[2023] KEHC 26598 (KLR)

Mandavia v Director of Public Prosecution & 2 others (Miscellaneous Criminal Application E021 of 2022) [2023] KEHC 26598 (KLR) (Crim) (8 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26598 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Miscellaneous Criminal Application E021 of 2022

DR Kavedza, J

December 8, 2023

Between

Haren Kumar Mandavia

Applicant

and

Director of Public Prosecution

1st Respondent

Hon. Lewis Gatheru

2nd Respondent

Attorney General

3rd Respondent

(Being a revision from the Ruling of Senior Resident Magistrate Court at Makadara, Hon. Lewis Gatheru delivered on the 16th January 2023 at Makadara Law Courts in Criminal case No. 1632 of 2018)

Ruling

1. The applicant filed the notice of motion dated 16th January 2023 and prayed for orders, inter alia, that:a.There be stay of execution of the arrest warrant issued herein and any or all consequential orders emanating therefrom pending the hearing and determination of this application.b.That the court do lift the warrant of arrest issued against him by the 2nd respondent.

2. The application is premised on grounds on the face thereof and reiterated in the supporting affidavit of similar date sworn by the applicant, Haren Kumar Mandavia.

3. The averments made are that on 16th January 2023, he had a total of six (6) matters in four different courts all coming up for hearing, namely:a.Before Hon. Micheni Wendy K, Court 1- Milimani MCCR 157/2018 Republic v Haren Kumar, MCCR 868/2018 Republic v Haren Kumar & another and MCCR 158/2018 Republic v Haren Mandavia;b.Before Hon. Roseline A Oganyo (Mrs) MCCR 1872/2017 Republic v Haren Damji;c.Before Hon. R. K Ondieki (SPM) Court 4 Milimani MCCR 570/2019 Republic v Haren Kumar and Mohammed; andd.Before Hon. Lewis Gatheru (SRM) Court 9 Makadara MCCR 1632/2018 Republic v Haren Damji Mandavia.

4. He avers that on the said date of 16th January 2023, he instructed his advocate to attend the trial court and seek the court’s indulgence by placing the matter aside until 2:00pm to allow him time to attend to the other matters. His request was indeed allowed and the matter was set down for hearing at 2pm on the same date. He however avers that as he was on his way to attend the hearing, he was informed that warrants of arrest had already been issued at exactly 2pm in his absence. He maintains that the trial court failed to consider the circumstances of the case in issuing the warrants against him. Further, he will suffer irreparable loss if the orders sought are not granted.

5. In response, the respondent filed grounds of opposition on 2nd March 2023. The grounds raised are that the application is without merit as it does not disclose how the order of the trial court was illegal, improper, incorrect and/ or irregular. Further, that the application is misconceived, unsubstantiated and prematurely before this court, and thus should be dismissed.

Analysis and determination. 6. I have considered the application, the response, and the written submissions. The issue for determination is whether the applicant should be granted the revisionary orders sought.

7. The power of this court in its revisionary jurisdiction is founded under Section 362 of the Criminal Procedure Code (Cap 75) Laws of Kenya which provides that:The High Court may call for and examine the record of any criminal proceedings before any subordinate court to satisfy 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.

8. Article 165(6) of the Constitution provides that: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.

9. Consequently, this court has jurisdiction to entertain the application before me. On the merits of the application, I will begin by giving a little background of the case relevant to this application as I glean from the annexed proceedings. The applicant was arraigned before the trial court on 9/5/2019 and after pleading not guilty was granted bond of Kshs.300,000 with a surety of similar amount. The trial commenced and the prosecution called witnesses. However, on 17/11/2021, the applicant was absent and a warrant of arrest was issued. On 10/12/2021, 2/2/2022, 2/3/2022, 23/3/2022, 25/4/2022, 15/6/2022 and 15/7/2022, the applicant was still absent and the warrant of arrest was extended. On 25/7/2022, the applicant was present and explained the reasons for his absence.

10. The trial court considered the reasons advanced and upon verifying the medical documents of the accused, lifted the warrant of arrest and reinstated his bond which had been suspended on 25/4/2022. The applicant was also warned against skipping court.

11. The matter then proceeded for hearing on 31/10/2022 and a further hearing date was set on 16/1/2023. The applicant however did not attend court on 16/1/2023 and a warrant of arrest was issued against him.

12. The above recapitulation of events in this case is relevant in this revision request. The main issue is whether the order of the trial court of 16/1/2023, issuing a warrant of arrest against the applicant was proper. The record shows that prior to the date in question, being, 16/01/2012, when the accused absconded, he had previously attended court on various occasions. Furthermore, it is worth to note that the hearing date of 16/01/2023 was fixed in the presence of the applicant and his advocate.

13. It is important to emphasize, however that it is the duty of the accused to attend court at all times so required. If he fails to do so, he must provide sufficient and plausible reason for his absence, otherwise, he should be brought under a warrant of arrest, have his bond cancelled and sureties summoned and or cash bail forfeited. Previous and regular attendance in court does not excuse or permit subsequent non-attendance or preclude the court from taking one or more of the aforementioned measures. The applicant should have been fully aware of the gravity of the charges he faced.

14. Having reviewed the annexed documents, it is evident that applicant had other matters scheduled in different courts on the same date, 16/1/2023. However, the applicant’s advocate was present in court and even requested that the matter be set aside until 2:00pm to allow the applicant to attend to these other matters. Consequently, the court directed that the matter would proceed at 2:00pm. However, when the matter was mentioned at 2:12pm, neither the accused nor his advocate was present, and thus the court issued a warrant of arrest against the applicant.

15. The defence contends that the trial court did not consider the circumstances of the case adequately before issuing the warrant at precisely 2:00pm. In this regard, my view is that the advocate should have addressed the court at 2:00pm, irrespective of whether the accused had arrived, given that he had specifically requested the matter to be adjourned until that time, which means it was convenient for him.

16. In any event, the applicant ought to have presented himself before court as soon as possible and provided an explanation for his non-attendance. Such diligent actions would have persuaded the court to lift the warrant. However, instead of doing so, the applicant promptly filed a revision application on the same day.

17. Considering the foregoing, I find that the trial magistrate had sufficient grounds to issue the warrant of arrest against the applicant on 16/01/2023. The impugned decision of the trial court was legal, correct and in accordance with the law as applied to the facts of the case.

18. It is also my considered view that the revision application at this juncture is premature. The applicant should have first appeared before the trial court to explain the reasons for his non-attendance, following which the trial court could have determined whether or not to lift the warrant of arrest.

19. In this regard, I find that the notice of motion application dated 16/1/2023 is devoid of merit and is hereby dismissed.

20. It is so ordered.

RULING DATED AND DELIVERED VIRTUALLY THIS 8TH DAY OF DECEMBER 2023. ....................................D. KAVEDZAJUDGEIn the presence of: