[2022] KEHC 1628 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KIAMBU

CRIMINAL APPEAL NO. 55 OF 2019

HITESH PRAVIN DAVE..........................................APPELLANT/APPLICANT

VERSUS

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

KIRITKUMAR BHAGWANDAS KANABAR......1ST INTERESTED PARTY

HARISHKUMAR KANABAR...............................2ND INTERESTED PARTY

RULING

1. The appeal herein arose from Kiambu CM’s Criminal Case No. 1554 of 2017 wherein Hitesh Pravin Dave the Appellant herein was the complainant while the 1st Interested Party, Kiritkumar Bhargwandas Kanabar was the accused. The relevant history is that the criminal case arose from agreements made in 2015 between the Appellant and the 1st Interested Party for the renovation of some properties owned by the Appellant. The Appellant had later filed a complaint with the police against the 1st Interested Party to the effect that he failed to carry out the renovations despite receiving Kshs. 210,000,000/=. The 1st Interested Party was subsequently arraigned before the CM’s Court at Kiambu in Criminal Case Number 1554 of 2017 for the offence of Obtaining money by false pretenses.

2. By an application dated 6th May 2019, the Director of Public Prosecutions (DPP) made an application to withdraw the case against the 1st Interested Party under section 87(a) of the Criminal Procedure Code (CPC). The Appellant was strongly opposed to the application. On 17th June 2019, the trial court allowed the release of the passport temporarily to enable the 1st Interested Party to travel abroad. This order was the subject of the first appeal by the Appellant. On his part, the 1st Interested Party had earlier filed an appeal being HCRA No. 59 of 2018.

3. Eventually, on 5th August 2019 the trial court delivered its ruling allowing the withdrawal application by the DPP. The Appellant, aggrieved by the ruling allowing withdrawal of charges against the 1st Interested Party filed an appeal to the High Court. The new appeal retained the number HCRA. No. 55 of 2019 designated to his previous appeal, relating to the release of the passport to the 1st Interested Party.

4. Three applications arising from the two appeals by the rival parties were canvassed before the High Court and a consolidated ruling delivered on 12th March 2020. In the penultimate paragraph of the ruling, this Court stated as follows:

43. However, as matters now stand there is on record and subsisting the appeal filed on 14th August 2019, to challenge the ruling of the lower court allowing withdrawal of the primary case, and an application filed on 27th September 2019 both by Hitesh, the latter which seeks inter alia an order that Kirit Kumar B. Kanabar and Harishkumar B. Kanabar deposit their respective passports into this court pending the hearing and determination of the appeal. This court therefore directs that prior to the setting down of the motion or the appeal for hearing, the parties herein do address the court on a date to be taken hereafter, on the question of Hitesh’s legal standing or capacity and/or leave granted or to be granted to the said Appellant/Applicant to initiate and prosecute the appeal filed on 14th August 2019. ”

5. The parties duly complied with the above directions by filing their respective submissions on the question. The Appellant’s main argument is that the Victim Protection Act has recognized and given effect to the rights of victims to participate in criminal proceedings. The Appellant submitted that an aggrieved victim has locus to challenge the exercise of the prosecutorial powers vested in the DPP. The Appellant’s counsel cited the case ofHelmuth Rame v Republic (2014) eKLRin support of this submission. Further, he contended that the victim’s right to participation subsists throughout the trial court process and right up to the appellate process, as held in the case of Joseph Lendrix Waswa v Republic (2019) eKLR. Counsel also relied on the case of Leonard Maina Mwangi v Director of Public Prosecutions & 2 others (2017) eKLR cited in Joseph Lendrix Waswa. Counsel therefore urged the court to allow the Appellant to prosecute his appeal.

6. The DPP, citing Article 157 of the Constitution and sections 26 and 27 of the Office of the Director of Public Prosecutions Act took the position that that the DPP is exclusively empowered and mandated to prefer an appeal in a criminal case. While recognizing the role of the victims in a trial as stated in the case of Joseph Lendrix Waswa v R (2019) eKLR,he argued that the exercise of the rights of victims should not prejudice the exercise of the DPP’s prosecutorial powers under the Constitution and the law. He urged the Court to disallow the appeal herein.

7. On his part, Counsel for the 1st Interested Party emphasized the need for the court to strike a balance between the victims’ right to participation in a criminal trial and the accused’s right to a fair trial. He further argued that by virtue of the provisions of section 348A (1) of the Criminal Procedure Code, only the Office of the DPP had the right to prefer an appeal from a decision rendered in a criminal case. In support of his argument, he cited two cases, namely, Haji Ibrahim Ali Hussein v Republic (2017) eKLRandChege Njoroge V Henry Karanja & another (1982) eKLR.Finally, he relied on the case of Joseph Lendrix Waswa v Republic (2019) eKLRto underscore the proposition that prosecutorial powers can only be bestowed upon a victim by express provisions of the law. He asserted that leave ought to be sought before an appeal is filed by a victim, as held in the Indian case of Subhash Chand v State (Delhi Administration)-2013 2 SCC 17. Counsel prayed therefore that the appeal be dismissed.

8. The court has considered the submissions filed by the parties and the history of this appeal as captured in my ruling delivered herein on 12th March 2020. In that ruling, the court directed the parties to address the court “on the question of Hitesh’s (Appellant’s) legal standing or capacity and/or leave granted or to be granted to the said appellant-… to initiate and prosecute the appeal filed on 14th August 2019. ”

9. There is no dispute that the Appellant (Hitesh Pravin Dave), as the complainant/victim of the offence preferred against Kiritkumar Bhagwandas Kanabar was granted leave to participate in the lower court criminal proceedings which terminated on 5/08/2019, when the DPP, the Respondent herein was allowed to withdraw the charges under Section 87(a) CPC, notwithstanding the Appellant’s objection.

10. The right of participation by the victim in criminal cases has been substantially expanded with the enactment of the Victim Protection Act and Court pronouncements in cases such as Joseph Lendrix Waswa v. Republic [2019] eKLR(Court of Appeal), Joseph Lendrix Waswa v. Republic [2019] eKLR (2020) eKLR (Supreme Court) and in IP Veronica Gitahi and Anor v. Republic [2016] eKLR. However, the victim of an offence while a key party in criminal proceedings, ordinarily brings his complaint through the DPP.

11. It is fair to say on the authority of the above decisions and others such as Republic V. Mwaura [1979] KLR 209; Roy Richard Elirema & Anor V. Republic Cr. Appeal No. 67 of 2002;andRepublic v. Pattni [2005] 1 KLR 310 that the term “complainant” in the CPC encompasses both the DPP and the victim of the offence stated in the charge sheet. This does not mean however, that the victim enjoys similar powers as the DPP in criminal prosecutions. For instance, the victim cannot unilaterally withdraw a complaint without the DPP’s approval or make key decisions concerning the prosecution of his case.

12. In Joseph Lendrix Waswa v Republic [2020] eKLR which was an appeal to the Supreme Court from Court of Appeal decision, the Supreme Court observed as follows: -

“(70) A victim can participate in a trial in person or via the legal representative. So then, who determines the manner and extent of a victim’s participation in a trial?

(71) Once a victim of his legal representative makes an application to participate in a trial, it is the duty of the trial court to evaluate the matter before it, consider the victim’s views and concerns, their impact on the accused person’s right to a fair trial, and subsequently, in the Judge’s discretion, determine the extent and manner in which a victim can participate in a trial. Since participatory rights are closely related to the rights of the accused and the right to a fair and expeditious trial, they should be granted in a judicious manner which does not cause undue delay in the proceedings and thus prejudice the rights of the accused”.

13. Implicit in this passage and the guiding principles formulated by the Supreme Court at the end of the above judgment is the endorsement of the practice obtaining in the courts since the passage of the Victim Protection Act. That is, the victim or victim’s representative who wishes to participate in a criminal trial makes an application to the trial court which determines the application for participation and the parameters and scope of such participation.

14. In its decision, the Supreme Court was careful to reiterate the powers of the DPP vis-vis the victim by stating that: -

75. We are of the view that the victim has no active role in the decision to prosecute, or the determination of the charge upon which the accused will finally be tried. This is the sole duty of the DPP. While the victim of a crime can participate at any stage of the proceedings as deemed appropriate by the trial Judge, a victim or his legal representative does not have the mandate to prosecute crimes on behalf of the DPP. The DPP must at all times retain control of, and supervision over the prosecution of the case. As such, the constitutional and statutory powers of the DPP to conduct the prosecution is not affected by the intervention of the victim in the process.

76. Additionally, a victim cannot and does not wear the hat of a secondary prosecutor. When victims present their views and concerns in accord with section 9(2) (a) of the VPA, victims are assisting the trial Judge to obtain a clear picture of what happened (to them) and how they suffered, which the Judge may decide to take into account. Victim participation should meaningfully contribute to the justice process. It must be noted, however, that this does not mean that the Court’s judgment will follow the wishes of the victim. The trial Judge will, of course, take into account the law, facts, all the different interests, and concerns, including the rights of the defence and the interests of a fair trial to arrive at a sagacious decision.”

15. In this case, the sticking point is whether a complainant aggrieved by the decision of the DPP to withdraw a criminal case under section 87(a) of the CPC, allegedly without seeking such participating victim’s view, can unilaterally lodge an appeal against the court’s decision to allow such withdrawal, despite his protestation. The Court of Appeal in Joseph Lendrix Waswa v Republic (2019) eKLR had this to say on matters closely related to the question:

[20] From the foregoing, it is clear that the Constitution and the VPA gives a victim of an offence a right to access justice and a right to fair trial which rights, as Article 20(2) provides, should be enjoyed to the greatest extent consistent with the nature of the right. The right to a fair trial as Article 25 provides is an absolute right. The fact that the rights of an accused person to fair trial are enumerated and the rights of victims of offences are recognized by Article 50(9) but to be stipulated in a legislation indicates that the Constitution intends, as a principle, that the constitutional rights of an accused person to a fair trial should be balanced with the statutory rights of the victim of the offence as stipulated in VPA and further that the rights of the victim of crime should be exercised without prejudice to enumerated rights of an accused person to a fair trial.

[21] The concept of “watching brief” in a criminal trial where an advocate for the victim does not play any active role in the trial process is now outdated. The Constitution and the VPA now gives a victim of an offence a right to a fair trial and right to be heard in the trial process to assist the court, and not the prosecutor, in the administration of justice so as to reach a just decision in the case having regard to public interest. That right of the victim to be heard persists throughout the trial process and continues to the appellate process.

[22] The constitutional and statutory role of the DPP to conduct the prosecution is not affected by the intervention of the victim in the process. The nature and scope of the victim’s intervention prescribed by the VPA should be interpreted in conformity with the Constitution and implemented by the trial court at the appropriate stages of proceedings as the justice of each case requires. It is the duty of the trial court to conduct a fair trial and to protect and promote the principles of the Constitution (Article 159(2) (e)).

The rights granted to victims of offences just like the rights conferred by the Bill of Rights are to be liberally construed. Some rights in the trial process are stipulated in the VPA, such as the right to submit information during plea bargaining, bail hearing and sentencing (section 20, section 12), the right to adduce evidence which has been left out and to give oral evidence or written submissions (section 13)”.

16. The 1st Interested Party has relied on the provisions of Section 348A of the Criminal Procedure Code to argue that only the DPP can appeal against a decision to acquit an accused person. Citing among others the decision in Haji Ibrahim Ali Hussein v. R. [2017] e KLR and the decision of Joseph Lendrix Waswa in the Supreme Court, he correctly asserts that the Kenyan jurisprudence has not elevated the role of the complainant to that of a prosecutor. In the Haji Ibrahim Ali Hussein case, Dulu J. accepted as valid an appeal filed by the complainant, with the concession of the DPP. The learned Judge stated that:

“This is an appeal against acquittal. In ordinary circumstances, such appeal is the preserve of the state or the Director of Public Prosecutions (DPP) under section 348A of the criminal Procedure Code which states:

“—When an accused person has been acquitted in a trial before a subordinate court, or where an order refusing to admit a complaint or charge, or an order dismissing the charge has been made by a subordinate court, the Attorney General (now DPP) may appeal to the High Court from the acquittal or order made on a point of law”.

This appeal was however filed by the complainant and Mr. Okemwa for the DPP stated…he was comfortable with Mr. Dola Indidis proceeding with the appeal…

Ordinarily, an appeal for an acquittal such as the present would have emanated from the DPP. The DPP has however not appealed but the principal prosecuting counsel Mr. Okemwa… has agreed that the matter be prosecuted by Mr. Dola Indidis for the complainant…

I will thus treat this as a valid appeal, conceded to by the DPP who is entitled to bring the same.

Even if I am wrong on the above decision, in my view this is a matter in which this court can invoke its criminal revision jurisdiction under Section 362 of the Criminal Procedure Code …since the alleged irregularity of the trial court has been brought to the attention of the court, by the complainant who does not have a right of appeal.

Therefore, in my view, under section 362 and section 364 of the Criminal Procedure Code, this court can still consider the record of the trial court, and the complaints raised in the memorandum of appeal, and decide on the correctness, legality or propriety of the findings or orders made by the trial court”.

17. I entirely agree with the approach adopted by the learned judge. The approach upholds on one hand, the rights of the victim under the Constitution and the Victim Protection Act, and on the other, the mandate of the Director of Public Prosecutions under Article 157 of the Constitution and the Office of the Director of Public Prosecutions Act.The Accused person was heard as he too participated in the proceedings.See also Helmuth Rame V. R. [2014[] eKLR.

18. In the instant case, the DPP successfully withdrew the charges facing the 1st Interested Party in the lower court, leading to a discharge of the said accused, and therefore the DPP does not concede to the appeal from that decision as brought herein by the Appellant. However, the Appellant is aggrieved by the decision, as particularized in the memorandum of appeal. No authority has been cited to extend the right of lodging an appeal in respect of such a decision to the complainant. Indeed, the provisions of Victim Protection Act and the pronouncements of superior courts reinforce the nature of the victim’s involvement in trials or appellate process as participatory, though active, and not passive.

19. As Lesiit J (as she then was), observed in Leonard Maina Mwangi V Dpp & 2 Others (2017) eKLR:

“Having considered this application and the submissions by counsel, I find that the victims’ right to participation in the trial process subsists throughout the court process and is not passive but active within the limits set herein. I find that the participation of the victims is a non-derogable right under Article 25 of the Constitution.

20. This right subsists all the way from the trial process to the appellate process, as stated by the Court of Appeal in Joseph Lendrix Waswa v Republic (2019) e KLR but does not confer upon victims the same status or mandate as the DPP, as the Supreme Court emphasized in Joseph Lendrix Waswa v Republic (2020) eKLR. Thus, within our current legal framework and jurisprudence, the option of a direct and unilateral appeal from a decision in a criminal trial, by an aggrieved victim of crime/complainant appears unavailable.

21. It would seem that the rationale for vesting the mandate to prosecute criminal cases and appeals exclusively in the State through the DPP is the public interest element, as stated by the Supreme Court in Joseph Lendrix Waswa (2020).The Court outlined the public interest involved in the criminal process by stating: -

“… The state controls the investigation, prosecution and punishment of crime and ………. it does so in the interests of the public, which include vindication for the victim. A philosophical reason why the State takes over the prosecution and punishment of offenders is the belief that criminal law should serve the interest of society as a whole, and not the individual victim.”

22. The court then proceeded to highlight and affirm the independent mandate of the DPP under Article 157 and the Office of the Director of Prosecutions Act and particularly the quasi-judicial nature of the decision to prosecute (or not to) before stating that:

“76. We are of the view that the victim has no active role in the decision to prosecute, or the determination of the charge upon which the accused will finally be tried. This is the sole duty of the DPP. While the victim of a crime can participate at any stage of the proceedings as deemed appropriate by the trial Judge, a victim of his representation does not have the mandate to prosecute crimes on behalf of the DPP. The DPP must at all times retain control of, and supervision over the prosecution of the case. As such, the constitutional and statutory powers of the DPP to conduct the prosecution is not affected by the intervention of the victim in the process.

77. Additionally a victim cannot and does not wear the hat of a secondary prosecutor. When victims present their views and concerns in accordance with Section 9(2) (a) of the VPA (they) are assisting the trial Judge to obtain a clear picture of what happened (to them) and how they suffered, which the Judge may decide to take into account.”

23. The court also emphasized that the exercise of the participatory rights of the victim should not prejudice the rights of accused persons. Perhaps a time is coming when our jurisprudence will adopt the procedure of special leave to a complainant to directly appeal from a decision in a criminal case, as advocated by the Appellant herein citing the Indian case of Subhash Chand V State (Delhi Administration)(supra). For now, aggrieved victims do not enjoy the right of appeal against a trial court’s order allowing the DPP’s application to withdraw criminal charges. Depending on the nature of his grievance, such a victim may, pursuant to their non-derogable rights under Article 50 (1) and (9) of the Constitution and the Victim Protection Act, challenge the DPP’s decision by way of judicial review, or invoke the criminal revision jurisdiction of the High Court under Section 362 CPC.

24. For all the foregoing reasons, this court finds that the Appellant herein has no right of appeal in this instance. However, the Court is not persuaded that it would be just in the circumstances of the case to dismiss or strike out the appeal herein. Instead, in furtherance of the interest of justice and pursuant to Article 259 2(d) of the Constitution, the Court is persuaded to proceed in the manner proposed by Dulu J in Haji Ibrahim Ali Hussein so as to give effect to the victim’s rights under Article 50 of the Constitution and the Victim Protection Act. Hence, the Court will taking note of matters raised in the Petition of Appeal filed by the Appellant on 14th August 2019 deem the said Petition to be the equivalent of an application or request invoking the criminal revision jurisdiction of the High Court under Section 362 of the Criminal Procedure Code. The matter will henceforth proceed as a criminal revision proceeding under section 362 of the CPC, and not as an appeal, with all parties participating accordingly.

DELIVERED AND SIGNED ELECTRONICALLY ON THIS 10TH DAY OF MARCH 2022.

C. MEOLI

JUDGE

In the presence of:

For the Appellant: Mr Kandia h/b for Mr Murage

Mr Kandia h/b for DPP

For the 1st Interested Party: Ms. Gichuki h/b for Mr Kyalo Mbobu

For the 2nd Interested Party: N/A

C/A: Carol