[2022] KEHC 16381 (KLR)

Kidero v Director of Public Prosecutions (Anti-Corruption and Economic Crimes Revision E009 of 2022) [2022] KEHC 16381 (KLR) (Anti-Corruption and Economic Crimes) (15 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16381 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Anti-Corruption and Economic Crimes

Anti-Corruption and Economic Crimes Revision E009 of 2022

EN Maina, J

December 15, 2022

Between

Evans Odhiambo Kidero

Applicant

and

Director of Public Prosecutions

Respondent

(ACEC 32 of 2018; Republic vs Evans Kidero & others ruling issued by Hon DN Ogoti on July 25, 2022)

Ruling

1. By a notice of motion application dated September 14, 2022, and supported by an affidavit sworn by Evans Odhiambo Kidero on even date, the applicant seeks of this court the following orders:“1. Spent2. That this honourable court be pleased to stay the proceedings in ACEC 32 of 2018; Republic vs Evans Kidero & others pending hearing and determination of this application.3. That this honourable court be pleased to call and examine the record of the proceedings in Milimani Anti-Corruption Case No 32 of 2018 for the purpose of satisfying itself as to the correctness, legality or propriety of the ruling issued by Hon DN Ogoti on July 25, 2022. 4.That the court be pleased to review, vary, reverse and/ or alter the ruling admitting MFIs 23 (a-d), 27, 28, 29(a), 30, 31, 32, 33, 34, 35, 36, 44, 46(a), 47, 54, 54(a and b), 61, 67(ii), 74, 73(a), 76, 76(a), 77, 78, 104, 105(i), 107, 108, 109, 109(i), 109 (ii), 110, 111, 113, 114, 115, 116, 120, 121 and 123 as evidence.5. That the honourable court be pleased to make any other orders that it deems fit in the interests of justice.

2. The application is made under articles 50, 165(6) and (7) of theConstitutionand section 362 and 364 of the Criminal Procedure Code and is premised on the following grounds stated on the face of it and in the supporting and supplementary affidavits:1. That on August 4, 2018, the Office of the Director of Prosecutions charged the 1st accused with conspiracy to commit an offence of corruption contrary to section 47 A (3) as read with section 48 of the Anti-Corruption and Economic Crimes Act of 2003, dealing suspect property contrary to section 47(1) as read with 47(2) and 48 of ACECA and dealing suspect property contrary to section 47(1) as read with sections 47 (2) a and 48 of the ACECA. He was later arraigned in court to answer to said charges.2. That subsequently, the 1st accused filed a notice to produce requesting the documents that the prosecution intended to rely on. The prosecution supplied the documents requested and issued an inventory of documents marked from B1 to B121. 3.That upon finalization of pre-trial procedures, the prosecution commenced its case and presented a total of 18 witnesses, and marked 124 documents for identification.4. That sometime in May 2022, the parties embarked on the strenuous journey of scrutiny of the marked documents to determine which would be produced as evidence and which would be objected to.5. That as a consequence, the Counsels for the 1st accused flagged a total of 37 documents whose production they objected to on various grounds including but not limited to the documents being uncertified copies, were not supplied and that the documents were materially different from those in the custody of the prosecution.6. That in a ruling dated July 25, 2022, the Honourable Justice Ogoti admitted MFIs MFls 23 (a-d), 27, 28, 29(a), 30, 31, 32, 33, 34, 35, 36, 44, 46(a), 47, 54, 54(a and b), 61, 67(1i), 74, 73(a), 76, 76(a), 77, 78, 104, 105(1), 107, 108, 109, 109(i), 109(ii), 110, 111, 113, 114, 115, 116, 120, 121 and 123. 7.That in admitting these documents as exhibits and therefore evidence, the honourable court failed to appreciate the express requirements of the Evidence Act as to one: production of certified copies, two: the process of determining the evidentiary value of documents before the same are admitted as evidence, three: the role of the court as an umpire in the justice system, four: the proper form and contents of search warrants, and five: the veracity of documents supplied to the defense being different from those in the prosecution's custody.8. That particularly, by admitting MFIs 115,116,120, and 121, the honourable court misdirected itself as to the process of admission of documents marked for identification into evidence.9. That particularly, the honourable court noted that MFI 115 and 116 that the defence was supplied with is dated August 25, 2014 while that of the prosecution was dated November 6, 2014, and further that they were computer print outs that were not accompanied by a certificate as prescribed in section 106 (4)(B), but still proceeded to admit the same as evidence.10. That having noted that the production of MFI 115 and 116 was irregular under section 106(4) (B), the court should have stopped at that and immediately allowed the objection against their production. Instead, the court held that there was a need to admit the documents as evidence to give the court an opportunity to observe and determine their evidentiary value in light of the discrepancies highlighted.11. That furthermore, while admitting MFI 120 and 121, the court noted that there were discrepancies between the copies provided by the prosecution and the originals, but ignored that the same were copies and uncertified.12. That the fact that MFI 120 and 121 were uncertified copies was enough to dismiss the same. The court erred in admitting the same simply on the basis that discrepancies had been pointed out and as such it needed to observe the same to determine their evidentiary value.13. That it is trite that before documents marked for identification are admitted, the court must be satisfied as to their probative value, not a step earlier or after. It is not for the court to admit the objected documents, then observe the same, compare with the parties' arguments and make a finding as to their evidentiary value at the conclusion of the case.14. That in admitting MFIs 115,116,120 and 121, simply on the rationale that the court must have an opportunity to apply its judicial mind to the evidence produced, the honourable court undermined the procedure laid down on admission of secondary evidence.15. That the assumption is that a marked document admitted as evidence is one whose evidentiary value has been ascertained by the court. Thus, any document whose evidentiary value is unknown cannot and should not be admitted as evidence.16. That if the court wanted to determine the same taking into account the parties' arguments, it ought to have sat, observed the documents and determined if the discrepancies were of such a character that would result in the admission or dismissal of the documents marked for identification before rendering its ruling.17. That the ruling dated July 25, 2022 infringes the 1st accused's right to fair hearing, as the court expects him to fold his hands and hope that the court shall determine what is of evidentiary value and what is not.18. That the tenets of fair hearing under article 50 of the Constitutionand the rule of law demand that there be certainty in proceedings that might have a drastic impact on an accused person's life.19. That therefore by allowing the documents, despite the glaring discrepancies, the Honourable court not only exposes the accused to uncertainties which will affect how he mounts his defence, but also prejudices him.20. That furthermore, the role of a court in the Kenyan judicial system is to act as an umpire and cannot be seen to be siding with any of the parties. By inviting itself to conduct other investigations on the documents objected to after admitting the same and rendering a ruling, the honourable court exposed itself to the risk of being perceived as siding with the prosecution.21. That the honourable court admitted a number of uncertified copies of documents on the basis that they were identified by the custodian and that they formed part of one transaction and could not therefore be severed.22. That particularly, the court admitted into evidence MFIs 44, 46(a) and 47, which were uncertified copies of cheques paid to Ngurumani Traders accompanied by letters from the Nairobi County Government, which were not objected to and had been identified by PW7. 23. That the court's rationale was that the uncertified copies of cheques formed part of the same transaction as the letters, hence could not be severed.24. That the court's argument is a fundamentally flawed and a complete disregard of the express provisions of section 66 of the Evidence Act which requires all copies of documents to be certified in the first instance.25. That furthermore, the court admitted MFIs 73 (a), 74, 76, 77 and 78, which were copies of uncertified cheques on the basis that they had been identified by PW11 who was the custodian of the same and that they were accompanied by internal vouchers effecting the payment of the cheques to Lodwar Wholesalers, whose production was not objected to.26. That to further reiterate section 66 (a) of the Evidence Act requires all copies of primary evidence to be certified for the same to be admitted in evidence if at all they have any evidentiary value.27. That the very fact that the cheques were copies meant that they ought to have been certified for the same to be relied on as evidence, regardless of the document that accompanied them. In the absence of certification, the same should be disregarded as evidence in the first instance.28. That furthermore, identification of the cheques by PW11 during the examination did not dispense with the express requirements of the Evidence Act as to the certification of documents.29. That in similar fashion, the honourable court admitted MFIs 109, 109(i), 109(ii) and 110, being an application in Misc Criminal Application No 38 of 2016 for the investigation of the 1st accused's Family Bank acc No 068-0000004475, the Supporting affidavit and warrant for investigation and the resulting bank statement, respectively.30. That honourable court disregarded the fact that MFIs 109, 109(i) and109 (ii) were uncertified copies on the basis that MFI 110, which was the bank statement that was the subject of the warrant, had not been objected to.31. That it is reiterated that it is mandatory for any copies that is to be adduced as secondary evidence are certified in the first instance before any other considerations come into play.32. That the court cannot sanitize an illegal process so as not to upset proceedings. The mere fact that the 1st accused did not challenge production of the bank statement does not negate the fact that the warrants that resulted in its release cannot be authenticated by the court and the only recourse is to do away with the warrant and the bank statement that flowed from it.33. That additionally, the honourable court erroneously admitted MFI 54 (b), a court order/warrant issued in Criminal Application No 1195 of 2015, allowing the prosecution access to Stephen Osiro's NIC account No 10000256249 which further allowed the prosecution to obtain the bank statements, and failed to take into account that the said warrant was undated.34. That the court instead focused on the fact that the warrant was part of MFI 54 and 54 (a), being the notice of motion and supporting affidavit, respectively, and therefore could not be severed.35. That warrants to investigate under section 102 of the Criminal Procedure Code must be confined to a specific person or thing, a specific time and place of execution, the officer that will execute the same, must be signed and most importantly must have the court seal and must be dated. Any warrant that does not meet these requirements is void ab initio, and anything obtained as a result of executing the same suffers the same tragic fate.36. That the doctrine of ex turpi causa non oritur actio states that that which is illegal cannot be made legal by the court or subsequent actions. The warrant used by PW18 to obtain the bank statements was undated, a factor that is mandatory for any order to be considered as valid.37. That it therefore follows that anything that flowed from the invalid warrant was obtained illegally and cannot be admitted as evidence. The mere fact that the 1st accused cross-examined on the same does not sanitize the illegality.38. That the 1st accused stands to suffer an injustice if this honourable court shies away from preventing the prejudice apparent in the ruling dated July 25, 2022. 39. That it is in the interest of justice and fairness that this application be allowed as prayed.

3. The respondent opposed the application through its grounds of opposition dated October 17, 2022, replying affidavit sworn by Jeniffer Kaniu, on October 18, 2022 and written submissions dated November 8, 2022.

The Respondent’s Case 4. The respondent opposed the application on the grounds that the same is res judicata and the issues raised are moot, that the petition is frivolous and therefore an abuse of legal process and it is in the interest of justice that the orders sought are declined.

5. In the replying affidavit the respondent avers that the petition arises from the proceedings before the Milimani Chief Magistrate's Anti-Corruption Court in Republic vs Evans Odhiambo Kidero & 10 others (Milimani Chief Magistrate's Court Anti-Corruption Case No 32 of 2018; that the anti-corruption case has proceeded and is at an advanced stage with the prosecution currently leading the evidence of its last witness being Mulki Umar [PW18], the Investigating Officer from the Ethics and Anti-Corruption Commission who was stood however down.

6. The respondent contends that during the course of the trial the prosecution through its witnesses marked a number of documents for identification from MFI1 to MFI 124, which evidence was duly disclosed by the prosecution; that the defence have however raised multiple objections to the identification and or production by the prosecution of a number of the said exhibits by way of interlocutory applications filed before this honorable court as follows: Republic vs Ethics and Anti-Corruption Commission & 2 others Ex parte Stephen Ogaga Osiro (Judicial Review 25 of 2019); [2020] eKLR Evans Odhiambo Kidero & 10 others vs Director of Public Prosecution[2020] eKLR (Nairobi ACEC Revision 43 of 2020) (consolidated with 39 of 2020 and 45 of 2020); Stephen Ogaga Osiro vs Attorney General & 2others(Nairobi ACEC Petition E004 of 2020); [2022] eKLR which applications have been dismissed and parties referred back to the trial court for hearing and determination of issues raised on identification and or production of exhibits.

7. The respondent avers that during the testimony of PW18, the defense counsel objected to the production of certain documents among them bank documents namely RTGS form, swift application form, cheques, application for warrants to investigate, and correspondences, which the trial court vide a ruling dated July 25, 2022, identified which evidence was admissible and that which was disallowed. As such, the applicant cannot purport to raise any further objection in respect of all the exhibits based on unsupported arguments, which were not made before the trial court; that the trial court had the advantage at all material times to examine the impugned documents and to observe the demeanor of the witnesses who testified on them before the admission thereof the applicant has not demonstrated what prejudice he has suffered or will suffer as a result of the trial court admitting the exhibits as evidence.

8. Lastly, the respondent contends that there are avenues provided in the trial court for the applicant to cross-examine the investigating officer on the documents; that the application lacks merit, is frivolous, vexatious and an abuse of the court process and the same should be dismissed.

Analysis and Determination 9. The applicant did not file submissions despite having been granted leave to do so by the court’s directions of November 9, 2022. Nonetheless, this court reckons that the Criminal Procedure Code at section 365 grants this court the discretion to determine revision applications without hearing the parties. The section provides thus:“365. Discretion of court as to hearing partiesNo party has a right to be heard either personally or by an advocate before the High Court when exercising its powers of revision:Provided that the court may, when exercising those powers, hear any party either personally or by an advocate, and nothing in this section shall affect section 364(2)”

10. This court shall therefore proceed to determine the application under the aforesaid section 365 of theCriminal Procedure Code on the basis of the documents filed by the parties.

11. Turning to the application for revision, section 362 provides for the jurisdiction of the High Court on revision as follows:“362. Power of High Court to call for recordsThe 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."

12. The trial magistrate (Hon D Ogoti CM) in his very detailed ruling dated July 25, 2022 upon determining the objections to the admissibility of the prosecution evidence listed by the applicant, made the following findings:1. The cheque identified as exhibit 44 was properly delivered to the bank by Evans Edaria (PW5) and payment duly effected.2. Exhibits 46 (a), 47, 73 (a), 74, 76, 76 (a), 77, 78 and 108 cannot be severed as they were attached to other documents which had already been produced as exhibits before the trial court.3. Exhibit 104 was correspondence between EACC and NCC authored by PW18 and was therefore properly identified before the trial court.4. Exhibits 54, 54 (a), 54 (b), 105, 109, 109 (1), 109 (ji) are court applications and orders granting EACC warrants to investigate various bank accounts which applications followed proper legal procedure as stipulated under the provisions of the law.5. Exhibit 110 is a bank statement lawfully obtained pursuant to the court order issued by the Chief Magistrates Court at Makadara.6. Exhibit 111 is a flow chart drawn by PW 18 demonstrating movement of monies from the Nairobi City County Government account to the accused persons during the investigations period to help the Court understand the evidence as presented.7. The objection to exhibits 113 and 114 was not clear to the trial court and was overruled and documents adopted as evidence.8. The discrepancies alleged to be on the face of exhibits 115, 116, 120, 121 and 123 can only be determined once the court has had an opportunity to observe the documents, appreciate the content and used its discretion to determine the admissibility of the evidence

13. I have reviewed the trial court’s ruling dated July 25, 2022. I am satisfied that in admitting the documents the trial magistrate applied the correct principles of the law. The applicant has not placed before this court anything that demonstrates that the decision of the trial court on the admission of the documents as exhibits was either incorrect or that it had manifest illegality or impropriety. The decision of the court was a proper exercise of its discretion, granted by statute, to admit evidence. The weight to be attached to evidence is a matter within the trail’s court’s jurisdiction to be exercised at the appropriate time. I find no reason to warrant this court to interfere with the decision of the trial court.

14. I find therefore that the present application is without merit, and I accordingly decline to exercise the revisionary powers of the court under section 362 of the Criminal Procedure Code.

SIGNED DATED, AND DELIVERED VIRTUALLY THIS 15TH DAY OF DECEMBER, 2022. E. N. MAINAJUDGE