[2022] KEHC 16208 (KLR)

Muriuki (130358) v Kiprotich (Criminal Revision E209 of 2022) [2022] KEHC 16208 (KLR) (Crim) (7 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16208 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Revision E209 of 2022

DO Ogembo, J

December 7, 2022

Between

J. K. Muriuki (130358)

Applicant

and

Jeff Kiprotich

Respondent

Ruling

1. The applicant Major J K Muriuki, has moved this court by way of notice of motion application dated August 10, 2022. The application is brought under sections 362, 364(b), 365 and 366 of theCriminal Procedure Code. the material prayer in the application (at this stage), is prayer number 3 therein, that;“That this court do call for the records of Court Martial Case number 5 of 2021 sitting at Kahawa Barracks between Republic and Major J K Muriuki and do examine the same in order to satisfy itself as to the correctness, legality or propriety of the findings and order recorded and passed and the regularity of the said order and proceeding.”

2. The application is supported by the affidavit of the applicant sworn on August 10, 2022, in which the applicant has deponed that the court martial in the above case has placed him on his own defence, a decision made by members of the court and not the Judge advocate, contrary to section 175 of the Kenya Defence Forces Act. That a decision made by members on a point of law is illegal and irregular. That it is apparent that no prima facie case has been made by the prosecution against the applicant, hence placing the applicant to his defence is meant to get evidence to incriminate him, which is against the law. That this would be prejudicial to the applicant as no offence has been raised against him by all the prosecution witnesses.

3. The counsel for the applicant, Odera Were has filled written submissions based on the same issued raised in the affidavit in support of the application. Counsel relied on the decision of Republicvs Patric Mutisya Mutinda(2022)eKLR, that a decision made by a person not authorized to do it in law is a nullity and is void. And also Republic v Mutubari Mithika Koome (2011)eKLR, in which the court held that a trial will be a nullity it is against public policy and the law.

4. Finally, in analyzing the evidence of each of the prosecution witnesses, counsel submitted that the prosecution failed to prove any prima faciecase against the applicant and that placing the applicant to his own defence would be tantamount to expecting him to offer self incriminating evidence. On the same point, the applicant relied on a number of authorities including Republic v Patrick Mutisya Mutinda (2022)eKLR, Ramanlal Bhatt v Republic (1957)EA 332 and Ronald Nyaga Kiura v Republic (2018)eKLR.

5. The court has been urged to find that no prima faciecase has been established by the prosecution and hence the applicant should be acquitted.

6. The prosecution has opposed this application. Counsel referred to section 160(1) of theKenya Defence Forces Acton the composition of a court martial that;“In the case of any proceedings, the courts martial established under article 169 of the constitutionshall consist ofa.A judge advocate appointed under section 165, who shall be the presiding officer,b.At least 5 other members, appointed by the defence court martial administrator if an officer is being tried, andc.Not less than 3 other members in any other case.

7. That the court martial was properly constituted. Counsel also referred the court to section 175 of the act, that;“In proceedings before a court martial, ruling and directions on questions of law, procedure or practice shall be given by the judge advocate.”And also section 176(1) of the act, that;“Subject to this section, every question to be determined on a trial by a court martial shall be determined by a majority of the votes of the members of the court.”

8. On whether there was enough evidence to have the applicant placed on his defence, it was submitted that this plea is immature as the court martial is yet to make a definite determination.

9. Counsel for the respondent went on that the revisionary jurisdiction of the court should only be exercised where there are glaring acts or omissions but should not be a substitute for appeals. Counsel relied onJames Nthuku Kithinji v Republic(2020)eKLR, wherein the court held;-“While exercising its revisionary jurisdiction, this court is not required to delve into the merits or otherwise of the prosecutions’ case lest it is embarrassed should it be called upon to render a determination should an appeal be filed. the applicant’s submissions requires this court to consider the merit of the prosecution’s case. The court cannot do that at this stage of the proceedings…. It has been held by various courts that it is not mandatory or even advisable for a trial court to give detailed reasons while placing an accused on his defence because to do so may cause embarrassment to the court when making the final determination.”

10. It was submitted that the court martial herein properly exercised its judicial discretion and that this application lacks any merit and should be dismissed.

11. Counsel for the applicant has filed a reply to the respondent’s submissions. The same, while being a rebuttal of the respondent’s submissions, are a re-affirmation of the applicants’ initial submissions.

12. I have considered this application, and the submissions made to it by both the applicant and respondent sides. I have also considered keenly the authorities and the statutory provisions that the 2 sides have relied on.

13. This is an application brought under the revision powers of this court. Without reproducing what section 362 of the Criminal Procedure Code provides (it has been reproduced herein above), it is important to note that the said provision bestows on the applicant the responsibility of proving to this court the incorrectness, illegality and impropriety in the order aggrieved of. It is only upon proof of the above that this court would invoke its revisionary powers in favour of the applicant. Conversely, failure to prove and establish these perimeters as set out in the statute would lead to a collapse of the application for revision.

14. In the present application, it has been entended first that the order of case to answer and placing the applicant to his own defence was made contrary to the provisions of section 175 of the DefenceForces Act, 2012. That the matter, being one on a point of law, ought to have been decided on by the judge advocate, as opposed to the members of the court as happened herein.

15. This court has been referred to relevant provisions of the law regarding this matter. Section 160 of the act, gives directions on the constitution of a court martial as follows:-a.A judge advocate appointed under section 165, who shall be the presiding officer.b.At least 5 other numbers appointed by the defence court-martial administrator if an officer is being tried.c.Not less that 3 other members in any other case.And section 175(1) clearly provides;-“In proceedings before a court martial, ruling and directions on questions of law, procedure or practice shall be given by the judge advocate.”

16. And regarding the decision making of the court martial, section 176(1) provides.“Subject to this section, every question to be determined on a trial by a court martial shall be determined by a majority of the votes of the members of the court.”

17. The above provisions clearly therefore gives directions on the procedure, composition and conduct of the trial before a court martial. That the judge advocate, in conjunction with the members of the court martial collectively sit. That the judge advocate pronounces the decision of the court martial, which decision is determined by way of majority of the members. I do not find any provision in the act, and the court was not shown any, that gives the judge advocate any exclusive right or authority to make sole determination on issues of law that may arise during the hearing.

18. I have considered the proceedings of July 2022 before the court martial. The ruling containing the order was read out by the judge advocate who appropriately restated his duty to communicate the ruling of the members, which he did. This I find to be in consonant with the written provision of the statute.

19. The second ground the applicant has raised in seeking to have finding and orders of the court martial is that the prosecution never produced any or any sufficient evidence upon which the court martial could rely in making a finding that a prima facie case had been established against the applicant sufficient enough to have him be placed on his own defence. The applicant has gone ahead to bring out the evidence of each of the prosecution witnesses.

20. In essence, what the applicant is asking this court to do is to re-evaluate the evidence before the court martial in order to come up with a different finding. These, to me are matters that would properly be handled on appeal should the applicant’s case reach that stage. The court sitting on its revision jurisdiction, cannot delve into the detailed analysis of the evidence presented at the trial. And for good reason. Were the court to go deep in the analysis as urged, only for the matter to proceed on to appeal, the court would be put in an embarrassing situation of re-determining the same issued it had already determined by way of revision. the case of James Nthuku Kithinjii v Republic (2020)eKLR, cited by the Respondent, with which I align myself, spells out the restraint the court must exercise in the exercise of the powers of revision.

21. The court must also deflect any attempts by parties inviting it to micromanage the trials before the subordinate courts and tribunals, also for the very same reason of possible embarrassment in case of appeal. And also no the fact that the subordinate courts and tribunals, are independent institutions which ought to be aided and facilitated to exercise their independence in the manner in which they exercise both their constitutional and statutory mandates.

22. Dealing with the issue of interlocutory applications mid-way through trial, the Court of Appeal in the case of Thomas Patrick Gilbert Cholmondeley v Republic (2008)eKLR, held;“First, the fact that the trial 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 may well acquit in the end and the adverse ruling even if it amounted to a breach of a fundamental right, falls by the wayside and causes no harm to such an accused. The advantage of that cause is that the long delay in the hearing of the charge is avoided and in the event of a conviction, the matter can be raised on appeal once and for all… we think it is against public policy that criminal trials should be held up in this fashion, and it is our hope that lawyers practicing at the criminal bar will appropriately advice their clients so as to avoid unnecessary delays. We should add that in future, if such appeals are brought the court may well order that the hearing of the appeal be stayed pending the conclusion of the trial in the High Court.”

23. The sum total is that this court is not convinced that the applicant has met the threshold as provided for under section 362 as to warrant an order or revision of the orders of the court martial issued on July 21, 2022. I therefore find no merit in the applicant’s application dated August 10, 2022. I dismiss the same wholly orders accordingly

HON. D. O. OGEMBOJUDGE7TH DECEMBER, 2022. COURT:Ruling read out in court (on-line) in presence of Mrs. Omondi holding brief for Mr. Were for the applicant and Ms. Chege for the Respondent.HON. D. O. OGEMBOJUDGE7TH DECEMBER, 2022. Ms. Omondi:We seek leave of court to appeal. Also copies of the ruling.Ms. Chege:We leave it to court.Court:Leave granted. Certified copies of the proceedings and ruling to be supplied to the parties as prayed.