https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12458

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MACHAKOS CRIMINAL REVISIONS NUMBERS **E137 AND E138** OF 2024 MATHENGE NDUNGI…………..………………………………APPLICANT VERSUS REPUBLIC……………………………….……………..…….RESPONDENT ***(Being an application for revision of proceedings dated 28-10-2024 in Kithimani Senior Principal Magistrate’s Court in its criminal cases numbers E868 of 2024 and E869 of 2024.)*** **RULING** In the Senior Principal Magistrate’s Court at Kithimani, the applicant was arraigned as followings; 1. In criminal case number E868 of 2024, he was charged with the one Pauline Kiura with stealing by servant contrary to Section 281 of the Penal Code particulars being that on the 27th day of April 2024 at Kaewa health facility in Kaewa location, Masinga Subcounty within Machakos County jointly with another not before the court being servants of the County Government of Machakos stole assorted medicines valued at Kshs 14,676/= the property of the said government which came into their possession by virtue of their employment. 2. In criminal case number E869 of 2024, he and three others faced charge of stealing by servant contrary to Section 281 of the Penal Code. The particulars were that on the 7th day of August 2021 at Itunduimuni health facility, Masinga location in Masinga Subcounty within Machakos County, jointly with another not before the court being servants of the County Government of Machakos, they stole assorted medicines valued at Kshs 30,745.00 the property of the said government which came into their possession by virtue of their employments. 3. There was a second count in case number E868 of 2024 against the applicant alone which was keeping in a building public stores contrary to Section 324(2) as read with Section 36 of the Penal Code. The particulars were that, on the 11th day of August 2024, at Kathiani market, Kathiani Subcounty within Machakos County, he was keeping in a building that is a rented house public stores which property was being reasonably suspected of having been stolen or unlawfully obtained. The two cases moved together and on 28-10-2024, the prosecution called five witnesses in E868 of 2024 and six witnesses in E869 of 2024 and closed its case. The record shows that on 28-10-2024 the prosecution told the court in E868 of 2024 that it had 3 witnesses with the two accused persons saying nothing before the matter took off. The applicant did not cross-examine any of the witnesses and the court reserved the matter for ruling on 26-11-2024. The ruling was never delivered because it was arrested by this court’s order dated 12th November 2024. Before the prosecution called its witnesses in E869 of 2024, the applicant told the court that his lawyer, one Lewis had another case in Nakuru and asked that the case be heard in January or late February. The prosecution opposed the application and stated that the date had been taken by consent and the applicant had not told them of any case or advocate and there was no evidence of an advocate being on record for him. The applicant’s co-accused also opposed the application for adjournment. The court ruled that there was no evidence of any lawyer being on record for the applicant since the matter began and that the applicant had not supplied evidence of his lawyer being in Nakuru. The court stated further that the applicant was free to make any application. The matter then proceeded with six witnesses and again the applicant did not cross-examine any of them unlike his co-accused persons. The prosecution closed its case and ruling was reserved for 26-11-2024. The ruling was not delivered on the slated date as the trial court halted it on request of the applicant’s counsel in view of pending revision application. The applications which resulted to halting of the two rulings as stated above are the subject of this ruling. Revision application number E137 of 2024 relates to case number E868 of 2024 while revision number E138 of 2024 relates to case number E869 of 2024. Both are dated 6th November 2024 and seek similar orders save for the case numbers as follows; 1. THAT this application be certified urgent, the same be heard ex-parte and service of the same be dispensed with in the first instance. 2. THAT pending hearing and determination of this application, this Honourable Court be pleased to arrest the ruling slated for delivery on 26/11/2024 in Kithimani Magistrate’s Court Criminal case no. 868/869 of 2024. 3. THAT this Honourable Court be pleased to call for the record in Kithimani Magistrate’s Criminal case no. 868/869 of 2024 for purposes of review/or revision. 4. THAT the Honourable Court be pleased to set aside the proceedings of 28/10/2024 in the said Kithimani Magistrate’s Criminal case no. 868/869 of 2024*.* 5. THAT in the alternative this Honourable court be pleased to order that the prosecution witnesses in Kithimani Magistrate’s Criminal case no. 868/869 of 2024 be recalled for purposes of being cross examined by the applicant’s advocate. 6. THAT this Honourable Court do issue any further orders as it deems fit and necessary in the matter. Both applications are supported by affidavits of the applicant dated 6th November 2024 in which he depones that the hearing dates of 28-10-2024 were fixed in absence of his advocate although the advocate had instructed him to request for a date in December when his diary was favourable. He alleges that his advocate was on 28-10-2024 engaged in Kajiado High Court succession cause number E009 of 2020 and Milimani commercial courts MELC case number 26 of 2021 which had been fixed prior to the Kithimani ones. The applicant has exhibited cause lists for the two courts. The applicant avers further that his request for adjournment was declined with the matters proceeding to full hearing which denied him the benefit of having prosecution witnesses cross-examined by his advocate. He alleges that this denied him the right to a fair hearing. The respondent did not file a replying affidavit in revision number E137 of 2024 but filed one in E138 of 2024 sworn by Agatha Abang on 7th day of March 2025. Agatha stated that the applicant fully participated in the proceedings at the trial court and cross-examined witnesses and therefore his right to a fair hearing was not violated. She argued that the trial court did not err in having the matter proceed and closing the prosecution’s case. I have read and considered the proceedings of the trial court, the documents filed by the parties as well as the submissions of the applicant and the respondent dated 22nd September 2025 and 12th November 2025 respectively. Although the applicant’s submissions make reference to case number E868 alone, I will consider the merits of both applications. As noted elsewhere above, in E868 of 2024 the proceedings do not show the applicant making any application for adjournment and there no ruling to that effect was made on 28-10-2024. I therefore do not find it appropriate for the applicant to seek to set aside the proceedings on account of him having been denied an adjournment. The sole ground for faulting the trial court is that it denied the applicant his constitutional rights to choose, and be represented by, an advocate and to challenge evidence. It is noted and acknowledged that the applicant asked the court for another date in case number E869 of 2024 as his advocate was in Nakuru. The trial court ruled that there was no evidence that the applicant’s advocate was engaged in Nakuru or that the applicant had an advocate. It is true as the trial court observed, that the applicant had not previously been represented but that did not mean that he had no right or had abandoned his right to be represented by an advocate on 28-10-2024 or any other date thereafter. The right to choose an advocate runs throughout the proceedings and even after. However, a party who chooses to be represented by an advocate must adhere to both substantive and procedural laws in bringing one on record. When case number E869 of 2024 came for hearing on 8-10-2024, the prosecution applied for an adjournment for reasons that the investigating officer had forgotten exhibits. All the accused persons including the applicant had no objection to the application. There is no mention of the applicant’s advocate as having sent him to fix a suitable date in December contrary to what the applicant depones before this court. On 28-10-2024, the applicant told the court that his lawyer, Lewis was in Nakuru but in this court, he has deponed that his lawyer was in Kajiado and Milimani. A party who seeks to have discretion of the court in his favour must be truthful and sincere. The trial court was right in observing that there was no disclosure of which case the applicant’s advocate was engaged in. Before me, the applicant has annexed two cause lists and there is nothing therein that shows involvement of Mr. Lewis Murriithi Advocate in any of the two matters. Even if there was such evidence, it was not presented before the trial court and in my view cannot be introduced in an application for review. No one can tell whether the trial court would have denied the adjournment if it had been given the information. The jurisdiction of the High Court on revision is not meant to entertain a review based on matters or facts which were not presented to subordinate court but it is purely a supervisory role in checking propriety, legality and correctness of decision, such that any material which was not subject or part of the record of the subordinate court should not be a subject for consideration. Revision is not an avenue for micromanaging the subordinate courts in exercise of their judicial functions or on how they should conduct their cases unless such conduct goes outside the framework of the law and procedure. In O***kemwa v Republic [2025] KEHC 9770 (KLR),*** it was held that; *‘It is trite law that the revisionary power of the High Court is not meant to be invoked to micro-manage the subordinate Courts. In respect to this caution, in the same case of*[*Joseph Nduvi Mbuvi v Republic*](https://kenyalaw.org/akn/ke/judgment/kehc/2019/9895)*(supra), Odunga J stated further as follows:* *“It is, however my view that the jurisdiction should not be invoked so as to micro-manage the Lower Courts in the conduct and management of their proceedings.…………..”* I do not think that denial or grant of an adjournment is a matter that the High Court should monitor. The subordinate courts should be let free to manage their courts, matters and diaries without undue clogging with supervisory eyes of the High Court. Having said the above, I would wish to mention that, it is in my view unprofessional for advocates to send their clients to address the court on their behalf. A client should not be seen to have instructions to hold brief for their advocate. Whereas there is nothing wrong with an accused person or a party to the suit making an application for adjournment in absence of the counsel, it is professionally unacceptable and, in my view, disrespectful for a counsel to relay application for adjournment or any other application through their clients in the manner the applicant seems to suggest to have done. While declining to grant the adjournment, the court on 28-10-2024 stated that the applicant was at liberty to make any application. I do believe that such liberty extended to the applicant’s advocate asking the trial court to recall prosecution witnesses for cross-examination. I therefore hold that the applications before me should have first been made before the trial court for consideration before being escalated to this court if at all. Following what I have stated above, I find it difficult to invalidate proceedings which were taken by the trial court in discharge of its constitutional and statutory duties on account of failure by the applicant and his advocate to act diligently and professionally. I see no impropriety, incorrectness, illegality or unconstitutionality in the decision of the court in respect of the proceeding of 28-10-2024. The inevitable conclusion is that these applications are not meritorious and are hereby dismissed. The two lower court’s files shall be returned to the trial court for further directions and proceedings as the court shall deem appropriate. Dated signed and delivered at Nairobi this **29th** day of **July** 2026. **B.M. MUSYOKI** **JUDGE OF THE HIGH COURT.** Ruling delivered in presence of the counsel for the applicant and in absence of the respondent