[2022] KEHC 9797 (KLR)

Maina v Republic (Criminal Revision E347 of 2021) [2022] KEHC 9797 (KLR) (Crim) (20 July 2022) (Ruling)

Neutral citation: [2022] KEHC 9797 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Revision E347 of 2021

LN Mutende, J

July 20, 2022

Between

Peter Ruo Maina

Applicant

and

Republic

Respondent

Ruling

1. Peter Ruo Maina, the Applicant, was charged with Causing Obstruction contrary to Section 53(a) of the Traffic Act. Having denied the charge, he was taken through full trial, convicted and fined Kenya Shillings Fifteen Thousand (Ksh 15,000/-) and in default to serve 2 months imprisonment.

2. Through a Notice of Motion dated August 20, 2021, he seeks an order that that the court do examine, revise and set aside the conviction and sentence and replace it with a reversal.

3. The application is premised on grounds that the court convicted the accused on unsworn evidence as the witnesses were not sworn which was contrary to Section 151 of the Criminal Procedure Code (CPC); and that he was not supplied with statements and other documentary evidence relied on by the prosecution.

4. In an affidavit in support of the application, the applicant deponed inter alia that he was not supplied with witness statements contrary to Article 50(2) (j) of Constitution, therefore, evidence presented before that court made the trial defective and a nullity.

5. The application was canvassed through written submissions. It was urged for the applicant that the application was not opposed following the absence of a replying affidavit which was the principle pleading. That the prosecution’s submissions on record had no effect.

6. On the substantive issues, it is argued that this court has jurisdiction. That the proceedings were erroneous and that the court can scrutinize and verify correctness and regularity. That although the proceedings show that the evidence was sworn; the truth is that the testimony was not taken under oath. That the conviction was prejudicial to the accused and that this cannot be cured under Section 382 of the Criminal Procedure Code.

7. Further, that the court proceeded with the hearing without confirming whether statements had been supplied to the accused.

8. The State opposed the application and urged that the accused ought to have appealed against the orders since the evidence was taken on oath. That the applicant did not request for an adjournment to a later date when the matter came up for hearing on 23rd July, 2020 and the applicant had a duty to follow up once the file was availed.

9. The jurisdiction of this court is as per the provisions of Section 362 and 364 of the Criminal Procedure Code. Section 362 of the CPC provides thus:“The 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.’’

10. While Section 364(1) (b) of the (CPC) further provides that:In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may-in the case of any other order other than an order for acquittal, alter or reverse the order.

11. By that provision of the law, the court has power to review any order which includes a conviction but the power is exercised in respect of orders that were made in the course of proceedings or as a result of an irregularity, impropriety and incorrectness. The appellate jurisdiction of this court is wider as it covers facts and evidence of the case and the general power to overhaul the entire record of the lower court.

12. In this case the lower court record is clear, all the prosecution witnesses were sworn and their evidence was given in a language that the applicant was able to understand, he even cross examined them. When the applicant was placed on his defence he opted to give sworn evidence, which he did without raising any complaint. In the premises, the applicant has not demonstrated that the proceedings presented in the lower court, which the court has interrogated closely in the course of this revision, were manipulated in any way.

13. On whether the accused was supplied with the prosecution witness statements and other evidence, the record indicates that the applicant took plea on May 21, 2020. Thereafter, on September 21, 2020 before the matter proceeded to hearing the applicant notified the court that he had not been supplied with witness statements, and the court ordered that he be supplied with the statements.

14. The matter having been adjourned, then, when it came up for hearing on 23rd September, 2020, the court proceeded to hear the evidence of PW1, the other witnesses were heard on different dates and no complaint was raised.

15. I must, however, comment that the argument by the prosecution that the applicant ought to have sought an adjournment and it was upon him to follow up on the issue is a misconception. The duty is placed on the prosecution and the court to ensure that an accused person has been supplied with all evidence and, further, given reasonable time to prepare for his defence. (See Joseph Ndungu Kagiri vs. Republic [2016] eKLR)

15. That notwithstanding, the presumption should be that the applicant proceeded with the case after statements were availed, therefore, there was no prejudice. The record shows that the accused was able to cross examine all the witnesses, and mount a defence which meant that he understood the case against him.

16. It is important to note that issues raised should have been a purported error regarding the law hence should have been raised on appeal.

17. Therefore, this does not call for review. Consequently, the application fails and is dismissed.

18. It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 20TH DAY OF JULY, 2022. L. N. MUTENDEJUDGEIN THE PRESENCE OF:Orenge for ApplicantMs. Odour for the RespondentCourt Assistant – Mutai.