[2022] KEHC 15356 (KLR)

Kattam v Republic (Criminal Revision E018 of 2021) [2022] KEHC 15356 (KLR) (16 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15356 (KLR)

Republic of Kenya

In the High Court at Eldoret

Criminal Revision E018 of 2021

RN Nyakundi, J

November 16, 2022

Between

Simon Kiprotich Kattam

Applicant

and

Republic

Respondent

Ruling

1. By this application the applicant trough Anassi Momanyi advocate sought orders of the court to recall the record referenced as CR NO. 2599 of 2015 registered at the Chief Magistrate’s Court Eldoret. The purpose of exercising this jurisdiction is provided for under section 362 of the criminal procedure code and article 165(6) and (7) of the constitution . The anchor of these provisions are 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 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.

2. The main contention by the applicant’s counsel is in respect to the order made by the learned trial magistrate on 22/3/2021 to the effect“that sometime back about 2 years ago the investigating officer PC Mbevu gave evidence half way and when he was to produce exhibits an objection was raised on his competency to tender the exhibits in evidence. The hearing of the matter did not proceed for one reason or another till 22/3/2021 when another police officer to whom the police file was handed (PC Kirui) came to court to testify. An objection was raised as the investigating office (PC Mbevu) had already testified half way and he was expected in court to conclude his testimony. The court overruled the objection and allowed the officer to proceed to testify from where the investigating officer had reached. It further treated the officer who was a fourth witness as the 3rd witness (the investigating officer). Half the testimony of the investigating officer (PC Mbevu) was treated as half the testimony of the officer who testified on 22/3/2021 (PC Kirui). It is the accused’s submission that the approach taken by the court is not tenable and is procedurally wrong”.

3. This is gist upon which the applicant seeks leave of the court to set aside or quash that interlocutory order by the learned trial magistrate. The feasible test is whether upholding the objection raised by the applicant it would result in culminating the proceedings or impact the entire prosecution proceedings to warrant it to be revised.

Decision 4. Under the constitution and the applicable statutes, the discretion conferred upon the trial courts is extensive. It is no concern of the revision court to restrict it artificially by limiting the obligatory role permissible within the independence decision making of those courts. This court will only interfere in two situations. The first is where the trial court has acted on grounds which the statute never intended to allow, like granting an irregular, illegal, improper or unjust order that is likely to occasion prejudice or injustice to the adverse party. The second is where the trial court is found to have acted from improper motives or improper irrelevant considerations or failed to take account of relevant considerations so that its action is ultra vires and void. In the case of R –v- St Pancras Vestry (1890) 24 QBD 371 at 375 the court held that “But they must fairly consider the application and not take account any reason for their decision which is not a legal one. If people who have to exercise a public duty by exercising their discretion take into account matters which the courts consider not to be proper for the exercise of their discretion, then in the eye of the law they have not exercised their discretion”. The supreme court of India provided another striking instance inherent on the application of revisionary jurisdiction by a superior court over tribunal or subordinate forums of adjudication. That is in the case of Sriraja Lakshmi Dyeing Works v Pangaswamy Chettair [1980] 4SCC 259 said as follows:The conference of revisional jurisdiction is generally for the purpose of keeping tribunal subordinate to the revising tribunal within the bounds of their authority to make them act according to law, according to the procedure established by law and according to well defined principles of justice. Revisional jurisdiction as ordinarily understood with reference to our statues is always included in appellate jurisdiction but not vice versa. The question of the extent of appellant or revisional jurisdiction has to be considered in each case with reference to the language employed by the statute. The domical ideal conveyed by the incorporation of the words to satisfy itself under section 25 read as which has similar provisions with our section 362 of the Criminal Procedure Code (Cap 75 of the Laws of Kenya) emphasis mine is essential a power of superintendence. The scope of the revisional powers of the high court where the high court is required to be satisfied that the decision is according to law as to the legality and propriety of the order under revision, which is quite obviously as much wider jurisdiction. That jurisdiction enables the court of revision, in appropriate cases, to examine the correctness of the findings of facts also, though the revisional court is not a second court of appeal (emphasis supplied).”

5. This is a case where the jurisdiction of the trial court is conferred under article 50(1) of the constitution. It was emphatically restated by the learned counsel objected to the shuffling of witnesses as between PC Mbevu and PC Kirui as to their competence and knowledge of the facts in issue as against the defendant. It is an established rule that if a trial court wrongly refuses to receive evidence or declines to admit some relevant evidence that alone cannot be reviewed by the high court. this error complained of did not go to the jurisdiction of determining the finality of the proceedings on the merits. Going somewhat further this was the case for the prosecution and the question of probative value of any witness ought to be impeached by the defence in cross-examination. Where it is later discovered that the evidence admitted by the trial court in the context of discharging the burden of proof the court has inherent power to quash the offence on the footing of that irrelevant evidence.

6. I don’t think the time is ripe for the court to prevent exercise of discretionary power insitu the ongoing proceedings. The court can interfere with the learned trial magistrate decision only if he or she has acted on no evidence or if he or she has come to a decision to which on the record he could not reasonably come to or if he or she has given a wrong interpretation to the words of the statute or if he or she has taken into consideration matters which he or she ought not to have taken into account or vice versa. See the quote in Ashbridge Investments Ltd –v- Minister of Housing and Local Government (1965) 1 WLR 1320 at 1326. Implicit of article 157(6)(9)(10) and (11) of the constitution is the base line that no restriction shall be placed on the exercise of these powers by any other person leave alone the defence in the case of prosecution to advance discharge of the burden of proof beyond reasonable doubt. If so, if there is an interference it must be within the prescribed law.

7. That conclusion leaves open the standard which a revision court should apply when determining whether the trial magistrate was entitled to leave his conclusion on the criterion of proportionality test. As for me I am satisfied that the conclusion was based on justifiable primary facts and assessments on the issue of admission or non-ad mission of the testimony of the two witnesses. I do not agree with the view taken by the learned counsel that their decision occasioned an illegality or impropriety worthy to be varied or reversed.

8. In conclusion, the references cited in the authorities and the complaint in the letter show clearly that there is no significant error of principle, law, policy which was infringed by the order of the court below. For all these reasons I reiterate strongly that in criminal cases the prosecution has the burden of proving to the criminal standards all the facts upon which it relies to establish to the same standard of beyond reasonable doubt. It may not be the business of the defence to cherry pick witnesses from a variety lined up in support of the prosecution case. the application for revision is denied.

DATED, SIGNED AND DELIVERED VIA EMAIL AT ELDORET THIS 16THDAY OF NOVEMBER, 2022. ............................R. NYAKUNDIJUDGE