[2017] KEHC 9564 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL DIVISION

CRIMINAL REVISION NUMBER 263 OF 2017

KIMURI HOUSING CO LTD……….………………….…1ST APPLICANT

MARGARET WAMBUI NGUGI…..…………..………….2ND APPLICANT

VERSUS

THE DIRECTOR OF PUBLIC PROSECUTION….......3RD RESPONDENT

AND

WILLY MUTIE………………………………...……..INTERESTED PARTY

RULING

Background

Both Applicants have come to this court by way of an Originating Notice of Motion dated 6th September, 2017. The main orders sought are:

a) That pending the hearing of this Application inter partes and on a date that shall be fixed by this Honourable Court, there be an order for stay of proceedings of Miliminai Criminal Case No.1590 of 2012 (Court 3, City Court).

b) That this Honourable Court be pleased to alter, set aside or reverse the Orders made by her Hon. S. N. Muchungi, RM made in Milimani Criminal Case No. 1590 of 2012 (Court 3, City Court) and issue a fresh order to the effect that Kimuri Housing Company Limited and Margaret Wambui Ngugi, the victims/Complainants in Milimani Criminal Case NO. 1590/2012 be allowed/permitted to add additional evidence in the aforestated criminal proceedings, by summoning attendance of the following persons for the purpose of giving evidence in court:-

i. Stanley Ongetti or any other person who is or was the Liquidator of Lukenya Ranching Company Limited’

ii. A representative of the Law Society of Kenya;

iii. Susan Kahoya, Advocate;

iv. PC Abdi Mohammed, former investigating officer;

v. Current investigating officer;

vi. Calling or recalling any other relevant witnesses who may, in the opinion of the Applicants, be necessary for the purpose of filling up gaps in the prosecution case.

c) That Kimuri Housing Company Limited & Margaret Wambui Ngugi, the Complainants herein, be accorded sufficient audience in Milimani Criminal Case No. 1590 of 2012 in accordance with the provisions of the Victims Protection Act No. 17 of 2014, which includes the right to make submissions in court.

d) That an order be issued that Milimani Criminal Case No. 1590 of 2012 do proceed before a Magistrate other than her Honourable S. N. Muchungi, RM.

e) That this Honourable Court be pleased to make further or other orders as may meet the ends of justice in this matter.

The Applicants have listed eleven grounds on which the application is premised but can be summarized as follows: that the Applicants are victims of a crime as defined under Section 2 of the Victim Protection Act No. 17 of 2014 (hereafter the Act) and are therefore entitled to the full protection under the Constitution and relevant laws. That this protection extends to allowing them to tender any additional evidence under Section 13 of the Act that would enable the court to arrive at a fair and objective decision. That the Applicants were not allowed to tender the intended additional evidence despite making several applications to do so. That in dismissing the Applicants request to participate in the criminal proceedings, being Milimani Criminal Case No. 1590 of 2012, the trial magistrate relied on the Witness Protection Act as opposed to the Victim Protection Act. That consequently, the trial magistrate ruled that the additional evidence that the Applicants intended to adduce was of no evidentiary value thus being biased against the Applicants. That for this reasons, the court was urged to make an order to transfer the trial to another magistrate with competent jurisdiction. That the evidence the Applicants intend to adduce has a bearing not only on the strength of the trial case but on a pending civil matter being Machakos ELC No. 134 of 2011. Finally, that the Applicants’ intention in calling additional evidence is to close the gaps in the prosecution case.

The application is supported by the affidavit of Margaret Wambui Ngugi, the 2nd Applicant sworn on 6th September, 2017. The gist of the affidavit is that the learned trial magistrate failed to appreciate the fact that the Applicants as victims in the trial had a right to call additional evidence during the trial. The deponent reiterated the grounds on which the application is premised. She added that the right of a victim to call the additional evidence is unfettered especially where the evidence would be of help to the court. She emphasized that in the instant case, the prosecution deliberately or inadvertently left out evidence that was crucial to the case. This was specifically the failure to call witnesses that were crucial to the case. She listed the said witnesses as:

1. The liquidator of Lukenya Ranching Farmers Cooperative Society Limited.

2. Susan Kahoya, an advocate who drew the original agreement for sale.

3. A representative or chair of the Law Society of Kenya to verify documents.

4. Surveyors and Land registrars and other relevant witnesses.

It was further deposed that as victims of suspected criminal activity, the Applicants were entitled to the full protection of the law. In this regard, it is deposed that the magistrate’s court seemed not to understand the provisions of the Act. In any case, the trial had not closed as the same is pending a ruling under Section 211 of the Criminal Procedure Code. Therefore, no prejudice would be occasioned to the accused person by this court exercising its powers to reopen the prosecution case and directing that the Applicants call additional evidence. Finally, that it was in the interest of justice that the orders sought be granted.

Both the Interested Party (accused) and the Respondent (DPP) opposed the application. They each filed grounds of opposition dated 25th and 27th of September, 2017 respectively. Those of the Interested Party were filed by M/s S. Ogeto Ongori & Co. Advocates and for the DPP by Maureen Akunja, a Prosecution Counsel.

I duplicate the Interested Party’s Grounds of Opposition as follows:

1. Criminal Case No. 1590 of 2012 is a matter for the state prosecution and not a private prosecution and that the Director of Public prosecutions (DPP) has been in charge since inception.

2. The Applicant has therefore no locus standiunder the law to file such an application.

3. The private prosecution has its own prescribed process under the law where leave must be sought to privately prosecute and that no such leave was sought.

4. That even if leave were to be sought which in any case has not been sought, it would not be at this stage.

5. The complainant has been referred to as a victim under the Victim’s Act (should read Victim Protection Act) in the application but this act does not apply as the magistrate made a ruling which has not been appealed against.

6. The prosecution closed its case after all witnesses who recorded statements testified including PW1 i.e (the complainant) and submissions were ordered properly for the accused who has been coming to court since 2012.

7. This application is against the principles of natural justice and that it is merely intended to delay justice from being done and the same ought to be dismissed with costs to the Interested Party.

Whilst the DPP enunciated the following Grounds of Opposition:

1. This application goes against the provisions of Article 157(10) of the Constitution which mandates the DPP to institute and undertake prosecution of criminal offences.

2. This application goes against the provisions of Article 50(2)(e) of the Constitution that requires trials to begin and conclude without unreasonable delay.

3. This application further goes against the provisions of the Constitution at Article 50(2) (c) that requires that the accused be given sufficient time and facilities to prepare a defence.

4. This application further goes against the provisions of the Constitution at Article 50(2) (j) that requires that the accused be informed of the evidence the prosecution intends to rely on and have reasonable access to that evidence.

5. The Applicant is not prejudiced in any way as he can raise the grounds he is raising now during an appeal in case the accused is eventually acquitted.

6. The respondent has the power to decide the type of evidence to prove its case and therefore the applicant cannot compel the Respondent to produce in court a particular number of witnesses or exhibits.

7. The application is misconceived and unsubstantiated and should thus be dismissed.

SUBMISSIONS

Applicant’s Submissions

The application was canvassed by way of oral submissions on 29th September, 2017. Learned Counsel for the Applicants, Mr. Mbabu submitted that the major complaint by the Applicants was the failure by the trial court to accord them audience. Specifically disallowing their three applications that sought leave of the court to allow them adduce additional evidence in criminal case No. 1590 of 2012 and in particular the proceeding of 30th August, 2017. He submitted that the genesis of the Victim Protection Act wasArticle 50(9) of the Constitution which directs Parliament to enact a law that shall protect victims in a case; the effective date of the Act being 3rd October, 2014.

Counsel acknowledged that the first application to allow the Applicants audience was first made on 1st July, 2014 which was before the commencement of the Act. But that the second application was made on 11th February, 2016 when the Act was in force. He submitted that, in making its ruling on the application, the trial court erroneously referred to its ruling of 1st July, 2014. Ultimately therefore, it failed to appreciate that as at the date of the application, the Act was effective and so should have allowed the Applicants to adduce the additional evidence they had. Equally, on 30th August, 2017 when the 3rd application was made, the trial court still referred to the ruling of 1/7/2014, once again failing to appreciate the effective date of the Act.

Counsel urged the court to refer to Section 13 of the Act which defines who a victim is and his role and therefore find that this application is not made in vain. He emphasized that the 2nd Applicant being a complainant in the trial had a right under Section 13 to adduce evidence that was left out by the prosecution. He named the witnesses who the Applicants intended to call namely, a M/s Susan Kahoya advocate who executed the sale agreement of the land that is at the center of the criminal trial. The justification for her evidence was that the court had ruled that the sale agreement could only be produced by its maker. It was submitted that Susan Kahoya had executed the agreement and was thus the competent person to adduce it. In addition, the prosecution had failed to call her as their witness. Counsel cited other witnesses as Mr. Gakuru a co- director of the accused, Mr. Ongetti who was a liquidator, Mr. Abdi Mohamed a former investigating officer and a representative of the Law Society of Kenya (LSK).

According to Mr. Mbabu, the court declined to allow the additional evidence because in its view, the witnesses were irrelevant and the case would delay. But according to the counsel, the trial had proceeded consistently and had been delayed by the recalling of witnesses especially PW1 by the defence. He submitted that PW1 had testified thrice at the instance of the defence. Court was urged to find that pursuant to Article 157 of the Constitution, the calling of the additional evidence would promote the administration of justice. Court was also urged to give effect to Section 13 of the Act by finding that the additional evidence sought to be adduce was not parallel to that adduced by the prosecution but was intended to give additional value to the prosecution case.

On the transfer of the case to a different magistrate, Mr. Mbabu submitted that the request was not made on personal ground but informed on the magistrate’s finding on 30/8/2017 that the additional evidence was irrelevant. That therefore, if this court allowed the application, it would be futile to present evidence before the magistrate who had already pronounced it as irrelevant. Besides, no prejudice would be occasioned to the Respondent and the Interested Party as the current magistrate had only heard the matter for a short time, being this year only. In that case, no judicial time would be wasted.

Mr.Mbabu further submitted that the trial magistrate may have arrived at the erroneous ruling of 30/8/2017 because in delivering herself, he referred to the Witness Protection Act whereas the Applicant’s counsel had made the application under the Victim Protection Act. According to the counsel, the trial court’s failure to appreciate the provisions of Section 13 of the Act reduced the Applicants and their counsel to mere spectators.

Finally, counsel referred the court to a bundle of authorities filed on 28th September, 2017 namely;

a) Richard Ouma Arondo v R [2017[ eKLR

b) R v Titus Ngamau Musila Katitu [2016] eKLR

c) R v Joseph Lentrix Waswa [2016] eKLR

d) Gladys Kiaji v R & Nor [2017] eKLR

I shall revert to them later on in this judgment.

Interested Party’s Submissions

Mr. Ogeto for the Interested Party submitted that the Applicants had no locus standi to bring the application as they do not fall under the definition of a victim under Section 4(2)(c) and (5) of the Act. According to the counsel, a victim is defined as a natural person whereas the complainant in the charge sheet at the trial is a Limited Liability Company and not a natural person. Further, that under Section (4)(2) (b) the victim must be heard and be accorded an opportunity to respond before a decision is made. In this case, counsel submitted that the named victim, Margaret Wambui Kimuri was heard, recalled for further evidence and therefore given an opportunity to adduce all the evidence she had.

Counsel submitted that the Applicants had not laid any basis on which the witnesses they have named should be called. He cited Abdi Mohamed, an investigating officer who had already testified. As for Michael Gakuru, he failed to testify after he was severally bonded and witness summons issuing to him. As for the Law Society’s representative, his/her role in the case had not been articulated. The said Susan Kahoya advocate was never an intended prosecution witness. Furthermore, the trial court had rightfully rejected to admit a photocopy of a document unless it was adduced by its maker.

Mr. Ogeto submitted that the application was made too late in the day with the sole intention of derailing the trial. He urged this court to uphold the rulings made by the trial court and especially that of 30/08/2017. He insisted that a counsel watching brief for a complainant had no locus standi to file this application without the leave of the court.

On the authorities submitted by the Applicants’ counsel, Mr. Ogeto argued that they were irrelevant to the instant case as they related to the interests of an accused person as opposed to the victim.

Respondent’s submissions

Learned State Counsel M/s Akuja for the Respondent submitted that under Article 157(10) of the Constitution the DPP has the mandate to conduct prosecution on any person without the directions or control of any person. Further, under sub-Article (11) the DPP in conducting prosecution must have regard to the administration of justice and prevent the abuse of the court process. In this regard, it was submitted, the interest of both the accused and the victim must be balanced.

As for the witnesses, the Applicants intended to call, they were witnesses whose attendance the prosecution had taken sufficient steps to ensure in vain, for example, Susan Kahoya advocate had indicated that she did not have an original copy of the agreement and the agreement having been executed in the year 1997, it was difficult for her to confirm if she had executed it. Therefore, even if the witness was traced, without the original document, her testimony would not meet the purpose for which it was intended. As for the LSK representative, being a new witness to the case, his testimony would offend the accused’s right to be furnished with the evidence that would be adduced in a trial. Besides, the role and purpose of the witness had not been spelt out.

On the role of a victim, M/s Akunja submitted that the complainants always had an advocate watching brief for them whose role was to liaise and consult with the prosecution. The prosecution had to prematurely close their case after all efforts to avail the witnesses they had listed failed. This notwithstanding, they had called sufficient number of witnesses in support of their case. On the transfer of the case before another magistrate, M/s Akunja submitted that no justification for the request had been laid.

Determination

I have considered the application and the respective rival submissions made before me. The major contestation in this application is, as submitted by the Applicants, the failure by the trial court to accord them an opportunity to adduce additional evidence to what the prosecution had already adduced. The application is brought pursuant to Section 13 of the Victim Protection Act. But before I delve into the provision and its applicability it is worthwhile to note that pursuant to Section 362 of the Criminal Procedure code this court has powers to“call for and examine the record of any criminal proceedings before a subordinate court for purposes 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.” It then behooves this court to satisfy itself as the correctness, legality or propriety of the orders of the trial court issued in three instances declining the request by the Applicants to adduce additional evidence.

Section 13 of the Act provides as under:

“Where a victim is a complainant in a criminal case, the victim shall, either in person or thorough an advocate be entitled to-

a) Subject to the provisions of the Evidence Act, adduce evidence that has been left out

b) give oral evidence or written submissions.

Before I proceed, it is important to address the issue of whether the Applicants qualify to be victims under the Act. This is in light of Mr. Ogeto’s submission that the 1st Applicant, being a Limited liability company, does not meet the threshold of the definition of a victim under the Act. More specifically, that a victim must be a natural person.

A victim is defined under Section 2 as:

“… any natural person who suffers injury, loss or damage as a consequence of an offence”

To the extent of this restrictive definition, I concur with Mr. Ogeto that a limited liability company is not, per se, a natural person. However, the Applicants herein are two, Kimuri Housing and Co. Ltd and Margaret Wambui Kimuri. The 2nd Applicant has been described as one of the directors of the 1st Applicant and she swore the Supporting Affidavit to the instant application in that respect; an assertion that is not disputed. She also testified in the trial in this capacity. She is a natural person for all intent and purposes under Section 2.

That said though, it is trite that a Limited liability company is a legal person capable of suing and being sued. That explains why Kimuri Housing and Co. Ltd is named as the complainant in the charge sheet. For purposes of evidence at the trial, the 2nd Applicant in her capacity as its director testified. In view therefore, it is clear that the definition accorded to who a victim is under the Act is narrow and restrictive. It should be broadened so as to comprise a legal person. It seems that the Act failed to envisage situations where legal persons can sue and be sued in criminal proceedings, yet this is a common phenomenon. Thus, by providing that a victim is also a legal person shall avoid ambiguity inherent in the definition and shut out unnecessary arguments as in the instant case. Be that as it may, the 2nd Applicant in her capacity as a director of the 1st Applicant is one and the same thing as the complainant for purposes of Section 13 of the Act. She definitely has the locus standi to file the instant application. The submission by Mr. Ogeto is therefore without merit.

On the application of Section 13 of the Act, the same is clear on the scope of participation of a complainant which is:

“(a) Subject to the provisions of the Evidence Act, adduce evidence that has been left out,

(b) Give oral evidence or written submission”

According to the Respondent, if the Applicants were allowed to adduce the intended evidence, they would be adducing parallel evidence to that that the prosecution adduced. In addition, since the witnesses they intended to call were prosecution witnesses, their intention would contravene Article 157(10) of the Constitutionwhich confers the DPP with powers to conduct prosecution without the direction or control of any person or authority. On the part of the Interested Party (accused) the application is unmerited because PW1, as a director of the complainant was accorded ample time to adduce evidence.

In my candid view, neither the Respondent’s nor the Interested Party’s argument conform to Section 13 of the Act. The provision is in very clear terms that the additional evidence comprises evidence that has been left out.Therefore, if the Act intended that the evidence which the prosecution can adduce or has adduced should not be adduced by a victim, nothing was easier than to provide for that. In my mind, this provision was inserted with one major purpose, to cure the mischief of instances where the prosecution deliberately or by oversight omits to adduce very crucial evidence. Effectively, where a victim lays a solid justifiable basis why they should adduce evidence that the prosecution left out, the court should not hesitate to give effect to Section 13. For avoidance of doubt, it is also my view that a victim can also apply to recall a prosecution witness if it is established that that witness failed to adduce crucial evidence. Therefore, although the 2nd Applicant was given ample time to testify, the additional evidence envisaged under Section 13 is not evidence that has already been adduced. It is any further evidence. And therefore it is misplaced to argue that the calling of witnesses who the prosecution failed to secure would amount to parallel prosecution. Instead, it would serve the purpose of filling the void left out by the prosecution, hence the words “evidence that has been left out”.

Flowing from the above, I do not also find that the application is intended to interfere with the authority of the DPP who has prosecuted the Interested Party without the interference of the Applicants. Had such an application been intended to usurp this authorityArticle 157(10), sub-article (11) would not have been written. The same reads:

“In exercising the powers conferred by this Article, the Director of Public Prosecutions shall have regard to the public interest, the interest of the administrative of justice and the need to prevent and avoid abuse of the legal process”

I am very clear in my mind that the mandate of the DPP as provided under Article 157 should not be lightly interfered with. But he must exercise that mandate within the confine of the Constitution and other written law. Where it is established that he has exercised his mandate in a manner that brings into disrepute the dignity of the administration of justice, courts will not hesitate to intervene. Thus, section 13 was definitely intended to cure instances where the DPP may exceed his mandate, prosecute with ulterior and collateral purposes or as in the instant case, deliberately or inadvertently leaves out crucial evidence in prosecutions. It cannot be understated that failure to call crucial evidence in a criminal case is not in the interest of administration of justice. It is also an indicator of an intent to abuse the legal process. This is explained very simply. It is of no purpose to institute legal proceedings, waste precious judicial time in the trial knowing to well that crucial evidence will not be availed as the net result of such a trial would inevitably be an acquittal. I must clarify by stating that a trial must not necessarily result in a conviction. But where evidence is deliberately not called so as to mangle the trial, the effect of this would amount to an abuse of court process.

It is gainsaid then that Article 50(9) of the Constitution is the mother of the Victim Protection Act. Courts must therefore give effect to each and every provision of the Act in so far as it meets the letter and spirit of Article 50 of the Constitution. Article 50 provides for rights to a fair hearing some of which are restated under Section 9(1) of the Act as the rights of a victim. They are:

“(1) A victim has a right to-

a) Be present at their trial either in person or through a representative of their choice;

b) Have the trial begin and conclude without unreasonable delay;

c) Give their views in any plea bargaining

d) Have any dispute that can be resolved by the application of law decided in a fair hearing before a competent authority or, where appropriate, another independent and impartial tribunal or body established by law;

e) Be informed in advance of the evidence the prosecution and defence intends to rely on, and to have reasonable access to that evidence;

f) Have the assistance of an interpreter provided by the State where the victim cannot understand the language used at the trial; and

g) Be informed of the charge which the offender is facing in sufficient details.

The test of adherence to Section 9(1)is set out atSection 9(2)as:

“(2) Where the personal interests of a victim have been affected, the Court shall-

a) Permit the victim’s views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court; and

b) Ensure that the victim’s views and concerns are presented in a manner which is not-

i. Prejudicial to the rights of the accused; or

ii. Inconsistent with a fair and impartial trial

My understanding of Section 13 drives me to conclude that in its application, the letter and spirit of Section 9(2)(b) must be upheld. That is to say that Section 13 cannot operate in isolation from the provisions of Section 9(2)(b). Having made the above observations, I rule and hold that the instant application is not made in vain. It is warranted especially so as to give efficacy to Section 13. A victim has a right to adduce evidence which even though it was lined up by the prosecution, was left out. The rider to this though is that a basis for adducing such evidence must be properly laid, there must be good justification, otherwise, a floodgate of unnecessary applications would flow intended to strangle the ends of justice. In an nutshell, an Applicant must satisfy the test set out under Section 9(2)(b). I then delve into the question; has the Applicant met this test?

That determination can only be arrived at by dissecting the three rulings made pursuant to the applications in the trial court. The first ruling was made by the then learned trial magistrate Hon. Karumbu, RM on 1st July, 2014. The issue then was an objection by the defence counsel to an application to allow counsel watching brief for the complainant to address the court. The court made a good ruling on the role of a complainant in a criminal prosecution under the then applicable law. As at 1st July, 2014, the Victim Protection Act had not come to effect so the respective submission by Applicant is rendered moot.

On the second occasion, 11th February, 2016, the issue in court was about the complainant changing advocates who were watching brief for her. Mr. Ogeto wanted her to settle on one advocate so as to avoid confusion. The court correctly ruled that an advocate on record could send another advocate to hold brief for him or her and that there was nothing wrong with Ms. Wangui who was in attendance holding brief for Mr. Njiru for the complainant. I find no irregularity or incorrectness with the ruling. Further, no request was made by the complainant to adduce additional evidence pursuant to Section 13 of the Act, on the date in question.

On 30th August 2017, counsel watching brief for the complainant, Mr. Mbabu made the application to call the four aforestated witnesses after the prosecution spiritedly put forth a case for a last adjournment. Incidentally, the prosecutor had come to court without a police file. The prosecution had intended to call only three witnesses namely, the investigating officer to produce some original documents, Mr. Michael Gakuru, a co-director of the accused and Mr. Ongetti, a liquidator. Mr. Mbabu made the application before the court made a ruling on whether the case would be adjourned. In addition, he wanted the LSK Chairman to testify. He cited Section 13 of the Victim Protection Act which as he submitted was erroneously recorded as the Witness Protection Act (WPA).

In the learned magistrate’s view, the role of the counsel watching brief for a complainant was restricted to liaising with the prosecution so as to ensure that the interests of the complainant are taken into account. Whilst referring to Section 13 of the ‘Witness Protection Act’, the magistrate noted that it had no relevance to calling of additional evidence by the complainant. On the latter point, it is factual that the magistrate erroneous referred to and recorded the wrong statute. As such, the court was bound to make the wrong finding, anyway. Further, with the enactment of the Victim Protection Act, the role and scope of participation of a complainant and his counsel has been expanded to not just merely watching brief but also to calling additional evidence other than that adduced by the prosecution and to fully articulate his/her (victim) interests orally and/or by submission (Section 13). Consequently, counsel watching brief for a complainant is no longer a mere spectator, an idler in court, and can now participate in the trial to ventilate the interests of the complainant in restricted instances as the court may direct.

With this in mind, what is left for this court to determine whether a good basis was laid for the calling of the additional evidence by the complainant. As for the LSK Chairman or his representative and Mr. Michael Gakuru, a co-director of the accused, Mr. Mbabu did not indicate what evidence they shall offer or its relevance to the case. The request is thus not merited.

As for other witnesses, the record of proceedings clearly shows that the complainant has had an advocate watching brief for her throughout the trial. On 26/4/2017, the prosecution gave an undertaking to the court that if it did not avail the balance of documents and witnesses on the next hearing date, they would close their case. The court accordingly granted them a last chance to avail the needed documents. As at this date, the complainant knew that the case for the prosecution would soon close. This was the last time she should have taken advantage of the ability to call additional evidence. Nevertheless, on the next hearing date, 25/08/2017, the prosecution again applied for adjournment and the request was granted. Still, the complainant’s advocate did not seize the opportunity to call the additional evidence.

Earlier on 8/3/2017, the prosecutor informed the court that he had his last witness but the case did not proceed as the investigating officer, who was recalled, did not have all original documents in court. The case was stood over to 26/4/2017 but on this date, the investigating officer was absent. The court again gave a last adjournment to the prosecution and a hearing date set for 23/6/2017. Once again, counsel for the complainant did not ask to call additional evidence. Similar scenarios were replicated on 12/7/2017 and 27/8/2017.

The issue of calling the additional evidence only arose on 30/8/2017 when it was evident that the prosecution would close its case. I point out that the interest of the administration of justice does not accord only to one side. It must be balanced for all parties, the prosecution, the witnesses and the complainant. The trial commenced in the year 2012. It has taken the complainants close to three years since the commencement of the Act to make this application. Whereas they intend to fill the void left by the prosecution case, I have taken the liberty to demonstrate that since 26/4/2017 they had notice that the prosecution case would close soon. In my view, the application to call additional evidence at the eleventh hour can only be construed as aimed at derailing the trial. I honestly empathize with the complainants but as the adage goes, justice must come to an end. All is not lost though. They can now better ventilate their case in the pending civil matter. But in this case, any further delay in the trial would heavily prejudice the accused who has constantly come to court for five years.

Although only the role of Susan Kahoya was well articulated, in the interest of justice, this trial must come to a close. As for the liquidator Mr. Ongetti, the prosecution already stated that his evidence was not relevant to the case. The additional evidence must be subject to the provisions of the Evidence Act. And so an irrelevant witness would only waste the court’s precious time. As for Abdi Mohamed, the investigating Officer, he had testified three times and therefore had no fresh evidence to offer. And his failure to avail original documents should not be meted with punishing the accused by further delaying the trial. In sum, I decline to accede to the request to call additional evidence.

Finally, I think I will not do justice to this ruling if I do not comment on the authorities presented by counsel for the complainants. The case of Rochard Ouma Arondo v R [2017] eKLR addressed itself to the role of an advocate watching brief for the complainant in criminal proceeds. In R v Titus Ngamau Musila Katitu [2016] eKLR, Wakiaga J referred to a ruling of Abida Ali, J in R v Joseph Lentix Waswa in spelling out the rights and interests of victims under the Victim Protection Act. The latter case however, can be distinguished from the instant one. In Joseph Lentix, a Mr. Murunga, counsel watching brief for the complainant made an application to be allowed to actively participate in the criminal proceedings. The accused was charged with murder. In her ruling, Abida Ali, J held that the participation of the counsel was limited to instances where the court’s determination is on issues affecting the victim directly such as bond application, plea bargaining and sentencing similar observation was made by Court of Appeal in IP Veronica Gitahi & Another v R [2016] eKLR which Joseph Lentix case cited.

The present case on the other hand relates to the application of Section 13 of the Act which must be distinguished from the role of a counsel watching brief for the victim. This is illuminated by the fact that the Act specifically sets out as one of its objects, under Section 3(b)(v), the prevention of re-victimization in the justice process. In line with this object, the Act grants every victim the opportunity to be heard and to respond, as far as possible, to decisions that affect them. As noted earlier, the manner of responding is outlined in Section 9(1), 9(2) and 13 of the Act.On the other hand counsel watching brief for the complainant would be guided by Section 9(2)(a). The cited case law has spelt out the situations where this would apply, but which in my view are not cast in stone. Each situation must be considered on a case to case basis and the good wisdom of a court shall guide this. But under Section 13, additional evidence can be called orally or by submissions, which grants an actual and active role to a victim in the proceedings. Therefore, the calling of witnesses is well cushioned, subject to justification. The evidence must also not be prejudicial to the accused’s rights or be inconsistent with the principles governing a fair and impartial trial. See S. 9(2)(b).

The Gladys Kanji case (Supra) a decision of this court, addressed itself to what extent an advocate watching brief for the complainant can move a court. In reference to Section 9(1)(d), 9(2) and (3) of the Act, the court held that the advocate could move a court in situations where the personal interest of a victim have been affected. In that case, the complainant had protested the closure of the prosecution case before two crucial witnesses had testified. The court delivered itself that that the application was properly before the court. Being convinced it was merited, it ordered the re-opening of the prosecution case. The merit lay with the fact that the court closed the case without notice to the prosecution and at a time when the hearing was within the days allocated by the court. In the present case, the prosecution was availed several last adjournments but completed their case. It follows that a reopening of the prosecution case would infringe on the accused’s right to a speedy and fair trial, thus contravene Section 9(2) (b) of the Act.

I will accordingly disallow the application. The same is dismissed with no orders as to the costs. I thank the respective counsel for their submissions, more so Mr. Mbabu. His illuminating submissions gave the court thoughtful insights that have enabled me to re-look Section 13 of the Act.

Dated and Delivered at Nairobi this 2nd October, 2017.

G.W. NGENYE-MACHARIA

JUDGE

In the presence of;

1. Mr. Mbabu & M/s Gasansule for the Applicants

2. Mr. Ogeto for the Interested Party

3. M/s Akunja for the Respondent