Republic v Directorate of Criminal Investigations & 3 others; Weru (Ex parte Applicant) (Judicial Review Application E079 of 2023) [2026] KEHC 13189 (KLR) (31 August 2026) (Ruling)

 **REPUBLIC OF KENYA** **IN THE HIGH COURT KENYA AT KERUGOYA** **JUDICIAL REVIEW APPLICATION NO. E079 OF 2023** **REPUBLIC……………............………….….………………….…...…….......APPLICANT** **VERSUS** **THE DIRECTORATE OF CRIMINAL INVESTIGATIONS.............1ST RESPONDENT** **THE DIRECTOR OF PUBLIC PROSECUTIONS .............................2ND RESPONDENT** **THE CHIEF MAGISTRATE COURT KERUGOYA ........................3RD RESPONDENT** **OFFICE OF THE ATTORNEY GENERAL .......................................4TH RESPONDENT** **AND** **DAVID CRISPO WERU……….…………..................................EX PARTE APPLICANT** **RULING** 1. Upon the ex parte applicant’s main Notice of Motion dated 3rd August 2023, seeking stay of the criminal proceedings herein, the determination of the Court, the Judgment herein was in the following terms: *“****Determination*** *33. The Court has not seen any evidence that the DPP was in its decision to charge acting ultra vires the proper purpose of a prosecution to charge criminal offences and punish offenders in accordance with the law. The mere fact that the facts relied on to prosecute a crime may also be relied on in a pending or impending civil suit is not a bar to prosecution as set out in section 193 A of the Criminal Procedure Code, which provides:* ***“193A. Concurrent criminal and civil proceedings*** *Notwithstanding the provisions of any other written law, the fact that any matter in issue in any criminal proceedings is also directly or substantially in issue in any pending civil proceedings shall not be a ground for any stay, prohibition or delay of the criminal proceedings.* *[Act No. 5 of 2003, s. 79.]”.* *34. The Judicial review proceedings herein are only valid to the extent that the trial Court is in the exercise of its criminal jurisdiction under section 6 of the Magistrate’s Act enjoined to observe the Bill of Rights in the Constitution of Kenya which guarantees a fair trial to all accused persons, and which under Article 19 is an integral part of Kenya’s democratic state and under Article 20 “applies to all law and binds all State organs and all persons.”* *35. Under Article 50 (2 of the Constitution of Kenya to have* ***adequate time and facilities to prepare a defence****; to be* ***informed in advance of the charge and evidence the prosecution intends to rely on****, and to* ***have reasonable access to that evidence;*** *and to* ***adduce and challenge evidence****.* *36. Article 50 (2) of the Constitution provides in full as follows:* ***“(2) Every accused person has the right to a fair trial, which includes the right—*** * + - 1. *to be presumed innocent until the contrary is proved;* 2. ***to be informed of the charge, with sufficient detail to answer it;*** 3. ***to have adequate time and facilities to prepare a defence;*** 4. *to a public trial before a court established under this Constitution;* 5. *to have the trial begin and conclude without unreasonable delay;* 6. *to be present when being tried, unless the conduct of the accused person makes it impossible for the trial to proceed;* 7. *to choose, and be represented by, an advocate, and to be informed of this right promptly;* 8. *to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly;* 9. *to remain silent, and not to testify during the proceedings;* 10. ***to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence;*** 11. ***to adduce and challenge evidence;*** 12. *to refuse to give self-incriminating evidence;* 13. *to have the assistance of an interpreter without payment if the accused person cannot understand the language used at the trial;* 14. *not to be convicted for an act or omission that at the time it was committed or omitted was not— (i) an offence in Kenya; or (ii) a crime under international law;* 15. *not to be tried for an offence in respect of an act or omission for which the accused person has previously been either acquitted or convicted;* 16. *to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing; and* 17. *if convicted, to appeal to, or apply for review by, a higher court as prescribed by law.”* *37. The subset rights to information of the charge in sufficient detail to answer it, prior information of the evidence relied on by the defence and opportunity to challenge such evidence and adduce rebuttal evidence as well as the provision of adequate facility for preparation of his defence requires, in this case, that the Petitioner who has been certified to suffer disorders of hearing and sight to be facilitated and provided with necessary the facility or equipment to enable him understand and follow his trial so that he can follow his trial and effectively exercise the right of fair trial to challenge evidence produced by the Prosecution and adduce evidence in his defence.* *38. While the Court upholds the DPP’s mandate to prosecute and the trial Court to try criminal charges for alleged offences, it must also protect and enforce the rights of the accused to a fair trial in the circumstances of the particular case. In this case, upon the findings of the trial Court as to the accused’s disability, it is appropriate that measures to protect violation of the accused’s fair trial rights must be taken.* *39. Consequently, only the order of certiorari to quash the proceedings of trial court taken without observance of the accused’s right to a fair trial may be granted. The Court considers that a proper trial of the accused despite the disabilities relevant in this case is possible if the prosecution and the trial Court makes the necessary facilitative arrangements.* *40.The Court considers that the DPP must be given opportunity to propose adequate measures for such protection and in the meantime stay the criminal proceedings pending such provision of facilities for fair trial of the accused.* ***ORDERS*** *41. Accordingly, the Court having ascertained from the medical evidence given on the applicant that the applicant suffers a disability affecting his ability to follow the proceedings, the proceedings of the trial court taken without such measures for the protection and enforcement of his right to fair trial are quashed and the Court grants the Order for certiorari as prayed in Prayer no. 3 of the Notice of Motion that –* *“An order of certiorari remove into this Honourable Court and quash the orders of 21st June, 2023 issued by Hon. Alex Ithuku to proceed with the hearing in* ***MCCR/E411/2023 REPUBLIC-V-DAVID CRISPO WERU & ANOTHER*** *and the subsequent proceedings in court.”* *42. The prayer No. 4 for an Order of Prohibition to restrain further trial is declined.* *43. The Prosecution must now indicate what measures it intends to take to ensure that his right to trial is not violated and, therefore, a Report on the measures that the Prosecution shall put in place for the giving effect of the rights to fair trial herein above identified by the Court shall be filed within 30 (days).* *44. However, pending the confirmation by this court upon a report to be filed by the prosecution that measures have been taken for the assistance of the accused in challenging the Prosecution‘s case, and the preparation and presentation of his defence, the trial before the trial court shall be stayed for thirty (30) days.* *45. There shall be no order as to costs.”* 1. Pursuant to the said court’s orders dated 3/7/2025 requiring the prosecution to make the necessary facilitative measures to enable the applicant to understand and effectively exercise his right to a fair trial, the prosecution filed the report dated 6/3/2026. In that report, the prosecution pointed out the measures it had put in place to ensure the rights of the applicant under Article 50 of the Constitution were guaranteed. **It urges that the applicant has all along been represented by counsel and an intermediary has since been appointed to aid in relaying information from and to the applicant. It further urges that it had conceded to the defence’s request to dispense with the attendance of the applicant so that he could seek medical attention.** It was therefore its contention that the measures enumerated demonstrated its commitment to adhering to the constitutional dictates and the orders of the court. 2. The applicant’s counsel filed written submissions dated 23/7/2026 in response to the prosecution’s said report. Counsel urges that the issue before this court is not whether the applicant has been supplied with witness statements or afforded legal representation, and neither is it whether hearing dates have been allocated or witnesses made available for cross examination, but **whether the applicant possesses the capacity to hear, see, comprehend and meaningfully participate in the proceedings.** Counsel cites ***State v Onyore (Criminal Case E036 of 2021) [2022] KEHC 11070 (KLR) (30 June 2022) (Judgment)***, where the court noted that; ***“Thus it is clear that the role of an intermediary cannot be to offer evidence on behalf of a vulnerable complainant and or an accused person, but to assist such vulnerable person or accused present their own case or position in court by way of evidence. In such cases, it is the witness who will be cross examined through the intermediary and not the intermediary.”*** 3. Counsel further cites ***John Kinyua Nathan v Republic [2017] eKLR***, where the Court of Appeal expressed itself as follows: ***“The expertise, possession of special knowledge or relationship with the witness must be ascertained by the trial court through examination of the prospective intermediary before the court appoints him or her. It goes without saying, in view of that role, that an intermediary must subscribe to an appropriate oath ahead of the witness’ testimony, understanding to convey correctly and to the best of his/her ability the general purport of the evidence. The trial court must then give directions to delineate the extent of the intermediary’s participation in the proceedings.”*** 4. Counsel urges that an intermediary may facilitate communication, but **cannot replace the applicant’s own constitutional entitlement to personally hear the witnesses, observe the evidence, appreciate the demeanour of those testifying against him and provide meaningful instructions to counsel as the proceedings unfold. Counsel urges that the appointment of counsel, while indispensable, cannot enable the applicant to hear evidence that he is physically incapable of hearing. Similarly, disclosure of witness statements and documentary evidence does not address the applicant’s inability to read documents owing to his severe visual impairment, nor does the allocation of adequate time enable him to overcome permanent sensory limitations arising from advanced age and deteriorating health. Counsel urges that the measures outlined in the prosecution’s report, though well intentioned and constitutionally significant, are insufficient to secure the applicant’s fair trial rights in light of his advanced age, severe hearing impairment, profound visual impairment and overall medical condition.** **Analysis and Determination** 1. Having duly considered the respective arguments by the prosecution and the defence, the sole issue for determination is whether the measures said to have been put in place are indeed adequate to safeguard the applicant’s right to a fair trial under Article 50 of the Constitution. 2. The Prosecution contends that the applicant has been supplied with **the necessary documentation to prepare for his defence and an intermediary has been appointed to rely information to and from the applicant.** Those measures are said according to the defence, only to address the procedural aspects of a fair trial, as they do not take into account **the undisputed medical realities of the applicant, namely his inability to see, hear, comprehend and meaningfully participate in the proceedings.** 3. The question that then begs is whether, and to what extent, an intermediary can properly stand assist the applicant who, by reason of a combined visual and hearing impairment, may be unable to comprehend the trial process. 4. Article 50 (7) of the Constitution provides that, **“In the interest of justice, a court may allow an intermediary to assist a complainant or an accused person to communicate with the court.”** 5. In ***M.M v Republic [2014] KECA 441 (KLR)***, the Court of Appeal was candid that; ***“The intermediary’s role is to communicate to the witness the questions put to the witness and to communicate to the court the answers from the victim to the person asking the questions, and to explain such questions or answers, so far as necessary for them to be understood by the witness or person asking questions in a manner understandable to the victim, while at the same time according the victim protection from unfamiliar environment and hostile cross- examination; to monitor the witness’ emotional and psychological state and concentration, and to alert the trial court of any difficulties…Because of the reality that a child of tender years, or an extremely old person, or a person affected by disease of the body or mind or even a lunatic may have difficulties relating to the trial court events in a crime, the role of an intermediary in such situations is imperative…The whole object of the proceedings through an intermediary is to achieve fairness in the determination of the rights of all the people involved in a trial and to promote the welfare of a child or vulnerable witness.”*** 1. As counselled by the Court of Appeal in ***M.M v R (supra)***, the role of an intermediary is confined to conveying information to and from the accused person and interpreting the proceedings. It is, therefore, clear that notwithstanding an intermediary’s assistance, an accused person must retain personal comprehension of the nature and course of the proceedings, for the trial to be deemed fair. 2. This court considers that with appropriate support from the intermediary and learned counsel, the applicant, if possessed of such personal competencies of ability to plead will be sufficiently capable of comprehending and effectively participating in the proceedings before the trial court. 3. This Court is aware of the UN Residual Mechanism case for ***Felicien Kabuga*** [***UN International Residual Mechanism for Criminal Tribunals*** *Case No.: MICT-13-38-AR80.3, Appeals Chamber decision of 7 August 2023 PROSECUTOR v. FÉLICIEN KABUGA DECISION ON APPEALS OF FURTHER DECISION ON FÉLICIEN KABUGA’S FITNESS TO STAND TRIAL]* where the accused who was on trial for war crimes was found to be unfit to stand trial by the trial chamber and his trial stayed by the Appeals Chamber which agreed with the trial chamber as to the accused’s disability to follow his trial on account of his dementia and permanently stayed his trial (for which the trial chamber had, following its finding on his state of mind, adopted a special procedure for trial without possibility of conviction), as follows: *“28. Similarly unpersuasive is the Prosecution’s assertion that, in assessing Kabuga’s fitness to stand trial, the Trial Chamber failed to consider counsel’s role in representing Kabuga. In the Impugned Decision, the Trial Chamber specifically noted the Experts’ agreement that Kabuga lacked the crucial capacity to instruct counsel. In this regard, the Trial Chamber considered expert evidence that Kabuga was no longer able to follow a regular conversation at a normal pace or be engaged in a rational conversation with any substance or coherence, could follow proceedings or understand evidence only at the most superficial level, and was unable to understand the reasoning behind questions asked in court. The Trial Chamber also noted evidence that the Experts struggled to elicit even very simple pieces of information from him. On this basis, the Trial Chamber concluded that Kabuga was incapable of instructing counsel. The Appeals Chamber recalls that an accused’s ability to meaningfully participate in trial is contingent on whether he or she possesses the mental capacity to communicate, and thus consult, with counsel. Indeed, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (“ICTY”) has expressly acknowledged that an accused’s capacity to instruct counsel is among a non-exhaustive list of rights “essential for determination of an accused’s fitness to stand trial”. In view of the Trial Chamber’s detailed considerations, the Prosecution fails to show that the Trial Chamber applied an incorrect legal standard by failing to account for the role of counsel in the context of a represented accused.”* 1. The finding of accused’s ability or inability to plead or follow his trial is a function of the trial court which also considers the proof of the offences by the evidence adduced and the examination of witness before the Court. It is not for the constitutional or appellate court to make original determination as to the validity of the charges, the proof thereof or the accused’s mental ability to plead or follow his trial and make necessary defences. 2. However, apart from merely providing a person who helps the accused communicate with the Court, the trial court must satisfy itself that the accused is able to follow his proceedings and make his defence. The Appeals Chamber in the ***Kabuga*** case agreed that ability to plead or make his defence requires certain competences on the part of the accused, as follows: *“23. The Appeals Chamber recalls that the applicable standard for determining whether an accused is fit to stand trial is that of meaningful participation, which allows the accused to exercise his fair trial rights to such a degree that he is able to participate effectively in his trial and has an understanding of the essentials of the proceedings.* ***The non-exhaustive list of capacities to be evaluated when assessing an accused’s fitness to stand trial include the ability to: (i) plead; (ii) understand the nature of the charges; (iii) understand the course of the proceedings; (iv) understand the details of the evidence; (v) instruct counsel; (vi) understand the consequences of the proceedings; and (vii) testify.*** *What is therefore required for an accused to be deemed fit to stand trial is* ***an overall capacity allowing for a meaningful participation in the trial, provided that he is duly represented by counsel.*** *The Appeals Chamber notes that, in the Impugned Decision, the Trial Chamber correctly articulated the applicable legal standard.* *24. The Appeals Chamber further recalls that an accused represented by counsel cannot be expected to have the same understanding of the material related to his case as a qualified and experienced lawyer. Processing the wealth of complex information, inherent in international criminal proceedings, is the role of defence counsel in order to advise their clients. Indeed, the standard of fitness to stand trial indicates that “a defendant may sometimes require assistance to participate in the proceedings”.* 1. Should the trial court subsequently form the view that, notwithstanding such support by the intermediary and Counsel, the applicant’s fundamental rights are likely to be violated, it shall have the power to issue such directions, as may be necessary, to ensure the ends of justice are duly met. 2. If the trial court considers that the accused is not able to plead, follow his trial and make his defence, the trial court shall make that determination and deal with the accused in accordance with the law, including an order for treatment if feasible. If the trial Court finds that the accused is not able to follow his trial proceedings on account of mental disability and medical evidence confirms that the accused’s condition is not capable of treatment, reversal or improvement, the trial court may state the case or the prosecution or the accused may move the Constitutional Court for an order to stop the trial, as the Magistrate’s Court’s section 8 jurisdiction on human rights relates only to questions of Article 25(a) and (b) of the Constitution on *“(a) freedom from torture and cruel, inhuman or degrading treatment or punishment; (b) freedom from slavery or servitude”.* 3. The question of fair trial under Article 25 (c) of the Constitution is the province of the High Court. The finding of guilt or of inability to stand trial is a matter for the trial court. If despite provision of such facilities as necessary in hte particular case in terms of Article 50 (2) to prepare his defence and challenge and lead evidence, it is established that the accused is not able to make his defence, the trial court shall so determine and this Constitutional Court may so declare on appeal or reference from such finding of the trial court. **ORDERS** 1. Accordingly, for the reasons set out above, the Court finds that the DPP has by its report put into place measures for the assistance of the accused by availing him the facility of an intermediary and for opportunity to seek medical treatment to enable the accused’s effective comprehension and defence of the charges, with aid of his counsel, and to suitably communicate with the Court in the course of the proceedings. 2. If, despite such provision of measures to facilitate fair trial, the trial court finds the accused to be incapable of understanding and defending the case he has to answer in the charges that he faces, the trial court shall make a determination, which may be subject of appeal or reference to this court. 3. Consequently, the applicant’s trial shall be set to proceed before the trial magistrate’s court on a date to be given by that Court. 4. Directions for that purpose before the trial Court on **15/9/2026.** 5. There shall be no order as to costs. *Order accordingly.* **DATED AND DELIVERED THIS 31ST DAY OF AUGUST 2026.** **EDWARD M. MURIITHI** **JUDGE** **Appearances:** Ms. Wairimu for Ex parte Applicant. Mr. Mamba/ Mr. Mwangi for the DPP Ms. J. Edward and Mr. Kariuki for the AG.