[2022] KEHC 12599 (KLR)

Kaige v Republic (Criminal Revision E003 of 2021) [2022] KEHC 12599 (KLR) (14 July 2022) (Ruling)

Neutral citation: [2022] KEHC 12599 (KLR)

Republic of Kenya

In the High Court at Naivasha

Criminal Revision E003 of 2021

GWN Macharia, J

July 14, 2022

Between

Noah Kamau Kaige

Applicant

and

Republic

Respondent

Ruling

1. The Applicant, Noah Kamau Kaige is facing a sexual offence charge in Criminal Case No. E006 of 2021: Republic v Noah Kamau Kaige at the Senior Principal Magistrate’s Court at Engineer. The charges relate to alleged defilement of, and committing an indecent act with, a girl aged seventeen (17) years in the month of November 2020, at Kaiba village in Kinangop within Nyandarua County.

2. By a letter dated 25th March, 2021, the Applicant, through his advocates on record, Triple N W & Co. Advocates LLP, sought a revision of a ruling delivered in the said case by Hon. R. L. Musiega (RM) on 15th February, 2021. He also sought orders that: the proceedings of 15th February 2021 be set aside; the hearing of the case starts de novo; a declaration that the said proceedings amount to a mistrial; and, the learned trial magistrate do recuse himself and trial be conducted by a different trial magistrate.

3. The case for the Applicant is that he was charged in court on 18th January, 2021 and upon pleading not guilty, the learned magistrate admitted him to stringent bond terms of Kshs. 200. 000/- with a surety of similar amount but without the alternative of cash bail. The Applicant’s surety was also declined on flimsy medical grounds. He stayed in remand until 4th February, 2021 when he was released on cash bail of Kshs. 100,000/-. Since he had been in remand all along, his advocate sought an adjournment when the matter first came up for hearing on 15th February, 2021 so as to enable the advocate obtain full and clear instructions but the application was disallowed on the basis that counsel ought to have taken full instructions from the time of making the bail application. It was also contended that it has become apparent that the learned magistrate has glaring bias against the Applicant as he failed to record the submissions by counsel for the Appellant regarding the need for more time to seek further instructions.

4. As such, the trial proceeded without the participation of the Applicant’s counsel thus exposing the Applicant to substantial injustice in view of the seriousness of the offence. In addition, it was averred that the learned magistrate exhibited outright bias when he subsequently allowed an application for adjournment by the Prosecution when they sought to stand down a witness because they did not have original birth certificate.

Submissions 5. The application was canvassed by way of written submissions. Counsel for the Applicant reiterated the averments hereinabove and submitted that the failure by the trial magistrate to allow the adjournment was an affront to the Applicant’s constitutional right to a fair hearing under Article 50 of the Constitution. In this regard, he asserted that the Applicant’s right to have adequate time and facilities to prepare his defence as particularized under article 50(2) (c) of the Constitution was breached. Further, he submitted that the Applicant’s right to challenge the prosecution’s evidence was infringed when court denied him time to seek instructions from the accused to adequately cross-examine the victim. Additionally, counsel argued that the trial court unduly withheld the Applicant's right to be released on bond or bail on reasonable conditions thus portraying apparent bias against the Applicant.

6. Further, the Applicant urged the court to employ its discretion in finding that the proceedings amount to a mistrial. Reliance was placed on Republic v David Kahari Wanjiru [2019] eKLR where Wendoh, J. allowed an application for revision on the basis that the trial court declined to allow the prosecution to call witnesses and insisted on proceeding with a hearing on a day which was reserved for reading a ruling. The Applicant also relied on Republic v Paul Mutuku Magado [2019] eKLR, where the court highlighted factors to consider when allowing an application for an adjournment. Lastly, reliance was also placed on Joseph Nduvi Mbuvi v Republic [2019] eKLR for the proposition that the right of an accused should always take precedence during trial. In totality, counsel for the Applicant urged the court to order Hon. Musiega to recuse himself from the matter and the hearing do commence afresh before another magistrate so that the Applicant and the victim can have an equal footing in the trial.

7. On the other hand, the Respondent through learned State Counsel, Ms. Maingi submitted that the Applicant has been represented by counsel since he was first presented in court for plea taking. She submitted a hearing date was set down upon plea taking in the presence of counsel for the Applicant who was then immediately served with all the relevant prosecution documents. According to learned counsel, the contention by the Applicant’s counsel that he had no instructions from his client was only a delaying tactic. Further, Ms. Maingi contended that the submissions by counsel for the Applicant that he informed the trial court that his instructions were only limited to plea taking and bail application are an afterthought that were not brought up prior to instant application before this court. In addition, she asserted that the submission that the trial court is biased because a surety intended for the Applicant was declined is unfounded as the trial court recorded its reasons for not approving the surety and subsequently granted an alternative cash bail.

8. It was the learned State Counsel’s further submission that the Applicant’s request to have the complainant recalled for cross examination fell on deaf ears since the Applicant is intent on forum shopping. She stated that the Applicant has not shown how biased the trial magistrate is in this matter and did not even give the trial magistrate the opportunity to address the issue which only goes to prove that the issue is being raised in the High Court as an afterthought. She cited the case of Republic v Pauline Maisy Chesang & 4 others [2019] eKLR where Odunga, J. laid down the principles to be considered in recusal. Further, the learned counsel noted that it has been over year since the lower court case was heard yet it is a matter that involves a child whose best interests are of paramount importance.

Determination 9. Articles 165 (6) and (7) of the Constitution confers upon this Court supervisory jurisdiction over subordinate courts and empowers this Court to make any order and/or give any direction it considers appropriate to ensure fair administration of justice. The said Articles provide as follows:“(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 purpose of clause (6), the High Court may call for the record of any proceedings before any court or person, body of 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.”

10. Further, Section 362 of the Criminal Procedure Code provides as follows:“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.”

11. What the High Court can do under its revision jurisdiction is provided for under Section 364 of the Criminal Procedure Code as follows:“(1) in the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High court may –(a)in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by section 354, 357 and 358, and may enhance sentence: -(b)b) in the case of any other order than an order of acquittal, alter or reverse the order.”

12. The Applicant has accused the trial magistrate of bias against him and wants the case to be heard by a different court. Section 81 of the Criminal Procedure Code provides for transfer of criminal cases from one subordinate court to another where there is a reasonable apprehension of bias or partiality as against an accused person. The said provision stipulates as follows:(1)Whenever it is made to appear to the High Court-(a)That a fair and impartial trial cannot be had in any criminal court subordinate thereto; or(b)That some question of law of unusual difficulty is likely to arise; or(c)That a view of the place in or near which any offence has been committed may be required for the satisfactory trial of the offence; or(d)That an order under this section will tend to the general convenience of the parties or witnesses; or(e)That such an order is expedient for the ends of justice or is required by any provision of this Code, it may order-(i)That an offence be tried by a court not empowered under the preceding sections of this Part but in other respects competent to try the offence;(ii)That a particular criminal case or class of cases be transferred from a criminal court subordinate to its authority to another criminal court of equal or superior jurisdiction;(iii)That an accused person be committed for trial to itself.(2)The High Court may act on the report of the lower court, or on the application of party interested, or on its own initiative.(3)Every application for the exercise of the power conferred by this section shall be made by motion, which shall, except when the applicant is the Director of Public Prosecutions, be supported by affidavit.(4)An accused person making any such application shall give to the Director of Public Productions notice in writing of the application, together with a copy of the grounds on which it is made, and no order shall be made on the merits of the application unless twenty-four hours have elapsed between the giving of notice and the hearing of the application.(5)When an accused person makes any such application, the High Court may direct him to execute a bond, with or without sureties, conditioned that he will, if convicted, pay the costs of the prosecutor.”

13. Notably however, if such a transfer is granted, an accused person must make out a clear case that he has a reasonable apprehension in his mind that he will not have a fair and impartial trial before the magistrate from whom he wants the trial transferred. The alleged bias must be evident from the facts on the face of the record and not just perceived. See R v Hashimu (1968) EA 636.

14. I have carefully examined the trial court’s record. The record shows that Applicant was first presented in court on 18th January, 2021 for plea taking whereupon the hearing date of 15th February, 2021 was fixed in the presence of Mr. Kamau Advocate for the Applicant and the prosecution counsel. On the same day, counsel for the Applicant was duly supplied with the documents that the prosecution would be relying on in court and he confirmed receipt. Thereafter, the matter came up in court in 1st February, 2021 and counsel for the Applicant addressed the court on the need for lenient bond terms. The trial court reviewed the bond terms downwards from the Kshs. 300,000/ granted by Hon. Sure upon plea taking to Kshs. 200,000/ with one surety. The court then reiterated that the hearing would be on 15th February, 2021 and the Applicant’s advocate did not raise any objection.

15. On 3rd February, 2021, the Applicant’s proposed surety appeared before the trial court in the presence of Mr. Ndungu advocate for the Applicant and the state counsel. The trial magistrate duly indicated his reasons for rejecting the said surety as lack of capacity to ensure the Applicant’s attendance which reason was very valid, in my view. On 10th February, 2021, the matter came up once again for mention and Mr. Ndungu counsel for the Applicant duly addressed the court on the need for an alternative cash bail. The trial magistrate reiterated once again that the hearing would be on 15th February, 2021 but counsel did not request the court to reschedule the hearing date nor inform the court that he will have difficulties proceeding with the hearing on that day due to lack of proper instructions. When the matter came up for hearing on 15th February, 2021, Mr. Ndungu’s application for adjournment was declined and the trial magistrate duly noted his reasons for the same.

16. I note that Counsel for the Applicant faulted the trial magistrate for failing to consider the fact that he was unable to access his client due to none-admittance of the public to remand prisons to avoid spreading of corona virus. He also faulted the trial magistrate for failing to record his submissions in that regard. However, the court proceedings of 15th February, 2021 show that the trial magistrate clearly indicated that Mr. Ndungu did not tell the court whether he was denied access to his client in remand custody.

17. Further, counsel accused the learned magistrate of selective recording of his submissions in the said court yet the trial court’s proceedings at pages 13 to 15 thereof clearly show that the court recorded counsel’s reasons for refusing to cross examine PW1.

18. In view of the foregoing, I find that the trial magistrate was not bound to acquiesce to the counsel’s application for adjournment. Additionally, the allegation that the trial magistrate admitted the Applicant to stringent bail terms is unfounded. Needless to say, the imposition of bail terms is a matter of discretion of the court and for as long the discretion is exercised judiciously, an accused person cannot allege bias on the part of the court. Further, it is evident that the allegations of selective recording of proceedings are unfounded. In the premises, I find that there is no cogent evidence of reasonable apprehension of bias on the part of the trial magistrate in the trial court’ record to warrant his recusal from the matter and/or transfer of the case to a different court.

19. From the record, it appears that the learned trial magistrate was determined to expedite the hearing of the case presumably in view of the fact that it involved a child complainant. Whilst this is understandable, in criminal proceedings, a trial court must always endeavor to balance the need for expeditious disposal of the trial and the accused’s constitutional right to a fair trial. See Felix Mwova Vaasya v Republic [2016] eKLR. Article 50(2) (2) of the Constitution guarantees every accused person the right to adduce and challenge evidence. This means that an accused person must always be given an opportunity to cross examine prosecution witnesses unless he or she elects to give up the right. Counsel for the Applicant and the learned state counsel have both admitted in their respective submissions that the prosecution had already proposed to have PW1, who was the only witness whose evidence in chief had been fully taken so far, recalled for cross examination by the Applicant and/or his counsel. Since this avenue is available to the Applicant, I do not see why the trial should start de novo.

20. Accordingly, I find that the application for revision lacks merit and is hereby dismissed. The trial court file shall be remitted back to the magistrate who commenced the hearing to expeditiously proceed with the trial. However, I direct that the Applicant be given adequate opportunity to prepare for his defence. I also direct the trial court to recall PW1 for further cross examination by the Applicant. It is so ordered.

DATED AND DELIVERED AT NAIVASHA THIS 14TH DAY OF JULY, 2022. G.W.NGENYE-MACHARIAJUDGEIn the presence of:1. Mr. Ndung’u for the Applicant.2. Ms Maingi for the Respondent.HC CR. Revision No. E003 of 2021 Page 3 of 3