[2022] KEHC 2208 (KLR)

Kabundu v Mombasa Government of Kenya; Office of DPP & 5 others (Interested Parties) (Miscellaneous Criminal Application 14 of 2020) [2022] KEHC 2208 (KLR) (10 February 2022) (Ruling)

Patrick Kabundu v Mombasa Government of Kenya; Office of Dpp & 5 others (Interested parties)

Neutral citation: [2022] KEHC 2208 (KLR)

Republic of Kenya

In the High Court at Mombasa

Miscellaneous Criminal Application 14 of 2020

A. Ong’injo, J

February 10, 2022

Between

Patrick Kabundu

Applicant

and

Mombasa Government Of Kenya

Respondent

and

The Office Of Dpp

Interested Party

The Chief Magistrate Mombasa

Interested Party

Peter Gichamba

Interested Party

The Attorney General Office

Interested Party

The Judicial Service Commission

Interested Party

The National Police Service

Interested Party

Ruling

1. By a Notice of Motion dated 18th August 2021 the Applicant Patrick Kabundu sought that the order in Ruling delivered on 25th February 2021 be reviewed and/or set aside and that an order do issue that County Criminal Case No. 3867 of 2018, Mombasa County Government v Patrick Kabundu & Peter Gichamba be recalled, heard and determined by this court.

2. The Applicant also sought that the court reviews and reinstates the amended Notice of Motion application dated 27th February 2020 for hearing and determination. That the proceedings in Mombasa County Criminal Case No. 3867 of 2018 be stayed, and he sought for leave to appeal out of time.

3. The Application is based on grounds on the face of the application and affidavit of the Applicant sworn on 18th August 2021.

4. By a Certificate of Urgency filed on 1. 10. 2021, the applicant sought that warrant of arrest issued against him in Mombasa County Criminal Case No. 3867 of 2018 on 30. 08. 2021 be set aside as his application in the High Court seeks to close the subject unconstitutional court in breach of Article 50(2)(d) of the Constitution of Kenya, 2010.

Response 5. The application was opposed by the Respondent’s Replying Affidavit sworn on 18th October 2021 by Carol Masai, the Compliance Officer with the County Government of Mombasa. She averred that the Applicant seeks to curtail the proceedings in Mombasa Chief Magistrate’s Court Criminal Case No. 3867 of 2018 by filing the application herein.

6. The deponent of the Replying Affidavit argued that the Applicant deliberately failed to appear in court and this prompted the trial court to issue a warrant of arrest, and that the Applicant was hoodwinking the court to grant him a stay of proceedings. The deponent read mischief on the part of the Applicant who had filed Petition No. 5 of 2018 as well as the application herein in a bid to sabotage the trial in Criminal Case No. 3867 of 2018.

7. The Application was canvassed by way of written submissions. The Applicant filed his submissions on 26th October 2021 whereas the Respondent filed on 12th November 2021.

Analysis and Determination 8. Having considered the application by the Applicant, the response by the Respondent and accompanying submissions, the issues for determination are:-i.Whether the Amended Notice of Motion dated 27th February 2020 should be reviewed and reinstatedii.Whether the Applicant has satisfied the grounds for review/setting aside of the ruling delivered on 25th February 2021iii.Whether this court should invoke its jurisdiction under Article 165 (6) & (7) of the Constitution of Kenya 2010 to call and hear Mombasa CMC Cr. No. 3867 of 2018iv.Whether proceedings in Mombasa CMC Cr. No. 3867 of 2018 should be stayedv.Whether leave should be granted to the Applicant to file an appeal out of time

Whether the Amended Notice of Motion dated 27th February 2020 should be reviewed and reinstated 9. In the ruling delivered on 25th February 2021, the court found that the Amended Notice of Motion dated 27th February 2020 was not accompanied by a Supporting Affidavit and the Supplementary Affidavit filed on 14th October 2021 was neither signed nor dated.

10. That application was struck out for failure to comply with Order 50 Rule 3 of the Civil Procedure Rules. This position is reinforced by the holdings in Mwala Land Disputes Tribunal & Another v Kiilu Mathuva & 3 Others Ex-parte Kyengo Mathuva [2006] eKLR and Supreme Court holding in Gideon Sitelu Konchela v Julius Lekakeny ole Sunkuli & 2 Others [2018] eKLR.

11. Having struck out the application dated 27th February 2020 for being incurably defective, the only remedy that lies for the Applicant herein is to file a fresh application and comply with the provisions of the Civil Procedure Rules as well as the Oaths and Statutory Declarations Act. An incurably defective pleading cannot be reinstated.

Whether the Applicant has satisfied the grounds for review/setting aside of the ruling delivered on 25th February 2021 12. The ruling delivered on 25th February 2021 struck out the Amended Notice of Motion dated 27th February 2020 for being incurably defective as stated in the first issue above. Having made a negative finding in the first issue, it follows that the ruling striking out the Amended Notice of Motion dated 27th February 2020 cannot be set aside as it was based on the law and sound reasoning.

Whether this court should invoke its jurisdiction under Article 165 (6) & (7) of the Constitution of Kenya 2010 to call and hear Mombasa CMC Cr. No. 3867 of 2018 13. The Applicant relied on Article 165 (6) & (7) of the Constitution of Kenya 2010 to pray that this court recalls and hears County Criminal Case No. 3867 of 2018. Article 165 (6) & (7) provides:-(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.

14. The reason given by the Applicant for seeking this prayer is that the County Government is running a court and collecting revenue contrary to Article 160 and 161 (1) of the Constitution of Kenya 2010. Whereas the Applicant would want this court to believe that he was charged in Mombasa County Court Criminal Case No. 3867 of 2018, a perusal of the trial court’s file shows that it is Mombasa CMC Cr. Case No. 3867 of 2018 presided over by Hon. M. O. Rabera - Principal Magistrate assisted by court assistants who are employees of the Judiciary, and the prosecution is conducted by Ms. Karanja - an officer from the office of the Director of Public Prosecutions.

15. The breaches that occurred previously as admitted by the Respondent that offences under the County Government by-laws were being prosecuted by their own officers has since been corrected as admitted by the Applicant that those officers were degazetted by the Director of Public Prosecution in pursuance with Article 157 (6) - (12) of the Constitution. This court therefore finds that the Applicant was properly charged and his trial is being conducted before a competent judicial officer and there is therefore no reason to exercise the powers conferred under Articles 165 (6) and (7) of the Constitution.

Whether proceedings in Mombasa CMC Cr. No. 3867 of 2018 should be stayed 16. The Applicant’s trial has been pending in court since 6th of June 2018 and as pointed out in the Replying Affidavit of the Respondent, it appears he is not keen to have the trial concluded. In the ruling delivered on 25th February 2021, this court gave directions that since the Applicant had filed Constitutional Petition No. 195 of 2018 and that in rulings dated 9th May 2019 and 6th May 2020, the court declined to grant interim orders, he should prosecute the said petition which contained substantive issues which were also raised in the said application.

17. I have perused the Petition No. 195 of 2018 and I found that the Applicant had not taken any steps to prosecute the said petition so as to bring the issues herein to an end. It is true that the issue of the County Government of Mombasa collecting revenue in a court presided over by a Judicial Officer provided for under the Constitution is contrary to the current legal regime that requires all revenues collected by the court to be sent to the consolidated fund.

18. The issue of whether court fines and fees for cases filed by the county government should be shared was addressed by the former Chief Justice Dr. Willy Mutunga in his remarks at the Council of Governors Consultative Meeting delivered on 25th November 2016 where he remarked that such a move would involve considering its constitutionality and legality with national government as it touches on revenue collection by the court.

19. The action by the County Government of Mombasa to collect fees, fines and deposits arising out of quasi criminal cases should be moved into court by way of judicial review and/or constitutional petition for quashing for being ultra vires. The support by the County Government in terms of infrastructure to enable the judiciary meet its constitution and legal obligations to ensure access to justice does not and should not include collecting of revenue by the county government until and unless the various stakeholders in the criminal justice system hold a consultative meeting and agree on how to go about the issue and relevant laws amended and/or enacted to that effect. What was agreed upon in the consultative meeting was designation of separate registry and registers in Magistrates Courts specifically for cases that arise out of the county by-laws.

20. The issue raised by the Applicant does not affect him directly because the charge against him is properly founded under the by-laws, however, various correspondences have been exchanged between the County Government of Mombasa and the Judiciary concerning revenue collection arising out of offences and penalties under the by-laws, it is high time that the matter is resolved. As the Applicant presents himself before the trial court to have his matter concluded and as he also prosecutes the Constitutional Petition No. 195 of 2018, this court hereby orders that the Hon. Chief Registrar of the Judiciary and the County Government of Mombasa puts in place structures that will enable the Magistrate who is presiding over cases registered by the County Government to be handled in line with the constitution and relevant statutes within 3 months from the date hereof.

21. Mention of Criminal Case No. 3867 of 2018 on 17th February 2022 before the trial court. Orders accordingly.

DATED, SIGNED AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS, THIS 10TH DAY OF FEBRUARY 2022HON. LADY JUSTICE A. ONG’INJOJUDGEIN The Presence of:-Ogwel- Court AssistantApplicant Present In PersonMs. Kisingo For The Respondent – No Appearance. Ms. Kambaga Holding BriefMs. Kambaga For The 1st Interested PartyMr. Mkok For The 4th Interested Party – No Appearance. Ms. Kambaga Holding BriefORDER: A certified copy of the ruling to be supplied to the applicant upon paying copying charges. copy to be supplied to the respondent and interested parties 10. 2.2022