[2022] KEHC 1661 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KITUI

HIGH COURT CRIMINAL REVISION CASE NO. EO22 OF 2021

JONES MUTHUI NGEU................APPELLANT

VERSUS

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

From original conviction and sentence in criminal case no. 196 of 2019 of the Kyuso Magistrate’s Court at Kyuso

R U L I N G

1. Jones Muthui Ngeu, the applicant herein, has invoked revisionary powers of this court under Section 362 of the Criminal Procedure Code. The applicant is facing a charge of destroying trees Contrary to Section 334 (c) of the Penal Code vide Kyuso Principal’s Magistrate’s Court Criminal Case No. 196 of 2019. The particulars are that on the 12th August, 2019 at Mumoni sub-county within Kitui County, he willfully destroyed trees belonging to one Jacob Mbuvi Musee, the Complainant in that cited case.

2. The record of proceedings from the lower court which this court called for and perused, shows that the trial went on and five prosecution witnesses had testified when on 15th February 2021, as PW5 9PC Augustine Mwangi) testified, the defence objected to production of some exhibits by the said witness claiming that it had never been supplied with the documents (photographs) sought to be tendered. The applicant citing the provisions of Article 50 (2) of the Constitution argued that he had a right to be supplied with documents sought be relied by the prosecution beforehand and that he was being ambushed as he had just been supplied with the said documents that morning. This is what the defence counsel submitted at the trial court;

‘‘I object to production of exhibit. Accused was charged in 2019. Exhibit memo was never supplied to us until this morning. Article 50(2) of the Constitution of 2010 states that the accused has a right to be supplied with all evidence the prosecution would rely in advance. Four witnesses have already testified. Admitting it would be violating accused right to fair trial which is an absolute right and prejudicial (sic).’’

3. In response to the defence objection, the prosecution conceded and asked the court to give time to the defence to go through the documents. It asked for another date for further hearing.

4. The trial court sustained the objection by the defence holding that the photographs (exhibits) had not even been identified by any of the witnesses who had testified. This made the prosecution to apply for adjournment in order to recall the complainant at the same time it applied to stand down the witnesses from the witness box. The trial court obliged citing ‘‘interests of substantive justice.’’

5. That is the ruling that set in motion, the application dated 16th February, 2021 for revision that is now before this court. The applicant in his application faults the prosecution for trying to introduce new evidence when the trial had proceeded ‘‘substantially’’ in his view. He further claims that the learned trial magistrate declined him a chance to recall witnesses for further cross-examination which I find strange because the proceedings from the trial court do not reveal any attempt by the applicant to have any witness recalled.

6. The applicant further contends that by allowing evidence to be tendered two years after the trial had started would destroy his defence because he feels the issues cropped up during cross examination of the 4 witnesses who had testified.

7. He asks this court to intervene contending that the issues pointed out are not mere technicalities but in his view the issues are grave because they violate his right as an accused person under Article 50 (2) (j) and Article 25 of the Constitution of Kenya 2010.

8. The complainant through counsel has opposed this application saying that the prosecution should not be hindered in tendering evidence to prove its case since they have an obligation to prove their case beyond doubt. He relies on Gordon Omondi Ochieng versus Republic [2021] eKLR and Miller versus Ministry of Pension (1947) 2 AU ER 372.

He further contends that he also has a right to a fair trial and has relied on Republic versus Emilio Njoka Mwaniki [2021] eKLR.

9. This court has considered this application and the grounds advanced. For the record, the Office of the Director of Public Prosecution though invited to make is representations over the application expressed no opinion on it stating that it wished to leave the matter to this court. The complainant on his part requested for a chance to be heard which was granted. He filed submissions in opposition which I have considered.

10. This court is conferred with supervisory jurisdiction under Article 165 (6) and (7) of the Constitution of Kenya 2010, over subordinate court. This court under its supervisory jurisdiction is empowered to make any order or give any direction it considers appropriate to ensure fair administration of justice. These powers have not been invoked herein.

11. The applicant has invoked the revisionary powers under Section 362 of the C.P.C which states;

‘‘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, as to the regularity of any proceedings of any such subordinate court.’’

12. The revisionary powers conferred to this court therefore going by the above provision are to enable this court to call for a matter pending or finalized from the lower court with a view to satisfying itself as to legality, correctness or propriety of any finding, ruling or order passed.

13. This court can do so in its own motion or upon being party through an application or even a letter as the applicant has done herein.

14. The applicant as I have observed above is seeking the revision of the trial court’s order and the setting aside of the order made on 15th December, 2020 allowing the prosecution to recall the complainant to identify some exhibits sought to be produced by PW5, the Investigating Officer.

The applicant’s other contention that he was not given a chance to recall a witness to cross examination is without any basis and as I have already observed, the same is unfounded.

15. I have noted from the record of proceedings from the lower court that the trial court was concerned by the delay in the trial caused by the prosecution but that notwithstanding it states that the court was giving a chance to the prosecution for the interest of justice.

16. This court has noted from the proceedings from the lower court that the prosecution did disclose as shown in the exhibit form that it intended to produce photographs. The deductions made shows that the applicant was aware of production of the photographs at some stage. The only issue is that the defence was not supplied with the said exhibits as stipulated under Article 50 (2) of the Constitution of Kenya. The mischief was however cured when the court allowed more time to the defence to peruse the said exhibits. The trial court went further directed for recalling of the complainant with a view to identifying the said photographs. That in my view was in order because for the interest of justice cuts both ways. The interests if the complainant as well as the accused must be balanced delicately on the scales of justice. It is not in the interest of justice to hinder unnecessarily a party from accessing justice by denying him/her a chance to present evidence in court so long as the defence is given adequate opportunity to interrogate and challenge the authenticity of the same. In this instance as I have observed, the applicant was not denied that chance contrary to what he says. In Thuita Mwangi & 2 Others versus Ethics and Anticorruption Commission & 2 Others the court made the following observations: -

‘‘The right to be provided with material the prosecution wishes to rely on is not a one off event but is a process that continues throughout the trial period from the time the trial starts when the plea is taken. The reality is that there will be instances where all the information relating to investigation may not all be available at the time of charging the subject or taking the plea. The disclosure of evidence, both inculpatory and exculpatory, is easily dealt with during the trial as the duty to provide the material is a continuing one and the Magistrate is entitled to give such orders and directions as are necessary to effect this right. When the fresh material is provided the accused is entitled to have the time and opportunity to prepare their defense.’’

17. The trial at the subordinate court relates to an offence of destroying trees. The photographic evidence pertaining the scene where the offence is reported to have taken place is necessary to enable trial court reach an informed decision That is exactly what the trial court held in its ruling and it cannot be faulted in that regard because that will serve the ends of justice.

In the premises this court finds no merit in this application for revision. The order made by the trial court was correct and appropriate in the circumstances. I dwelt that the file be taken back to the trial court for mention for further orders with a rider that the matter be fast tracked for the interest of justice. Towards that end, I direct that the matter be mentioned on 28th March, 2022 before duty court in Kyuso Law Courts for further orders.

DATED, SIGNED AND DELIVERED AT KITUI THIS 9TH DAY OF MARCH, 2022.

HON. JUSTICE R. K. LIMO

JUDGE