[2022] KEHC 2763 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CRIMINALREVISIONCASEE030 OF 2021

LONGDA MELUA LAISA ......APPLICANT

VERSUS

REPUBLIC ..........................RESPONDENT

RULING

The application, LONGDA MELUA LAISA, has moved this court by way of notice of Motion dated 10. 2.2021. The application at paragraph 3 seeks the substantive prayers that:

“An order in the nature of revision do issue calling for the record and examination of the proceedings of Makadara Criminal Case No. 2217 of 2019, Republic Versus Longda Melua Laisa (formerly Criminal Case No. 3178 of 2018 Republic Versus Longda Melua Laisa alias Musa) for the purpose of satisfying your Lordship as to the correctness, legality or propriety and regularity of the said proceedings.”

The application is supported by the affidavit of the advocate for the applicant. Same was opposed by the state/Respondent.

It was submitted by Mr. Simiyu, counsel for the applicant, that the application seeks to have the orders of the trial court of 17. 8.2019, closing Criminal Case No. 3178/2018 revised. That the prosecution side closed the case and opened a new file through consolidation, being Criminal Case No. 2217/2019.

It was submitted that the illegality therein is that the prosecution cannot close the file No. Criminal 3178/2018. When the hearing of the same had reached defence case. That the right to amend only applies before the close of prosecution’s case.

Secondly, it was argued that since the same court had already made a ruling of case to answer under section 210 of the Criminal Procedure Code, it could not again rule that the case do start de novo. That the court does not have powers to set aside its own ruling.

In response to this application, Mr. Mutuma for the state submitted that the applicant had initially proceeded with Criminal Case No. 3178/2018, before his co-accused was arrested, necessitating consolidation of their 2 cases. Counsel submitted that since the facts of the case are the same. There is no illegality in the orders of the trial court.

I have considered the submissions of the 2 learned counsel. I have also perused the proceedings in the 2 files before the lower court. As I understand it, it is the applicant’s case that since the initial case of the applicant (Criminal 3178/2018) had already reached defence stage, it was improper for the trial court to order a consolidation of this case with Criminal 2217/2019, with the resultant effect being that the case of the applicant would start de novo.

A perusal of the record in Criminal Case No. 3178/2018 confirms that the prosecution closed its case on 2. 5.2019. However, on 13. 8.2019, it is the defence side who applied for re-opening of the prosecution’s case and the recall of prosecution witnesses, PW1 to PW6. These were basically all the prosecution witnesses who had given evidence leading to the close of the prosecution’s case. The application to re-open the prosecution’s case was objected to by the state. The court, however, dismissed the objections of the prosecution and ordered that the prosecution’s case be reopened.

This was still the position up to 29. 10. 2019 when the order to consolidate Criminal 3178/2018 and Criminal 2217/2019 was made. Having applied for re-opening of the prosecution’s case, and the defence application having been allowed with the prosecution’s case being ordered re-opened, the submissions of the defence that the orders for consolidation, amendment and that the case do start de novo, were made whilst Criminal 3178/2018 had reached defence stage are not trite. The prosecution’s case had been ordered opened upon the application of the defence. Nowhere was the prosecution’s case again ordered closed thereafter.

Section 362 of the Criminal Procedure Code gives this court the power and authority to revise orders of the subordinate courts. It is however encumbent on the applicant to prove the illegality, incorrectness or impropriety in the orders aggrieved of the subordinate court. In our instant case, since the prosecution’s case was ordered re-opened on application of the very applicant, I am not convinced that the case of the prosecution in Criminal Case No. 3178/2018 stands closed as submitted by the applicant. I therefore do not find any illegality, incorrectness or impropriety in the orders of the trial court of 17. 8.2019.

As to the issue of apparent bias and need for recusal on the part of the trial magistrate, I have noted that though the same were assertion on the affidavit in support of the application, the applicant made no submissions on the same. I am in the circumstances not convinced that the applicant gave any sufficient proof of bias on the part of the trial magistrate that would warrant a recusal of the Judicial Officer from the case.

The sum total is that this application of the applicant dated 10. 2.2021 totally lacks in merit. The same is accordingly wholly dismissed.

D. O. OGEMBO

JUDGE

1. 2.2022

Court:

Ruling read out in the presence of Mr. Simiyu for the applicant (with concurrence) and Ms. Joy for the state.

D. O. OGEMBO

JUDGE

1. 2.2022

Court:

The lower court file to be returned back to the trial court so that the case may proceed accordingly.

D. O. OGEMBO

JUDGE

1. 2.2022