[2022] KEHC 13609 (KLR)
The court found that the items sought to be released by the applicant were exhibits in the ongoing criminal cases before the lower court. The trial court is fully empowered to determine all matters related to the exhibits, including the legality of their possession by the police. Granting the orders sought would...
Source-derived case information.
- Citation
- [2022] KEHC 13609 (KLR)
- Parties
- Applicant: Benmark Makenzi; Respondent: Republic (D.P.P)
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 91 of 2019
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Notice of Motion for Stay and Release of Property
- Outcome
- application dismissed
- Judges
- PJO Otieno
- Legal Topics
- Stay of Proceedings, Release of Exhibits, Trial Court Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benmark Makenzi
Applicant
Republic (D.P.P)
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Notice of Motion for Stay and Release of Property
Legal Issues
- 1 Whether the High Court should stay proceedings in the lower court criminal cases pending determination of the application.
- 2 Whether the High Court should order the release of items held by the police as exhibits in the ongoing criminal cases.
- 3 Whether the application amounts to interference with the trial court's jurisdiction and prosecutorial independence.
Ratio Decidendi
The court found that the items sought to be released by the applicant were exhibits in the ongoing criminal cases before the lower court. The trial court is fully empowered to determine all matters related to the exhibits, including the legality of their possession by the police. Granting the orders sought would amount to interference with the trial court's proceedings and the prosecution's mandate, potentially undermining their institutional and decisional independence. The application was deemed to be an attempt to delay and preempt the lower court proceedings, lacking merit, and was accordingly dismissed. The court directed that the lower court file be returned for the matter to...
Court Disposition
application dismissed
Orders
- The application is dismissed for lack of merit.
- Lower court file No. CMCCRC. No. 1391/2018 to be remitted back to the trial court forthwith.
Full Case Text
Judgment text and source record
22 paragraphs
Makenzi v Republic (D.P.P) (Miscellaneous Criminal Application 91 of 2019) [2022] KEHC 13609 (KLR) (7 October 2022) (Ruling)
Neutral citation: [2022] KEHC 13609 (KLR)
Republic of Kenya
In the High Court at Kakamega
Miscellaneous Criminal Application 91 of 2019
PJO Otieno, J
October 7, 2022
Between
Benmark Makenzi
Applicant
and
Republic (D.P.P)
Respondent
Ruling
1. I have perused the Notice of Motion dated 28/10/2019 and seeking a raft of orders being:-“(a)That the Honourable Court be pleased to issue a stay order in Criminal Case No. 1391 of 2018 at the Chief Magistrate’s Court Kakamega until the determination of this Petition, and Court order to release all his items in the hands of police be issued.(b)That the Honourable Court also be pleased to issue another stay order in Criminal Case No. 1505 of 2019 respectively, at the Chief Magistrate’s Court Kakamega until the determination of this Petition in the interest of justice, also all his items in the hands of police to be released back to his bona fide ownership.(c)That the Honourable Court be pleased to give direction as to how the same orders will take place to meet the ends of justice by issuing an order to avail all these files as above for hearing purposes.”
2. I have equally perused the Affidavit of the Applicant sworn and filed in support thereof as well as the written submissions filed on the 31. 3.2021.
3. I note that the Applicant is facing three different Criminal Cases at the lower Court being CMCCR. Case No. 1391/2018, 1504/2019 and 1505/2019. Of the three files only Criminal Case file No. 1391/2019 has been availed to me for perusal. The Court’s perusal of that file reveals that the accused faces the charges of breaking into a building and committing a felony, preparation to commit a felony, having or conveying suspecting stolen property, forging or receiving forged bank notes and handling stolen property.
4. The file is substantially dealt with, with a total of five (5) witnesses having been heard and six more to be called. The evidence on record reveal that the items taken from the Applicant are the subject of the charges and are thus exhibits. It would appear that the lower court file in CMCCRC. No. 1391/2018 was brought to this Court pursuant to the directions by the Deputy Registrar dated 20/2/2022. I consider that to have been an error because the application is not one for revision questioning the conduct of the proceedings before that Court. That notwithstanding, however, I have perused the evidence taken in that file in line with the dispositions by the Applicant and I do find that the items and property the Applicant seeks to be ordered released to him are indeed treated as exhibits before the trial. I consider that even though I have not read the two other files, the items and property subject thereto may as well be intended as exhibits by the trial Courts.
5. I consider the trial Court to be sufficiently equipped to deal with all matters connected to the case before them including the question whether the possession of the items and property by the police was legal or otherwise. The flip side is that to order the same release by this Court would be to interfere with the manner the trial Courts would proceeds with the case before them and to direct the prosecution on how to execute their mandate. Such could affront the institutional independence of the Prosecution under article 167 and the decisional independence of the Court.
6. I do find that the application is designed to delay and preempt the proceedings before the trial Courts, lacks merit and the same is hereby dismissed.
7. Let the lower Court file No. CMCCRC. No. 1391/2018 be remitted back to that Court forthwith for same to be mentioned before the Judicial Officer seized of the matter within twenty one (21) days from today for purposes of having the matter progressed and heard on the merits.
DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 7TH DAY OF OCTOBER, 2022. PATRICK J. O. OTIENOJUDGEIn the presence of:No appearance for the ApplicantMs. Chala for the RespondentCourt Assistant: Polycap Mukabwa