[2022] KEHC 11775 (KLR)

Mburu v Republic (Criminal Revision E015 of 2022) [2022] KEHC 11775 (KLR) (Crim) (13 July 2022) (Ruling)

Neutral citation: [2022] KEHC 11775 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Revision E015 of 2022

LN Mutende, J

July 13, 2022

Between

George Mwai Mburu

Applicant

and

Republic

Respondent

Ruling

1. George Mwai Mburu, the applicant, is charged in Nairobi City Court CMCR No. 669/2019 with the offence of Conspiracy to Defraud Contrary to section 317 of the Penal Code. Particulars of the offence being that on July 25, 2006 in Nairobi County, jointly with others, with an intent to defraud, conspired to defraud the Estate of the late Joseph Riunge Gichuki L.R 57/673 original No. 57/32/171 by falsely pretending to have purchased the parcel from the deceased at an amount of Kenya Shillings Two Hundred and Fifty Thousand (Ksh 250,000/-)

2. The applicant is also charged with three counts of forgery contrary to section 349 of thePenal Code, where it is alleged that he forged the signature of the deceased, signatures and rubberstamp impression of advocate Musyoka Annan on the land conveyance documents, the sale agreement and maps.

3. The applicant approached this court through an application seeking stay of proceedings in Nairobi City Court Criminal Case No. 669/2019; examination of the legality, or propriety of the of the ruling dated January 21, 2022 and setting aside the order which should be substituted with an order expunging evidence of the Forensic document examiner.

4. Facts preceding the application relate to the proceedings of the lower court dated January 21, 2022 where the prosecution called the document examiner to give evidence on the forensic report and findings on signature and rubber stamp verification. The applicant (accused) raised an objection to production of the documents in evidence on grounds that the documents referred to in the report had not been produced by witnesses called by the prosecution.

5. The impugned documents relate to the letter dated September 8, 1994, a letter purportedly written by the deceased to the District Land Registrar, Kiambu, and the land conveyance/sale agreement dated July 25, 2006 being an agreement between the applicant and the deceased.Section 70 and 76 of the Evidence Act, respectively.The applicant’s argument is that the documents/signatures ought to be compared and verified by the court before they can be produced. In this regard the applicant relied onThe document examiner verified signatures on the letter and the conveyance and resolved that the signatures were not from the same person. She also compared the advocate’s rubbers stamp that was on the sale agreement with the advocates actual rubberstamp and concluded that it was not from the same authors.

6. The applicant’s gravamen is that the trial court did not comply with the law and that the evidence of PW5 (Forensic Document Examiner) and documents cannot to be adduced before they are verified by the court. The applicant objected to the production of the Expert’s Report and called upon the court to expunge the entire evidence given by PW5.

7. On its part the prosecution urged that PW5 was an expert witness and that section 70 of the Evidence Act related to lay persons.

8. The trial court considered rival arguments by parties and dismissed the objection, hence, ruled that the witness was only narrating evidence on the documents received from the Investigating Officer. That on findings made on the source and authenticity, this was beyond the witness’ evidence. That calling on the Investigating Officer to produce the documents before presenting them for forensic examination was farfetched and it would be untenable for the Investigating Officer to present documents before forensic analysis, that the court could not also hear a matter that was pending active investigations. The court further held that no prejudice would be suffered by the accused.

9. The applicant has brought this application on the grounds that: The trial court ignored section 70 and 76 of Evidence Act on proof of handwriting and signatures. That the signatures must be admitted by the court and also proved to the court’s satisfaction that the document was made by the person. That the court was not willing to observe the law and erred by making conclusions that were devoid of statute and factual basis. That he stands to suffer grave injustice as the prosecution is predetermined and the objective is to convict him without just and fair trial.

10. The applicant deponed an affidavit in support of the application where he deposed that the admission of documents amounted to denying him a chance to cross examine the witness on veracity of the two documents.

11. The respondent did not file any affidavit in response but submitted orally. It urged that the ruling of the lower court was not made in error and that the application ought to have been brought at the close of the prosecution’s case.That PW5 was an expert witness and he gave evidence on documents allegedly signed by the same individual. That the applicant was trying to control the prosecution’s case, and, that the applicant has not demonstrated prejudice.

12. In a rejoinder, the applicant reiterated that the court misunderstood the objection when it concluded that the court cannot supervise the Director of Criminal Investigations (DCI) work. That there was no justification in breaching the mandatory provisions of section 70 and 76 of the Evidence Act. That the prosecution should have stated the date it intended to produce the documents. That no witness testified pursuant to section 35 of the Evidence Act and PW5 was not acquainted with the deceased’s handwriting. That the prejudice against him is self-evident. In this regard he relied on the case of Silvanus Njuku v R(2015) eKLR.

13. I have considered rival arguments of both parties. From the complaint raised, it is not argued that the applicant was not served with the report or the documents used by the DCI during the forensic examination. The applicant’s case is that none of the witnesses referred to or identified the impugned documents. The applicant further argues that the documents ought to have been produced and verified by the court before the forensic examiner could adduce them in evidence. Therefore, the key issue would be whether the Investigating Officer should testify before the document examiner and which of the two witnesses, should give evidence on the exhibits attached to the report?This court can only interfere with that process where there is prejudice or miscarriage of justice.The prosecution retains exclusive discretion and control over prosecution of criminal cases. This power also includes availing witnesses and adducing evidence which they think is necessary and in whatever chronology that is necessary in the process.

14. According to the applicant, it was erroneous for the court to admit the report and PW5’s evidence on the exhibits used in forensic examination before the Investigating Officer or any witness for that matter has been called to verify their contents. Put it differently, some other witness had to confirm that the signature on the letter and the conveyance used by the DCI belonged to the deceased before the document examiner could be called to testify. It is, however, worth noting that the prosecution had not closed its case. Submissions by the applicant are speculative based on an assumption that no other witness will be called to give further evidence on the letter and the sale agreement.

15. Further, on this point, the lower court record confirms that PW1 referred to the sale agreement dated 25th July, 2006 which was marked as PMFI 4, the witness testified that the deceased /vendor had passed on at the time the agreement was alleged to have been made. PW5’s evidence was limited to her findings on the examination of signatures and the advocate’s rubber stamp. She referred to exhibit memos received from the DCI and other exhibits which had been marked for comparison during the forensic examination. There was no other witness who could testify on the contents of the report. It would also defeat the entire purpose of forensic examination if the court would prevent the document examiner from referring to the documents she worked on in coming up with her conclusion. That would affect the credibility of the report and consequently prejudice the prosecution’s case.

16. The accused has referred to sections 70 and 76 of the Evidence Act(Act). The two provisions of the law relate to proof of signatures, fingerprints and impressions. section 70 of the Act provides that:If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person’s handwriting must be proved to be in his handwriting.Section 76 of Act enacts that:-(1)In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal, admitted or proved to the satisfaction of the court to have been written or made by that person, may be compared by a witness or by the court with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose(2)The court may direct any person present in court to write any words or figures for the purpose of enabling the court to compare the words or figures so written with any words or figures alleged to have been written by such person.(3)This section applies with necessary modifications to finger impressions.

17. The two provisions mainly refer to the court’s power to verify the authenticity of signatures and writings where the authors are not in court.

18. Section 76 of the Act has three scenarios, one is where the court compares the signatures in the documents and the other is where the comparison is made by a witness .The third scenario is where the court may call the author to words and figures for its comparison. The provisions are read in permissive terms and this court cannot dictate how the trial court handles evidence before it. This was well captured in the case of R v David Mwiraria and 6 others [2018] eKLR where the court stated that:“The case is ongoing, and with due respect, this court will not start micro managing the lower court on how to conduct its hearing; what to admit and not admit; what to be cross examined on and what not to be cross examined on. If this court does all that at this point then what will it do when the matter comes on appeal in the event that a party is dissatisfied with the judgment”

19. Section 76 also recognizes that a witness may also compare signatures and seals for verification purpose. PW5 was a document examiner who was summoned as a witness. The author of the documents was deceased. It was impossible for him to take writings and signatures in the presence of the court. In such circumstances even if the accused was persuaded that Section 76 of the Act was mandatory, which was not as it was erroneous, that was not a good ground for objecting to the prosecution’s evidence.

20. The court did not err in law by admitting the document examiner’s evidence on matters relating to both identity and authenticity of signatures and stamp impression. Section 48 provides that:-(1)When the court has to form an opinion upon a point of foreign law, or of science or art, or as to identity or genuineness of handwriting or finger or other impressions, opinions upon that point are admissible if made by persons specially skilled in such foreign law, science or art, or in questions as to identity, or genuineness of handwriting or fingerprint or other impressions.(2)Such persons are called experts.

21. Section 77 also refers to government analyst reports which may be used as evidence in criminal cases by enacting that: -(1)In criminal proceedings a document purporting to be report under the hand of Government analyst, medical practitioner or of any ballistics expert, document examiner or geologist upon any person, matter or thing submitted to him for examination or analysis may be used in evidence.

22. The expert evidence would also assist the trial court make its own findings and determine whether the signatures and the rubber impressions used by the prosecution belonged to the deceased and the advocate. Where the court is not persuaded by the expert report, it has further discretion to make its own findings. The court and the accused will have a right to cross examine PW5 on her conclusions. All this settles the accused’s fear that the court would not have a chance to satisfy itself on the documents tabled in the report.

23. This court’s jurisdiction is limited to determining the legality and/or correctness of the lower court findings. It cannot make any conclusions on the evidence adduced and the nature of exhibits that had been referred to in the report. The applicant’s application is also preemptive considering the fact that a conviction had not been obtained and the prosecution had not lined up all witnesses. The applicant also has a right to recall any witness to disprove the prosecution’s case. This is anchored on section 150 of the Criminal Procedure Code (CPC) which provides that:“A court may, at any stage of a trial or other proceeding under this Code, summon or call any person as a witness, or examine any person in attendance though not summoned as a witness, or recall and re-examine a person already examined, and the court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case:Provided that the prosecutor or the advocate for the prosecution or the defendant or his advocate shall have the right to cross-examine any such person, and the court shall adjourn the case for such time (if any) as it thinks necessary to enable the cross-examination to be adequately prepared if, in its opinion, either party may be prejudiced by the calling of that person as a witness.”

24. Further, the fact that the court admitted the evidence and overruled the objection does not mean that the accused would be convicted or that documents would be sneaked in during the trial. In the case of Thomas Patrick Gilbert Cholmondeley v Republic(2008) eKLR Court of Appeal had this to say:“In ordinary criminal trials, there is generally no interlocutory appeals allowed for section 379 (1) of theCriminal Procedure Code allows only appeals by persons who have been convicted of some offence. The appellant has not been convicted of any offence. As far as we understand, the position the basis of an appeal cannot be that an order made in the course of a trial is highly prejudicial to an accused person….the fact that atrial Judge has made an adverse ruling against an accused person in a criminal trial does not and cannot mean that the Judge will inevitably convict. The Judge might well acquit in the end and the adverse ruling, even if it amounted to a breach of fundamental rights, falls by the wayside and causes no harm to such an accused person.”

25. The applicant who desired to obtain orders in form of revision, was obligated to bring himself within the jurisdiction of section 362 of the CPC. He was not supposed to be viewed to be arguing an appeal or urging what would be a good ground for appeal. This scenario was observed in the case ofRepublic v James Kiarie Mutungei [2017] eKLR where the court stated that:“…….. The enactment of section 362 as read with section 364 of the code is substantially part of the provisions of the statute to actualize the provisions of article 165 (6) and (7) of the Constitution.The rationale of the High Court as a revisionary authority can be initiated by an aggrieved party, or suo-moto made by the court itself, call for the record relating to the order passed or proceedings in order to satisfy itself as to the legality, or propriety, correctness of the order in question. The scope of revision therefore is more restrictive in comparison with the appellate jurisdiction which requires the high court to rehear the case and evaluate the evidence in totality by the lower court to come with a decision on the merits. ....As can be seen from this analysis the function of the court under section 362 of the Criminal Procedure Code as read with section 364 is to enable the court to scrutinize and examine the correctness of facts of a subordinate court or tribunal so as to make a finding on legality or propriety. Legality means lawfulness, strict adherence to law, correctness and propriety ordinarily having the same meaning... The interference under Section 362 by this court on revision can only be justified if the impugned decision is grossly erroneous, to justness appropriateness (sic) and suitability to trial...”

26. In George Aladwa Omwera v Republic [2016] eKLR it was held that:“The supervisory powers are obviously intended to enable the High court use them in grave cases where the subordinate tribunal or bodies or officer acts wholly without jurisdiction or excess of it or in violation of the principles of natural justice or refuses to exercise jurisdiction vested in them or there is an apparent error on the face of the record and such action, omission, error or excess has resulted in manifest injustice. However extensive the jurisdiction may be, it seems to us that it is not so wide and large as to enable the High Court to convert itself into a Court of Appeal and examine for itself the correctness of the decision impugned and decide what the proper view on the order be made….”

27. It is a general principle that courts are reluctant to intervene in interlocutory application since the trial process would be delayed and/or the expeditious determination of the trial would be negated. The exception of the rule is where there would be grave injustice calling for the court to exercise its power in favour of the aggrieved party. In the case of Republic v Mark Lloyd Steveson [2016] eKLR the court held at paragraph 11 that:“For clarification, it is important to state the trite position that the High Court will usually exercise its power to review or even exercise an appeal over an interlocutory matter before a magistrate’s court only in exceptional circumstances. While difficult to determine with mathematical precision when the court will use this power, it is only be sparingly used where, in the words of South African authors, Gardiner and Lansdown(6th Ed Vol 1 p 750), “grave injustice might otherwise result or where justice might not by other means be attained.” As the authors correctly write, the Court will generally “hesitate to intervene, especially having regard to the effect of such a procedure upon the continuity of proceedings in the court below.” Hence, the propriety of exercising revision power for interlocutory matters is decided on the facts of each case and with “due regard to the salutary general rule that appeals are not entertained piecemeal.”

28. From the foregoing, this court restrains itself from intervening on revision as the applicant has another remedy, he would be better placed before the appellate court so that the superior court has an opportunity to overhaul the entire record and impinge the court’s discretion. Therefore, the application fails. Accordingly, it is dismissed.

29. It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 13TH DAY OF JULY, 2022. L. N. MUTENDEJUDGEIN THE PRESENCE OF:Mr. Kibiku for ApplicantMs. Adhiambo for the StateCourt Assistant – Mutai