[2022] KEHC 16260 (KLR)

Marghabai & another v Republic (Criminal Revision E063 of 2022) [2022] KEHC 16260 (KLR) (Crim) (5 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16260 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Revision E063 of 2022

JM Bwonwong'a, J

December 5, 2022

Between

Sunil Patel alias Patel Sunil Mafatlal Marghabai

1st Applicant

Intersparex Limited

2nd Applicant

and

Republic

Respondent

(Being an application for revision arising of the ruling delivered on 27th January 2022 by Hon S. Shitubi, C.M, in Milimani Chief Magistrates Court in Criminal case No. 1621 of 2018, Republic versus Sunil Patel alias Patel Sunil Mafatlal Marghabai and Intersparex Limited)

Ruling

1. The applicants have been charged with 4 counts of claiming value added relief not entitled contrary to section 97 (b) as read with section 104 (3) of the Tax Procedures Act, 2015 and 2 other counts of defaulting on an obligation imposed under the tax law contrary to section 97. They have also been charged with 7 other additional counts under the Tax Procedures Act, 2015.

2. During the trial, the applicants filed an application dated March 2, 2021 seeking an order directing the Director of Public Prosecutions (DPP) to produce various documents relating to the accounts of two companies namely Kishna Enterprises Limited and Shanlester Enterprises Limited.

3. The applicants also sought a ‘Norwich Pharmacal Order’ against the Diamond Trust Bank Limited for various documents stated in their application; that is, an order granted to a third party victim who finds himself mixed up in the wrong doing and needs to force disclosure of documents or information to put the record straight.

4. In response to the application, the prosecution filed grounds of opposition. The application was canvassed by way of written submissions and the magistrate’s court delivered its ruling on January 27, 2022 dismissing the application.

5. The applicants have now approached this court by way of notice of motion dated 4th April 2022 pursuant to the provisions of articles 35 (b), 50 (1), (2) (j) & (k) of the Constitution of Kenya, section 42A, 362, 364 and 365 of the Criminal Procedure Code (Cap 75), Laws of Kenya and all other enabling provisions of the law.

6. The applicants also seek a review of the ruling delivered by Hon S.M Shitubi (C.M) on January 27, 2022 dismissing their application by ordering that the trial court take into consideration their written submissions dated December 14, 2021 and filed in court on December 15, 2021.

7. The applicants have also sought an order that the notice of motion dated March 2, 2022 be heard de novo before a different Magistrate.

8. The application is premised on the grounds that when the trial magistrate directed the application to be canvassed by way of written submissions, the applicants filed their submissions dated December 14, 2021. However, for unknown reasons the trial court did not acknowledge the same in the ruling issued on January 27, 2022. Further, that the non-reference to their written submission is a grave mistake apparent on the record. It is the applicants’ case that that failure, neglect and/or refusal of the trial court to consider their written submissions is tantamount to denying them an opportunity to be heard. They have also contended that this application is made in the interest of fair administration of justice and no party to the proceedings is likely to suffer any prejudice should the orders sought be granted.

9. The application is also supported by an affidavit dated April 4, 2022 sworn by the 1st applicant. He reiterates the grounds in support of the application on the face thereof. He further maintains that if the proceedings before the trial court are not stayed, he is likely to suffer injustice and prejudice. He urges this court to consider his application for revision and order that his application dated March 2, 2021 be heard de novo before a different magistrate.

The respondent’s grounds of opposition 10. In response to the application, the respondent has filed six grounds of opposition dated April 12, 2022. Those grounds are as follows. The prosecution supplied all material evidence in their possession to the defence; the hearing date was taken when the trial court satisfied itself that the pre-trial conference had been complied with; the defence has made similar applications more than once and different trial magistrates have ruled against them at all material times; the prosecution cannot be compelled to supply that which is not in their possession and document not relied on in trial; the prosecution cannot assist the applicants in advancing their defense strategy; the applicants have not shown the illegality and impropriety of the ruling delivered by the lower court.

The application was canvassed by way of written submission.

The applicants’ written submissions 11. Mr Pravin Bowry, S.C for the applicants submitted that the documents sought by the applicants to be produced are vital to the proceedings in the lower court and would accord the applicants their constitutional rights to a fair hearing. Further that the grounds advanced by the applicants clearly indicate that the applicants were denied an opportunity to be heard as a result of the trial court failing to consider their written submissions and authorities, which clearly outlined the legal basis of the application.

12. Senior Counsel argued that the applicants have demonstrated the illegality and impropriety in the ruling delivered by the trial court. He relied on the case of Director of Public Prosecutions v Joseph Murimi Mugweru [2020] eKLR, which provides for supervisory jurisdiction of the High court over subordinate courts and tribunals. He also referred to the case De Souza v Tanga Town Council [1961] EA 377, in which the court held that where rules of natural justice have not been observed, the resulting decision is void.

13. He urged the court to exercise its jurisdiction and allow the application as prayed.

The respondent’s written submissions 14. Ms. Oduor Millicent, learned prosecution counsel filed written submissions dated May 24, 2022. She submitted that the applicants have failed to properly invoke the revisionary jurisdiction of this court as required under section 364 (5) of the Criminal Procedure Code (Cap 75), Laws of Kenya. She argued that the order of the trial court being appealable, the applicants should have filed an appeal instead of a revision. Further, that the applicants have not demonstrated any illegality, incorrectness or impropriety of the order of the trial court.

15. Counsel further submitted that duty of disclosure of the prosecution is limited to documents the prosecution intends to rely on and which documents are within their possession or in possession of state agencies, where they can reasonably acquire them. She maintains that the prosecution already supplied the applicant with all relevant documents. That the application sought additional documents from third parties who are not a party to the criminal proceedings in the trial court. She cited the Court of Appeal decision in Diana Kethi Kilonzo v Republic [2016] eKLR, where it was held that it is impossible for a court to compel a party, even with the awesome power of state, to disclose that which it does not have its possession.

Issues for determination 16. I have considered the application, the response and the written submissions of the parties.

17. The issue that arises for determination is whether the applicants were condemned unheard.

Analysis and determination. 18. Article 165 (6) and (7) of the Constitution of Kenya 2010 entrenches the supervisory jurisdiction of the Court in the following terms:“165 (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.”

19. Additionally, the power of this court in its revisionary jurisdiction is founded under Section 362 of the Criminal Procedure Code which provides that:“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.”

20. The revisionary jurisdiction exists in cases of all orders, interlocutory or final of the subordinate court, save that an order of acquittal may not be converted into an order of conviction. Moreover, the court may exercise its jurisdiction to revise an order suo motu, despite the existence and or exercise of right of appeal by the aggrieved party who brings the matter requiring revision to the attention of the court by application for revision or otherwise. This was the holding of Charles Gitau v Republic [2008] eKLR. where Ojwang J, as he then was referred to the case of R. v Ajit Singh s/o Vir Singh [1957] E.A. 822 and observed as follows: -“In that case the Court clarified the situation in which the revision jurisdiction might be exercised even when the matter arising was one in which appeal lay (p.824 ? Rudd, Ag. C.J.): ? We are of opinion that sub-s.(5) is not intended to preclude the Supreme Court from considering the correctness of a finding, sentence or order merely because the facts of the matter have been brought to its notice by a party who has or had a right of appeal. We do not think this sub-section is intended to derogate from the wide powers conferred by s.361 and s.363 (1). To hold that sub-s. (5) has that effect would mean that this court is powerless to disturb a finding, sentence or order which is manifestly incorrect? merely because the aggrieved party, who might well be an ignorant person, has not exercised a right of appeal but has asked for revision and thus brought the matter to the notice of the court. In our judgment the court can in its discretion, act suo moto(sic)even where the matter has been brought to its notice by an aggrieved party who had a right of appeal……”

21. This decision supports the submission of the applicants that the High Court’s jurisdiction for revision is not ousted by the existence of a right of appeal. I find that the applicants have no right of appeal against the order of the trial court dismissing their application seeking the production of documents from Diamond Trust Bank. The contention by the respondent that the applicants had a right of appeal is not correct as it lacks legal basis. The respondent did not point out the statutory basis that would have enabled the applicants to appeal against the impugned order. Such statutory does not exist.

22. This court has a wide discretion to revise orders of the trial court and the discretion is to be exercised on a case by case basis having regard to the different circumstances of each case. Clearly the court has jurisdiction under the Constitution and the Criminal Procedure Code to revise the order before the court. The only question is whether the court will in its discretion exercise that jurisdiction. That discretion is to be exercised judicially in the light of the settled principles of the court with regard to the nature of order sought to be revised, and whether the decision is “a finding, sentence or order which is manifestly incorrect” or it has resulted in a miscarriage of justice, or, in the words of the applicants, it has caused an injustice.

23. The applicants seek the revision of the ruling delivered by the magistrate court on January 27, 2022, on the ground that their submissions were not considered when the court delivered the said ruling. A perusal of the subordinate court record shows that indeed the said submissions are still not in the file. However, in the annexture attached in support of the present application, the applicants have attached stamped copies of the written submissions and their list and bundle of authorities. Having so stated, this explains why in the ruling delivered on January 27, 2022 indicates that only the respondents filed their written submissions.

24. In light of the foregoing, the applicants submitted that the court in failing to consider their submissions, which they had already filed denied them the opportunity to be heard and thus making the impugned ruling and improper. On the other hand, the respondent argued that no illegality, incorrectness or impropriety of the order of the trial court had been demonstrated.

25. I have taken the liberty to read through the said submissions and the ruling the subject of this application for revision. In the said ruling, the subordinate court relied on the 1st applicant’s supporting affidavit and the attached annextures. The court also considered the grounds of opposition raised by the respondent dated June 29, 2021. I need not reproduce the submissions which were allegedly not considered by the court; since they are a replica of the grounds upon which the application is based, alongside the supporting affidavit.

26. I find that the applicants’ submissions were not considered by the trial court before making its determination. I also find that the applicants were condemned unheard in respect of their application. The right to be heard is so fundamental in the administration of justice, that if a party has not been heard the resulting order or ruling is a nullity. Furthermore, it does not matter that the trial court would still have the dismissed the application, even it had considered their submissions.

27. I find as persuasive the decision of the in De Souza v Tanga Town Council [1961]EA 377, in which the court observed that if the principles of natural justice are violated in respect of any decision, it is indeed immaterial whether the same decision would have been arrived at, in the absence of the departure from the essential principles of natural justice. That decision must be declared to be a no decision.

28. Furthermore, I find as persuasive the decision of the court in Charles Gitau v Republic [2008] e-KLR, where Ojwang J, as he then was, cited with approval the decision of the Supreme Court of Kenya (the name of the current High Court during the colonial period) in the case of R. v Ajit Singh s/o Vir Singh [1957] E.A. 822, in which it was held that even where a party has a right of appeal, the existence of such a right cannot prevent the High Court from exercising its revisionary jurisdiction.

29. I have perused the record of the proceedings of the trial court. Had the trial considered the applicants’ application it would have found that the prosecution had embarked on a selective disclosure regime; in that it had left out materials that had been collected by KRA in its investigation. This is clear from paragraph 5 of the supporting affidavit of the first applicant (Sunil Patel) in the lower court that where it is averred that the Kenya Revenue Authority in their letter dated April 17, 2018, which is marked as annexure “SN 4”, pointed out that Shanlester Enterprises and Kishna Enterprises, among other business entities only existed on paper “as they do not buy or sell any goods neither do they have an office.”

30. According to the notice of motion in the lower court, the applicants sought the following orders in relation to the two companies (Shanlester Enterprises, bank account No. 01413XXXX and Kishna Enterprises, bank account No. 016567XXX). First, all account opening forms of the two companies held by Diamond Trust Bank Kenya Limited.

31. Second, signatories and specimen of the signatories of the two accounts. Third, monthly bank statements from inception to date of both accounts. Fourth, certified copies of all RTGS payments received from Intersparex Limited. Fifth, all correspondence received by the bank in respect of the two companies related to the two bank accounts from whosoever. Sixth, records of payments made by the bank into VATaccount of the two companies and all supporting documents and vouchers.

32. It is equally clear from the foregoing that the orders sought that the materials sought to be disclosed were relevant to the defence of the applicants. The prosecution ought to disclose them to the defence as required by the 2010 Kenya Constitution in article 50 (2) (j); since the materials sought to be disclosed are constructively in the possession of the Kenya Revenue Authority. The prosecution should disclose all materials in their possession including the ones they are not relying upon to prove their case.

33. The authorities cited by counsel for the respondent are not persuasive and inapplicable in the instant application.

34. I find that this court is vested with jurisdiction both by sections 362 as read with section 364 of the Criminal procedure Code and article 165 (6) (7) of the 2010 Constitution of Kenya to revise the ruling and order of the lower court in the instant application.

35. It therefore follows that the application succeeds and I hereby allow it with the result the ruling and/or order of the lower court is hereby set aside.

36. I also find that it is in the interests of justice that the instant application be determined by another magistrate with competent jurisdiction.

37. Pursuant to this court’s powers under section 81 of the Criminal Procedure Code (Cap 75) Laws of Kenya, I hereby direct the trial of this case together with the applicants’ application should be heard and determined by another magistrate of competent jurisdiction.

RULING SIGNED, DATED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 5TH DAY OF DECEMBER 2022J M BWONWONG’AJUDGEIn the presence of-Mr. Kinyua: Court AssistantMr. Kunsh holding brief for Bowry (SC) for the accused/applicants.Mr. Otieno for the Respondent