[2022] KEHC 16040 (KLR)

Kibandi v Republic (Miscellaneous Criminal Application E403 of 2021) [2022] KEHC 16040 (KLR) (Crim) (10 November 2022) (Ruling)

Neutral citation: [2022] KEHC 16040 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Miscellaneous Criminal Application E403 of 2021

JM Bwonwong'a, J

November 10, 2022

Between

Antony Watiku Kibandi

Applicant

and

Republic

Respondent

Ruling

1. The applicant filed an application dated November 9, 2021 pursuant to the provisions of articles 19, 20, 22 (1), 23 (1), 25 (c), 50 (2) (n), 159 (2) (a) & (e), 165 (3) (a) (b) (e) of the Constitution of Kenya and sections 362 and 364 of the Criminal Procedure Code (Cap 75) Laws of Kenya, seeking the following orders:i.Spentii.Spentiii.Spentiv.an order to issue barring the firm of M/S Obura Mbeche and company advocates from prosecuting the accused/applicant and their role be limited to being silent observers in the Chief Magistrate’s Court at Milimani in Criminal Case No 166 of 2019, Republic vs Antony Kibandi Watuku.In the alternative,v.An order to stop the firm of M/S Obura Mbeche and company advocates from unlawful private prosecution of the accused/applicant and/or from usurping the powers and role of the prosecution to unlawfully privately prosecute the accused/applicant in the Chief Magistrate’s Court at Milimani in Criminal Case No 166 of 2019, Republic vs Antony Kibandi Watiku.vi.the court do issue appropriate orders as the nature and circumstances of the case may dictate.

2. The application is premised on the grounds set out on the face of the notice of motion and supported by an affidavit dated November 9, 2021 sworn by the applicant. The major averments are as follows. The charges filed against him are accentuated by malice and clothed with ulterior motives. The firm of Messrs Obura Mbeche and company advocates, who are watching brief for the complainant in the criminal matter before the magistrate court has usurped the powers of the prosecution and are spearheading the malicious case. He maintains that the trial magistrate has given them all the latitude and the case has now turned to a private prosecution, which in the long term perpetuates an injustice.

3. He is therefore apprehensive that justice will not be served before the said magistrate. He contends that he is willing to stand trial before a neutral, fair and just magistrate who will act independently and in accordance with the law.

The Response Of The Respondent 4. In response to the application, the respondent filed grounds of opposition with the major grounds being the following. The applicant is not prejudiced by the court proceedings, since the trial court is yet to make a determination on his case, the applicant has not demonstrated that a fair and impartial trial cannot be had before the trial court, the applicant is engaging in forum shopping, the application offends the provisions of article 50 (9) of the Constitution of Kenya and section 9 of the Victim Protection Act 2014 and the application lacks merit, is a delaying tactic, a waste of the court’s time and should accordingly be dismissed.

The Applicant’s Written Submissions 5. Mr Orlando learned counsel for the applicant has submitted that the applicant is keen to have the matter heard and finally determined. However, the principles of fair hearing as enshrined under article 50 of the Constitution of Kenya must be adhered to. Counsel has urged the court to exercise its supervisory jurisdiction and grant the orders sought. He has also prayed that clear, unequivocal and constitutional charges be filed against the applicant. Further that the charges should not be applied retrospectively as is the case currently.

The Respondent’s Written Submissions 6. Ms Akunja, learned prosecution counsel submitted that the Constitution of Kenya 2010 and the Victim Protection Act 2014 gives victims of crime the right to directly participate in trial and be heard either in person or through their advocates. The extent of victim participation is determined by the trial court and is therefore a matter that should be decided on a case-to-case basis, depending on the peculiar circumstances of each case.

7. Further, the office of the Director of Public Prosecution has a mandate to independently control investigations and prosecutions in the interests of the public. Allowing victim participation does in no way prejudice the rights of the accused. Learned counsel has also submitted that the application lacks merit and is premature; since the matter is still pending before the trial court with no substantive orders made to warrant this application.

Issues for Determination 8. I have considered the application, the response and the submissions of the parties. As a result, I find that the issue that arises for determination is whether the applicant should be granted the orders sought.

Analysis and Determination 9. In his application, the applicant is seeking the limitation of the right of the victim to participate in the trial before the subordinate court. The applicant argues that the trial court has granted all the latitude to the advocates representing the victims and the case has now turned to a private prosecution, which in the long term perpetuates an injustice. He urges the court to bar the firm of advocates for the victims from prosecuting him and their role be limited to being silent observers. In contrast, the respondent has argued that the law gives victims of crime the right to directly participate in the trial either directly or through their advocates. Further, the extent of victim participation is determined by the trial court.

10. In Kenya the law on victim participation during the trial process is the Victim Protection Act, 2014. It was enacted by the Kenyan parliament in realization of the rights of victims under Article 50 (a) of the 2010 of the Constitution of Kenya, which authorized Parliament to enact legislation providing for the protection of rights and the welfare of victims of crimes. In that regard, section 4 (2) (b) of that provides that:“Every victim is as far as possible given an opportunity to be heard and to respond before any decisions affecting him or her is taken.”Furthermore, section 9 (2) of the Act provides that: -“(2)Where the personal interests of a victim have been affected courts shall: -a.permit the victims views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by court andb.Ensure that the victims view and concerns are presented in a manner which is noti.Prejudicial to the right of the accused orii.Inconsistent with a fair and impartial trial(3)The victim’s views and concerns referred to in subsection(2)May be presented by the legal representation acting on their behalf.”

11. The act gives the victims the right to have their views heard at any stage of the trial, where the court is making any decision that is likely to affect them. And it also gives them a right to receive information on the status of the case in which they are involved with the only limitation being that their participation does not affect the rights of the accused to a fair trial.

12. The supreme court (Maraga CJ & P, Ibrahim, Wanjala, Njoki & Lenaola, SCJJ) inJoseph Lendrix Waswa v Republic [2020] e-KLR laid down the parameters for victim participation and stated as follows:“Conscious that this is a novel area of law for our criminal justice system and recognizing our mandate, under Section 3 of the Supreme Court Act as the Court of final Judicial Authority, we are of the view that the following guiding principles will assist the trial Court when it is considering an application by a victim or his legal representative to participate in a trial and the manner and extent of the participation:a.The applicant must be a direct victim or such victim’s legal representative in the case being tried by the Court;b.The Court should examine each case according to its special nature to determine if participation is appropriate, at the stage participation is applied for;c.The trial Judge must be satisfied that granting the victim participatory rights shall not occasion an undue delay in the proceedings;d.The victim’s presentation should be strictly limited to “the views and concerns” of the victim in the matter granted participation;e.Victim participation must not be prejudicial to or inconsistent with the rights of the accused;f.The trial Judge may allow the victim or his legal representative to pose questions to a witness or expert who is giving evidence before the Court that have not been posed by the prosecutor;g.The Judge has control over the right to ask questions and should ensure that neither the victim nor the accused are not subjected to unsuitable treatment or questions that are irrelevant to the trial;h.The trial Court should ensure that the victim or the victim’s legal representative understands that prosecutorial duties remain solely with the DPP;i.While the victim’s views and concerns may be persuasive; and no doubt in the public interest that they are acknowledged, these views and concerns are not to be equated with the public interest;j.The Court may hold proceedings in camera where necessary to protect the privacy of the victim;k.While the Court has a duty to consider the victim’s views and concerns, the Court has no obligation to follow the victim's preference of punishment.”

13. The role of the victims’ advocate is not that a co-prosecutor. The court is alive to the fact that it is required to ensure that the said participation does not affect or prejudice the right of the accused to free and a fair trial. A victim is defined in section 2 of the Victims Protection Act 2014 as any natural person who suffers injury, loss or damage as a consequence of an offence. Indeed, the provisions of the Victim Protection Act and the pronouncements of the superior courts reinforce the nature of the victim's participation in trials as participatory.

14. In the instant application, the applicant has not placed any evidence be this court to convince this court that his right to a fair hearing and his rights as an accused have been infringed by the participation of the victims and/or their advocates.

15. In balancing the rights of the victims and those of the accused and taking into consideration the role of the public prosecutor, the applicant has not demonstrated that he has been denied the right to respond or cross-examine any witness or challenge evidence adduced. It is therefore clear that the objection by the applicant to the participation of the victims at the trial before the subordinate court has no legal basis as they have an interest in the outcome of his trial.

16. I find that the applicant is abusing the court process of the court; since the participation of the victim is authorized by the Victims Protection Act 2014 and has the seal of approval of the Supreme Court. Additionally, the applicant has failed to place any evidence to warrant the grant of an order of this court to bar the victims from participating in this case.

17. The upshot of the foregoing analysis is the application dated November 9, 2021 is dismissed for lacking in merit.

Ruling signed, dated and delivered in open court at Nairobi this 10th day of November 2022. J M BWONWONG’AJUDGEIn the presence of-Mr. Kinyua court assistantMr. Mumo holding brief for Mr. Olando for the applicantMr, Kiragu for the Republic/respondent.Ms. Chege for the for the victim/complainant.Mr. Otieno holding brief for Mr. Mbeche for the interested partyThe applicant in person.