that the respondent has all along had conduct of the case on behalf of the State. Indeed, the Applicant’s contention in this application concerns the Amended Charge Sheet only. His contention is that the same is illegal, unconstitutional and void ab initio because that Amended charge sheet was signed and instituted by a person who does not have the mandate to institute criminal prosecutions yet the Constitution vests that mandate solely on the Director of Public Prosecutions.

26. On the issue of validity of a charge sheet the first port of call is Article 50(2) (b) of the Constitution which provides that:-

“50. (2) Every accused person has the right to a fair trial, which includes the right—

(b) to be informed of the charge, with sufficient detail to answer it.”

and Section 134 of the Criminal Procedure Code which states:-

“134. Offence to be specified in charge or information with necessary particulars

Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.”

27. The formalities of a charge sheet are set out in Section 137of the Criminal Procedure Code which states:-

“137. Rules for the framing of charges and informations

The following provisions shall apply to all charges and informations, and, notwithstanding any rule of law or practice, a charge or information shall, subject to this Code, not be open to objection in respect of its form or contents if it is framed in accordance with this Code...”

Section 137 (a) (i) – (iv)then provides that:-

(a) (i) Mode in which offences are to be charged—a count of a charge or information shall commence with a statement of the offence charged, called the statement of offence;

(ii) the statement of offence shall describe the offence shortly in ordinary language, avoiding as far as possible the use of technical terms, and without necessarily stating all the essential elements of the offence, and if the offence charged is one created by enactment shall contain a reference to the section of the enactment creating the offence;

(iii) after the statement of the offence, particulars of the offence shall be set out in ordinary language, in which the use of technical terms shall not be necessary: Provided that where any rule of law or any Act limits the particulars of an offence which are required to be given in a charge or information, nothing in this paragraph shall require more particulars to be given than those so required;

(iv) the forms set out in the Second Schedule or forms conforming thereto as nearly as may be shall be used in cases to which they are applicable; and in other cases forms to the same effect or conforming thereto as nearly as may be shall be used, the statement of offence and the particulars of offence being varied according to the circumstances of each case;

(v) where a charge or information contains more than one count, the counts shall be numbered consecutively.”

28. The litmus test for all charge sheets are therefore as set out in Article 50(2)(b) of the Constitution, Section 134andSection 137of theCriminal Procedure Code.That test as can be seen from the aforestated provisions is a substantive one and there is a long line of cases which acknowledge this. In the case of Benard Ombuna v Republic [2019] eKLR the Court of Appeal stated:-

“The test whether a charge sheet is fatally defective is substantive rather than formalistic. Of relevance is whether a defect on the charge sheet prejudiced the appellant to the extent that he was not aware of or at least he was confused with charges preferred against him and as a result, he was not able to put up an appropriate defence.”

29. The same position was adopted in the case ofB D v Republic [2017] eKLRwhere the court stated:-

“The principle of the law governing charge sheets is that an accused should be charged with an offence known in law. The offence charged should be disclosed and stated in a clear and unambiguous manner so that the accused may be able to plead to a specific charge that he can understand. It will also enable an accused person to prepare his defence. The answer from our decisional law is this; the test for whether a charge sheet is fatally defective is a substantive one: was the accused person charged with an offence known to law and was it disclosed in a sufficiently accurate fashion to give the accused adequate notice of the charges facing him.? If the answer is in the affirmative, it cannot be said in any way other than a contrived one that the charges were effective.”

30. Applying the substantive test to the Amended Charge it is my finding that the same is fully compliant with Article 50(2) (b) of the Constitution and Sections 134and 137 of the Criminal Procedure Code and the fact that the applicants do not complain that they did not understand the charges facing them is evidence of the same.

31. In regard to signing of charge sheetsSection 89 (4) of the Criminal Procedure Code provides that a charge sheet may be signed by a magistrate of a police officer in the following circumstances: -

“89(4)The magistrate, upon receiving a complaint, or where an accused person who has been arrested without a warrant is brought before him, shall, subject to the provisions of subsection (5), draw up or cause to be drawn up and shall sign a formal charge containing a statement of the offence with which the accused is charged, unless the charge is signed and presented by a police officer.”

This court has been urged to read this section in conjunction with Section 7 of the Sixth Schedule of the Constitution and hence replace the word “police officer” with the “Director of Public Prosecutions”. I agree fully with this submission. This court has also been told to find fault with the Amended charge sheet because it is not in conformity with the Director of Public Prosecution Guidelines on the Decision to Charge. However, to state that the impugned charge sheet is fatally defective merely because it does not conform to the Guidelines is not tenable as firstly such a finding would however fly in the face of the express provisions of Article 159 of the Constitution which obligates this court to look into the substance rather than the form of the charge sheet. Secondly Section 89(5) provides that a trial magistrate may only refuse to admit a charge sheet if it does not disclose an offence and Section 90 (2) of the Criminal Procedure Code states that:-

“90 (2) The validity of proceedings taken in pursuance of a complaint or charge shall not be affected either by a defect in the complaint or charge or by the fact that a summons or warrant was issued without a complaint or charge.”

Further Section 382 of the Criminal Procedure Code prohibits this court from reversing a finding, order or judgment of the trial court merely on account of an error, omission or irregularity in a charge sheet unless the error, omission or irregularity has occasioned a failure of justice hence giving more weight to the substantive test as opposed to the formalistic test. Even were a conviction to arise from the impugned charge sheet for that appeal to succeed the Applicant would have to satisfy this court that the fact that the charge sheet was signed by a police officer but not by the Officer of the Director of Public Prosecutions occasioned a failure of justice. In other words, the court is obligated to look at the substance of the charge sheet rather than to its form and the charge sheet can only be thrown out if it does not contain sufficient details as would enable the accused person to answer to it or if it does not disclose an offence or if the irregularity, error or omission has occasioned an irregularity or if the prosecution was instituted by a person of office other than that of the Director of Public Prosecutions.

32. In the case of Dickens Odari Bige & Another v Republic [2014] eKLRthe Court of Appeal considered the import of Section 89and90of theCriminal Procedure Code which deal with charge sheets and held:-

“It would appear, then, that there is a legal requirement that a charge sheet be signed to acquire validity to found a complaint against a suspect. But Section 90(2) of the Criminal Procedure Code validates defects in the charge validity of whose proceedings shall not be affected either by a defect of complaint in the charge. In any event, and as ably submitted by Mr. Abele, any error, omission or irregularity in the charge sheet which did not occasion a failure of justice was cured by Section 382 of the said code.”

33. Section 137(1) of the Criminal Procedure Code which set out the rules for framing charges is also emphatic that no charge shall be open to objection in respect of its form or contents if it is framed in accordance with the rules set out in that section. The Applicant has not complained that the Amended Charge Sheet does not conform either to Article 50(2)(b) of the Constitution or to Section 134 of the Criminal Procedure Code or to Section 137 of the Criminal Procedure Code. His complaint is that it is not signed by the Director of Public Prosecutions. My finding is that the rubber stamp and signatures on the charge sheet signify the approval of the Office of the Director of Public Prosecutions to the charges. In any event even if it was not signed the omission is one which in light of the Court of Appeal decision in the case of Dickens Odari Bige (Supra) has been overtaken by Sections 89(5), 90(2), 137and382 of the Criminal Procedure Code and the complaint by the Applicant is not sustainable. My finding is that the real test is whether the charge sheet meets the requirements of Sections 134and137of theCriminal Procedure Code which when read with Section 89 (5)andSection 90and382of theCriminal Procedure Code make the argument by the Applicant completely untenable. I agree with Counsel for the Respondent that the facts of this case are distinguishable from those in the case of Geoffrey K. Sang v Director of Public Prosecutions & 4 others [2020] eKLR because in that case the impugned prosecution was instituted by the Director of Criminal Investigations instead of the Director of Public Prosecutions which was unlawful as the Director of Criminal Investigations does not have power to institute criminal prosecutions that power having been vested solely on the Director of Public Prosecutions by the Constitution.

34. I associate myself with the findings of the Court in the following cases quoted by the Respondent: -

· Kipkurui Arap Sigilai & another v Republic [2004] eKLR

“The principal of the law governing charge sheets is that an accused should be charged with an offence known in law. The offence which such an accused is charged with should be disclosed and stated in a clear and unambiguous manner so that the accused may be able to plead to a specific charge that he can understand. It will also enable an accused person to prepare his defence to the charge. This principal of the law has a constitutional under pinning. (See Section 77 of the Constitution of Kenya).”

Director of Public Prosecutions vs Kuldip Madan & Another [2019] eKLR

“28. Section 89 as a whole falls within a part of the Criminal Procedure Code titled; ‘Institution of Proceedings’, under the sub-heading ‘Making a complaint’. Thus, the sections in this part are concerned with the institution of proceedings through the making of a complaint. This is buttressed by Section 89(1) which states, inter alia, that proceedings may be instituted either by (a) making a complaint or (b) bringing the person arrested before the magistrate. What constitutes the making of a complaint indicated in (a) above is elaborated in Section 89(2) which states, inter alia, that on the basis of reasonable and probable cause that an offence has been committed one may make a complaint regarding the same to a magistrate.

29. The nature of such a complaint is then explored in Section 89(3) which states, inter alia, that the complaint may be oral or in writing and provides for the procedure to be followed in case of an oral complaint. Section 89(4) sets out the duty of a magistrate upon receiving a complaint and mandates him to draw or cause to be drawn a formal charge containing a statement of the offence charged unless such a charge is signed and presented by a police officer. The magistrate then undertakes his mandate under Section 89(4) subject to the provisions of Section 89(5) which allows the court to refuse to admit any complaint or formal charge that does not disclose an offence.

30. It is my view that provisions of subsection (5) appear to have been misconstrued severally by the subordinate courts and this (High Court) as giving wide ranging powers to magistrates to refuse formal charges that are presented to them by prosecutors. I hold the view that this trend ought to be reversed because my interpretation of subsection (5) drives me to hold that the power espoused therein is applicable only with regards to complaint or formal charge made under the entire section. That therefore, a court cannot narrowly interpret subsection (5) without having regard to the intention and purpose of the entire Section 89. A purposeful interpretation must be made.

31. It may be pointed out that the provision refers to both a complaint and formal charge. The "complaint" takes on the meaning set out in Section 89 as ably set out above. That leaves the court to define what a formal charge is under sub-section (5). One may argue that this refers to a charge formally drawn under Section 134. Far from this as the formal charge envisaged therein is a charge that has been reduced into writing by a police officer and presented to the court subsequent to a complaint envisioned by subsections (3) and (4).

32. This is buttressed by Section 90 of the Criminal Procedure Code which echoes the unique nature of Section 89 and offers a parallel procedure for the issuing of warrants and summons when the complaint or formal charge has been brought under Section 89. It is also apparent that the provision of this parallel system of bringing suspects to book was necessary in the old days of Kenya judicial system when the prosecutorial procedure may not have been properly structured and so charges would be drawn in court when a suspect has already been presented upon apprehension. See Lord Wilberforce in Royal College of Nursing of the United Kingdom v. Department of Health and Social Security [1981] AC 800¸that;

“In interpreting an Act of Parliament it is proper, and indeed necessary, to have regard to the state of affairs existing, and known to Parliament to be existing, at the time. It is a fair assumption that Parliament's policy or intention is directed to that state of affairs.”

33. It is my view that the formal charges properly drafted by a police officer or a public prosecutor as is currently the procedure in our jurisdiction should be governed by Sections 134 to 137 of the Criminal Procedure Code. Even if these provisions do not expressly provide for a rejection of a charge, that omission does not fetter the court's inherent powers to control its processes from abuse. This is in view of the fact that courts of superior jurisdiction have settled the jurisprudence that would render a charge sheet defective, which argument can be advanced before a magistrate to persuade the court to reject a charge. Therefore, nothing stops an accused from advancing that a charge sheet is defective within the scope of the settled law after which a court may find accordingly. A magistrate, if persuaded to reject a charge should also address himself to whether the charge satisfies Section 134 of the Criminal Procedure Code. That ought to apply to each charge in the instant application.

34. Having made my observation on the application of Section 89 of the Criminal Procedure Code, I feel that courts should not continue to apply this piece of legislation to reject charges. The provision no longer speaks to the current procedure used of bringing charges to court. It no longer retains the meaning it had when Parliament legislated it.”

35. While I am not persuaded that the Applicant is guilty of laches it is my finding that he has not convinced this court that his complaint goes to the substance of the charge or even that the irregularity he has raised in regard to the signing of charge is one that will occasion him any injustice. He has also not demonstrated that his right to fair hearing is threatened simply by the fact that there is a signature of the OCS Muthaiga Police Station on the Amended charge. Counsel for the prosecution has explained why it became necessary to amend the charges and has categorically stated that the prosecution was institute and is being conducted by officers of the Office of the Director of Public Prosecutions. The Applicant’s contention that the prosecution was instituted by an office other than that which has the constitutional mandate to do so is therefore untenable and it cannot hold. Article 50 of the Constitution has provided sufficient safeguards to accused persons and the fact that the accused person may ultimately be acquitted is not sufficient reason for this court to stop the criminal proceedings. In my view what would be fatal would be proof that the charges and the prosecution were not sanctioned by the office of the Director of Public prosecutions. To my mind the signature and rubber stamp of the Director of Public Prosecution on the charge sheet is also an endorsement that it is that office that is in control of the prosecution and that that office approved the charges but is not merely an acknowledgement of receipt. In the upshot I find no merit in this application I find no justifiable reasons to halt the prosecutions and the Notice of Motion is therefore dismissed with costs to the Respondent. It is ordered.

SIGNED, DATED AND DELIVERED VIRTUALLY THIS 17TH DAY OF MARCH, 2022

E.N. MAINA

JUDGE