[2022] KEHC 11733 (KLR)

Kioko v Republic (Miscellaneous Application E037 of 2020) [2022] KEHC 11733 (KLR) (12 May 2022) (Ruling)

Neutral citation: [2022] KEHC 11733 (KLR)

Republic of Kenya

In the High Court at Machakos

Miscellaneous Application E037 of 2020

MW Muigai, J

May 12, 2022

Between

George Mutuku Kioko

Applicant

and

Republic

Respondent

Ruling

1. The applicant was charged with 12 counts of criminal offences in Criminal case No. 322 of 2020 before Kithimani Law Courts. The applicant took plea of not guilty in all the counts. Three prosecution witnesses testified.

2. On December 7, 2020, the respondent/prosecution through Mr. Opundo sought an adjournment on the basis that he was sick but he had three witnesses in court. Mr. Muema Counsel for the Applicant was ready. The case was adjourned by consent of parties to January 26, 2021.

3. However Mr. Opundo further informed court that he wanted to serve an audit report to the applicant/accused person. According to Mr.Opundo, the audit report had not been completed hence it was unavailable at any other time.

4. Mr. Muema for the applicant opposed the prosecution/respondent’s counsel request on the basis that the pre-trial directions had already been undertaken and there was no mention of the report. Counsel submitted that the report is date January 21, 2020 and the first witness testified on January 27, 2020. According to counsel, he did cross-examine the witnesses as to whether an audit had been done. Counsel attacked the respondent for supplying documents in piecemeal. He stated that he had just been supplied with the witness statement of Onesmus Kimanzi dated May, 2019 in court.

5. In response, Mr. Opundo stated that the prejudice to be suffered by the accused person is curable by recalling the witness and the maker of the report will come to court for cross-examination. According to counsel, the auditor, who is a government auditor who might have signed the report on January 21, 2020 but had not supplied the report.

Trial Court’s Orders 6. On the same day, the trial magistrate ordered as follows:-“CourtThe prejudice highlighted by the defence is curable in my view. The witnesses who have already testified can be recalled.The explanation as to the audit document is also plausible. It does not necessarily mean that the date a report is signed is the date the same is availed.Hearing has been scheduled to January 26, 2021 which is almost 2 months away hence defence has adequate time to prepare.It is expected also that they shall be able to cross-examine the maker of the document. Rules are not harsh mistresses but handmaidens of justice. I therefore do not find merit in the objection and allow the document to be supplied to the defence.”MuemaI ask for a certified copy of the ruling.CourtA copy of the same be availed to the defense at their costs.Hg on 26/1/2021. ”

Notice of Motion 7. Vide the notice of motion dated December 18, 2020 before this court seeking revision of the trial court orders, the Applicant was granted stay of proceedings pending the determination of the application. The applicant seek the following orders:-1. That the application be certified urgent and the same be heard ex parte at first instance.2. That pending the revision of the orders in Criminal Cause No. 34 of 2019 Kithimani Law Courts there be stay of proceedings in Criminal Case No. 34 of 2019 Kithimani Law Courts.3. That the cost of this application be provided for.

8. The application is supported by the applicant’s affidavit sworn on the same day as the application. The applicant averred that on December 7, 2020 when the matter was coming up for hearing, the respondent sought to introduce an audit report that had not been supplied to the defence during pre-trial and the trial court allowed the same to be served upon the defence despite it being dated January 24, 2020 which was a month before the three key witnesses testified.

9. According to the applicant, he has a right to a fair hearing enshrined under article 50(1)(j) of the Constitution, 2010 which provides that the accused person shall be informed in advance of the evidence the prosecution intends to rely on and to have a reasonable access to that evidence. He averred that it was in the interest of justice that the orders sought are granted and allow his application. According to the applicant, the respondent will not be prejudiced in any way if the orders sought are granted by this court.

Grounds of Opposition 10. In opposition to the application, the respondent filed grounds of opposition stating as follows:-1. That this application is misconceived, incompetent and amounts to abuse of the court process and should be dismissed in its entirety.2. That the applicant was well aware of the status of the audit report was before the matter proceeded for trial.3. That the applicant’s advocate requested for an adjournment when he came on record to be conversant with the case proceedings hence ought to be aware of the same.4. That once the report was ready and brought to the attention of the prosecution, he disclosed the same to the court and the defense.5. That the disclosure of new evidence is a continuous process and does not stop at the pre-trial stage.6. That he cannot purport to seek review since, yet he will have ample time to go through the documents and recall the relevant witness for cross-examination.7. That he cannot cite prejudice to the applicant based on the production of the documents yet the same shall be produced by the prosecution to prove its case.8. That this application is misconceived, frivolous, vexatious and abuse of the court process.

11. The respondent urged this court to dismiss the application and uphold the trial court orders to allow the trial continue to its logical conclusion.

Replying Affidavit 12. In addition, the respondent’s counsel, Martin Mwongera swore a replying affidavit on November 4, 2021. He averred that the audit report which is the basis of the application herein was not ready when the applicant was being supplied with the other documents and when the report was ready, the prosecution was made aware and informed the court of the same. According to counsel, the defence would have time to go through the report since the matter was allocated another hearing date a month later.

13. He averred that the process of availing evidence by the prosecution does not stop at pre-trial stage but it is a continuous process throughout the trial. According to counsel, the applicant has a right to recall the witnesses who have testified for cross-examination if need be. According to the counsel, the applicant will not suffer any prejudice once the audit report is adduced as evidence. to the respondent, the application is ill-advised, frivolous and an abuse of the court process.

Applicant’s Submissions 14. In support of the application, it is submitted on behalf of the applicant that the applicable law on revision to start with is article 165(6) of the Constitution,2010(CoK) which provides for supervisory jurisdiction of the High Court over subordinate Courts as well as section 362 and 364(1) of the Criminal Procedure Code(CPC).

15. As to whether this Court should grant the orders sought by the Applicant, it is submitted that article 50(2) provides that every accused person has the right to a fair trial which includes under (j) the right to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence. It is submitted that the Respondent failure to supply the witness statement and documents in advance is a violation of the accused’s right to fair trial as enshrined under article 50(2)(j) of the Constitution. According to the applicant, the orders of the trial court should be reviewed and quashed.

16. As regards the right to fair trial, reliance was placed on the cases of Joseph Ndungu Kagiri vs. Republic[2016] eKLR where the court found that the failure to provide the appellant and his co-accused with the prosecution witness statements in advance as provided for under article 50(2) (j) violated their constitutional right to fair trial and vitiated the entire trial and it is immaterial that they were ultimately acquitted. The court went ahead to state that the failure to provide the accused person with the witness statements prior to the trial was an illegality and a breach of their rights to a fair trial.

17. In Alex Kwaso OtienovRepublic[2019]eKLR the court stated that:-“17. It is trite that fair trial is the object of criminal procedure. The court is thus under an obligation to ensure that the prerequisite of provision of witness statements and copies of exhibits are provided to the accused before the start of the case and that failure to do so prejudices the accused whatever the outcome may be..”

18. Regarding the disclosure by the prosecution being continuous, it is submitted that the process is subject to certain limitations or parameters. According to the Applicant disclosure cannot be endless without justification and in a trial the disclosure process must meet certain criteria inter alia:-i.The additional evidence is not intended or likely to ambush the defence;ii.It is not intended to fill in the gaps created by the defence;iii.The notice is sufficient for the defence to prepare adequately;iv.The intended evidence could not have been reasonably available or foreseeable before commencement or early stages of the trial.

19. The fact that disclosure is continuous is not an open ended cheque subject to abuse. See Republic v Sospeter Odek Ojaamong & 8others [2019]eKLR where the court held that:-“39. That does not mean that the prosecution shall have an open ended cheque to introduce new evidence as they wish at any stage of the proceedings without leave of the court which shall then weigh the application and the implication or necessity of the evidence sought to be introduced against the interest of justice.”

20. It is submitted that theprosecution had called all the witnesses and only one was remaining hence the prosecution intention to call additional evidence was to close the gaps exposed by cross-examination. According to the applicant, there was also no adequate notice given which affected the accused ability to prepare and defend himself hence in violation of article 50(2)(j).

Respondent’s Submissions 21. On behalf of therespondent, it is submitted that article 50(2)(j) of the Constitution provides for the right to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence. It is submitted that the audit report was not ready and the same had been communicated to the court in the presence of the applicant herein. According to the respondent, that once the report was ready, the same was communicated in the presence of the defence and the matter was not to proceed for hearing on the material day but later when the defence had time to go through the report and prepare adequately.

22. Reliance was placed on section 146(4) of the Evidence Act, cap. 80 that the court can recall witnesses for further examination in chief or cross-examination. According to the respondent, the defence counsel has the right to be allowed to recall the witnesses that have already testified for further examination touching on the audit report. Reliance was placed on R vs. Ward case cited in Dennis Edmond APAA &2 Others vs EACC &another[2012]eKLR where the Court of Appeal of England was unanimous that:“…..the prosecution were under a duty, which continued during the pre-trial period and throughout the trial to disclose to the defence all relevant scientific material whether it strengthened or weakened the prosecution case or assisted the defence case and whether or not the defence made specific request for disclosure…”

23. In Dennis Edmond APAA &2others vs EACC &another(supra) the court held that:-“…Furthermore, the words of article 50(2) (j) that guarantees the right “to be informed in advance” cannot be read restrictively to mean in advance of the trial..”

24. In the same vein, the court in Thuita Mwangi & 2others v EACC & 3others(2013) eKLR stated that:-“The disclosure of evidence, both inculpatory and exculpatory, is easily dealt with during the trial as the duty to provide the material is a continuing one and the magistrate is entitled to give such orders and directions as are necessary to effect this right..”

25. According to the respondent, the duty is cast upon the prosecution to disclose all the evidence, material and witnesses to the defence during the pre-trial stage and throughout the trial. That the defence should be given adequate facilities to prepare his or her defence whenever disclosure is made during the trial.

26. The respondent urged this court to find that the application lacks merit and should be dismissed in its entirety.

Determination 27. The court considered the application, affidavits in support and in opposition to, grounds of opposition, submissions filed and the authorities relied upon.

28. The applicants application is premised on section 362 of the CPCwhich confers this court with supervisory powers of revision over the Subordinate Courts. Section 362 provides:-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.

29. The High Court supervisory powers over the subordinate courts are well envisaged in the CoK under article 165 (6) and (7):-(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.”

30. It was stated by the High Court of Malaysia in Public Prosecutor v Muhari bin Mohd Jani andanother [1996] 4 LRC 728 at 734, 735:“…..The object of revisionary powers of the High Court is to confer upon the High Court a kind of “paternal or supervisory jurisdiction” in order to correct or prevent a miscarriage of justice. In a revision the main question to be considered is whether substantial justice has been done or will be done and whether any order made by the lower court should be interfered with in the interest of justice… If we have been entrusted with the responsibility of a wide discretion, we should be the last to attempt to fetter that discretion…This discretion, like all other judicial discretions ought, as far as practicable, to be left untrammeled and free, so as to be fairly exercised according to the exigencies of each case”.

31. According to Ogembo J. in Mbuvi Gideon Kioko Mike Sonko v Ethics and Anti-Corruption Commission & another; Peter Mbugua Kariuki & 15 others (Interested Parties)[2021] eKLR:-“For this court to judiciously exercise its revisionary powers under the above section, it is imperative that the applicant moving the court, or the court, acting “suo moto” must be convinced of the incorrectness, illegality or impropriety in the order or finding of the lower court…”

32. The Applicant has urged this court to revise the orders issued by the Trial magistrate GO Shikwe (PM) in Criminal Cause No 34 of 2019 at Kithimani Law Courts. On December 7, 2020, the trial magistrate dismissed the applicants objection and ordered that the audit report to be supplied to the accused person in court after 4 witnesses had testified. According to the applicant, his right to a fair trial envisaged under article 50(2)(j) of the CoK was infringed by the prosecution.

33. Article 50(2)(j) provides:-“(2)Every accused person has the right to a fair trial, which includes, the right-(j)to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence;..”

34. Aptly put by the Supreme Court of India in Natasha Singh v CBI[2013] 5 SCC 741:-“Fair trial is the main object of criminal procedure, and it is the duty of the court to ensure that such fairness is not hampered or threatened in any manner. Fair trial entails the interests of the accused, the victim and of the society, and therefore, fair trial includes the grant of fair and proper opportunities to the person concerned, and the same must be ensured as this is a constitutional, as well as a human right. Thus, under no circumstances can a person’s right to fair trial be jeopardized”.

35. The operative words in article 50(2)(j) are; “to be informed” and “to have reasonable access” to “the evidence the prosecution intends to rely on”.

36. According to Mativo J. in Joseph Ndungu Kagiri v Republic[2016] eKLR.“Article 50(2)(j) correctly interpreted means that an accused person should be furnished with all the witness statements and exhibits which the prosecution intends to rely on in their evidence in advance. The sole purpose of doing so is so is to avail the accused person sufficient time and facilities to enable him prepare his defence and challenge the prosecution’s evidence at the opportune time both in cross-examination and in his defence. This provision must then be read together with Sub-article 2(c) which provides that every accused person has right to a fair trial which includes the right to have adequate time and facility to prepare a defence.The latter cannot be met if the accused is not furnished with the evidence the prosecution intends to rely on ahead of the trial. If this goal is not met, it means that the court shall be misinterpreting the letter and spirit of the supreme law of the land thereby belittling the Constitution and the very purpose for which it was intended. Courts must therefore be very keen in ensuring that this provision is adequately given regard to so as to ensure that the rights of an accused person are not violated.”

37. It is submitted by the prosecution that the duty of disclosure in criminal trial is a continuous process throughout the trial. To the applicant, the audit report and calling its make was meant to seal the loopholes in the prosecution case since 4 witnesses had already testified.

38. I associate myself with the court in Thuita Mwangi and 2 Others v Ethics and Anti-corruption Commission and 3 Others [2013] Petition 153 of 2013 consolidated with Petition 369 of 2013 where it was held that;“The right to be provided with material the prosecution wishes to rely on is not a one-off event but is a process that continues throughout the trial period from the time the trial starts when the plea is taken. The reality is that there will be instances where all the information relating to investigation may not all be available at the time of charging the suspect or taking the plea. The disclosure of evidence, both inculpatory and exculpatory, is easily dealt with during the trial as the duty to provide the material is a continuing one and the magistrate is entitled to give such orders and directions as are necessary to effect this right. When the fresh material is provided, the accused is entitled to have the time and opportunity to prepare their defence.”

39. In R v Ward {1993} 2 ALL ER 557 the Court of Appeal in England was unanimous that:-“The prosecution’s duty at common law is to disclose to the defence all relevant material, i.e. evidence which tended either to weaken the prosecution case or to strengthen the defence, required the police to disclose to the prosecution all witness statements and the prosecution to supply copies of such witness statements to the defence or to allow them to inspect the statements and make copies unless there were good reasons for not doing so. Furthermore, the prosecution were under a duty, which continued during the pre-trial period and throughout the trial to disclose to the defence all relevant scientific material, whether it strengthened or weakened the prosecution case or assisted the defence case and whether or not the defence made a specific request for disclosure. Pursuant to that duty the prosecution were required to make available the records of all relevant experiments and tests carried out by expert witnesses..”

40. InJoseph Ndungu Kagiri v Republic(supra) , Mativo J stated that:-“Furthermore, the words of article 50(2)(j) that guarantee the right “to be informed in advance” cannot be read restrictively to mean in advance of the trial. The duty imposed on the court is to ensure a fair trial for the accused and this right of disclosure is protected by the accused being informed of the evidence before it is produced and the accused having reasonable access to it. This right is to be read together with the other rights that constitute the right to a fair trial. Article 50(2) (c) guarantees the accused the right, “to have adequate facilities to prepare a defense.”

41. The duty of disclosure under article 50(2) (j) CoK 2010 cannot be restrictively applied to mean in advance of the Trial. Only article 50(2) (c) of CoK2010 is to the effect that the accused must be accorded an opportunity to prepare for the defense case.

42. In the case, the trial magistrate allowed the audit report to be supplied to the defense and fixed another hearing date on January 26, 2021. The accused person had been given more than a month to go through the audit report in preparation for the hearing. The court’s view is that this does not prejudice the defense constitutional right to fair trial. The applicant would have an opportunity to cross-examine the maker of the report. The prosecution explained the reason why the report had not been availed in advance before Trial, in that it had not been availed and the prosecution could not avail what it did not have in its possession. in court the prosecution advocate sought permission from court in the presence of the applicant and his advocate to supply the report and later call the maker of the report. This court’s view is that article 50(2) (j) CoK 2010 was complied with and/or adhered to by the prosecution and the trial magistrate issued the orders in accordance with the tenets of justice for all parties and the case. I find no reason to fault the trial magistrate for his decision.

43. The trial court was ready to applysection 362 CPCand recall witnesses if need arose, the explanation by prosecution was plausible and the defense had about 2 months to consider the report.

Disposition1. In the circumstances, the notice of motion dated 18th December lacks merit. The trial shall proceed in accordance with the subsequent directions to be issued by the trial magistrate and to ensure that the accused person has sufficient time to prepare for the defense.

2. Consequently, the Notice of Motion is dismissed with no order as to costs.

It so ordered.

DELIVERED SIGNED & DATED IN OPEN COURT ON 12THMAY 2022 IN MACHAKOS (VIRTUAL CONFERENCE)M.W. MUIGAIJUDGE