[2022] KEHC 12305 (KLR)

Mwakireti v Republic (Criminal Revision E050 of 2022) [2022] KEHC 12305 (KLR) (Crim) (6 May 2022) (Ruling)

Neutral citation: [2022] KEHC 12305 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Revision E050 of 2022

GL Nzioka, J

May 6, 2022

Between

Vigilance Mbori Mwakireti

Applicant

and

Republic

Respondent

Ruling

1. By a notice of motion application dated 2nd March 2022, the Applicant is seeking for orders as here below verbatimly reproduced: -a.This Honourable court, be pleased to grant stay of proceeding in the subject matter at Magistrate’s Court pending the hearing and determination by this motion;b.This Honourable court, be pleased to call for and examine the criminal proceedings of the Magistrate’s Court in the matter for purposes of scrutinising the correctness, legality, regularity and proprietary of the decision of the Magistrate’s Court given on 9th March, 2022 in finding that, Accused/Applicant has a case based on medical report, (p3 form) that was irregular and irregular produced.c.This honourable court, be pleased to overturn, reverse and revise the decision of the Magistrate’s Court, made 9th March, 2022, allowing production of the P.3 form by the Investigative Officer, and that subsequently this Honourable Court nullifies, overturns, Accused/Applicant has a case to answer,d.That this Honourable declares that, the prosecution did not adduce enough evidence to place the Accused/Applicant on her defence and give an order for her acquittal.

2. The application is premised on the provisions of; Articles 165 (6) and (7), 50 of the Constitution of Kenya, 2010 and section 362 of the Criminal Procedure Code (cap 75) laws of Kenya, (herein “the Code”), and supported by an affidavit of even date sworn by the applicant.

3. The Applicant avers that, on 9th March, 2022, the Chief Magistrate’s Court rendered the impugned decision, in the matter before the trial court, to the effect that, she has a case to answer, and placed her on her defence. That the subject decision is based on reliance and consideration of the P3 form whose propriety and regularity is the subject of this revision.

4. It is averred that, on the material date, the prosecution informed the trial court that, the medical officer who authored the P3 form was not available to produce the medical report and requested that, the Investigation Officer be allowed to produce it.

5. However, the Defence counsel objected to the production of the report by the Investigation Officer, on the ground that, he could not vouch for the academic qualification of the author, and not being the maker, he could not authenticate the content thereof. Further, he was incapable of confirming the handwriting or the signature of the maker.

6. The prosecution then informed the Court that, Dr Maundu who prepared the report is deceased and that, Dr Kamau who was familiar with his signature has since resigned from employment. However, the trial court rendered the impugned decision and allowed the Investigating Officer to produce the P3 form.

7. The Applicant argues that the decision is erroneous, and contrary to the provisions of sections; 50 and 77 of the Evidence Act, (Cap 80) Laws of Kenya. That, the Court should therefore, “reverse and revise” the Trial Court’s decision and declare that, the prosecution did not adduce enough evidence and “give an order for her acquittal”.

8. However, the Application was opposed by the Respondent on the grounds dated 5th May, 2022 which states that: -a.That the application is without merit as it does not exhibit how the Court’s order is illegal, improper, incorrect and/or the proceedings leading thereto irregular;b.That the application is defective as it seeks to reverse an interlocutory decision of the trial court contrary to well settled principles of law;c.That the Applicant has misapprehended the nature of the evidence, and the threshold required to place an accused person on her defence;d.That the Applicant has not met the threshold for grant of a stay order of proceedings;e.That the application lacks merit, is an abuse of the Court process and should be dismissed.

9. The application was disposed of vide filing of submissions with the Applicant filing submissions dated 18th April, 2022 and the Respondent dated 6th May, 2022. The Applicant argues that, the subject decisions contravenes “constitutional provisions, natural justice principles and the rights of the accused”. Reliance was placed on; Article 50 and the cases of; Rattiram vs State of M.P (12) and Joseph Ndungú Kagiri vs Republic (2016), eKLR.

10. It was further argued that, in criminal cases the burden of proof always rests on the prosecution, and the test of discharge of the burden and establish a prima facie case was discussed in the cases of; R. T. Bhatt vs Republic (1957, E.A 332, and Republic vs Silas Magongo Onzere alias Fredrick Namema (2017) eKLR . The Applicant reiterated that, a document should be produced by the maker and relied on the case of; Republic vs Nelson Otieno Odiro & Another (2014) eKLR, and Republic vs Rono Khalif Ahmed(2015) eKLR

11. However, the Respondent argued that, the admission of the P3 form was not improper as section 77 of the Evidence Act allows the court to presume the genuineness of the form. The Respondent also relied on the case of; Richard Walley vs Republic (2015) eKLR that there is no requirement that the witness who produces the medical report be conversant with the handwriting of the maker. That, the finding of a case to answer is not incorrect, irregular or improper as the court relied on all evidence and not just the P3 form.

12. Further, that this Court cannot reverse the decision of the Trial Court. Reference was made to the case of; Martin Makhakha vs Republic (2019) eKLR where the Court of Appeal held that, a determination that an accused has a case to answer does not always mean that the court will convict. Finally the respondent submitted that supposing the P3 form was improperly admitted, it cannot be a ground to reverse of the trial court decision at an interlocutory stage. The case of; Republic vs Dickson Maina (2020) eKLR was relied on.

13. I have considered the application in the light of the materials and arguments advanced and I find that, first and foremost, the constitutional provisions of; section 165 (6) and (7) of the Constitution relied on, do not confer upon the court the power to determine the issue of contravention of the applicant’s constitutional rights.

14. Be that as it were, the provisions of; section 362 of the Code relied on empowers the Court to call for the lower record and states 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”. (Emphasis added).

15. However, it suffices to note that, section 362 should be read together with section 364 which deals with the power of the court on revision and states that: -1)In the case of a proceeding in a subordinate Court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may—(a)in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 354, 357 and 358, and may enhance the sentence;(b)in the case of any other order other than an order of acquittal, alter or reverse the order.(2)No order under this section shall be made to the prejudice of an accused person unless he has had an opportunity of being heard either personally or by an advocate in his own defence: Provided that this subsection shall not apply to an order made where a subordinate court has failed to pass a sentence which it was required to pass under the written law creating the offence concerned.(3)Where the sentence dealt with under this section has been passed by a subordinate court, the High Court shall not inflict a greater punishment for the offence which in the opinion of the High Court the accused has committed than might have been inflicted by the Court which imposed the sentence.(4)Nothing in this section shall be deemed to authorize the High Court to convert a finding of acquittal into one of conviction.(5)When an appeal lies from a finding, sentence or order, and no appeal is brought, no proceeding by way of revision shall be entertained at the insistence of the party who could have appealed.

16. To revert back to the matter, the law is settled that, the Court will only exercise its revision powers where the impugned order, finding or sentence is: incorrect, irregular or improper. The question that arises is: whether the finding of the trial court that, the applicant has a case to answer is incorrect, irregular or improper. Further, can this Court examine the propriety of the evidence admitted on the basis of the P3 form, through revision? But even more; whether this Court while exercising revisionary power revise the finding of the trial court on the case to answer and find otherwise and/or acquit the Applicant.

17. In that regard, it suffices to note that, the object of revisionary powers of the High Court is to confer upon the High Court a kind of “paternal or supervisory jurisdiction” in order to correct or prevent a miscarriage of justice. Its objective is therefore, to right a patent defect or error of jurisdiction or law.

18. Thus the revisionary jurisdiction will only be invoked where the decision under challenge is; grossly onerous, there is no compliance with the provisions of the law, the finding reordered are based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely.

19. It therefore follows that, in exercise of revision powers, it is not the responsibility of the High Court to take into account the benefit of the evidence, it merely has to see if the provisions of the law have been properly adhered to by the court whose order is the subject of the revision, as held in; Major S.S Khanna vs Brig F.J Dillon 1964 AIR 497, 1964 SCR (4) 409).

20. Further, the revision jurisdiction does not allow the court to interfere and correct errors of facts or of law, when the order is within the jurisdiction of the subordinate court, even if the order is right or wrong, or in accordance with the law or not, unless it exercised its jurisdiction illegally or with material irregularly. Wesley Kiptui Rutto & Another vs Republic [2017] eKLR), Republic vs Everlyne Wamuyu Ngumo (2016) eKLR, Public Prosecutiors vs Muhavi Bi Mond Jani & Another 1996 4 LRC 728, 743-5.

21. Finally, it is not in the province of the High Court to enter into merits of the evidence nor can it admit new evidence. In addition, the exercise of revisionary powers is discretionally and the High Court is not bound to interfere merely because the conditions laid down in the case is satisfied. Therefore, the applicant must not only show that, there is jurisdictional error but also that, the interest of justice calls for interference. As such the High Court may refuse to interfere in revision on equitable grounds that, substantial justice has been done.

22. Be that as it were, the matter before the trial could is not concluded, therefore the impugned decision is on interlocutory order. In that regard, it is noteworthy that, in determining the issues before it, the High Court must be very conscious so that, its decision does not prejudice the proceedings and/or the decision of the trial court.

24. In the instant matter, the admission of the P3 form in evidence and the finding that, the Applicant has a case to answer, go to the merit of the matter and cannot be held to be; incorrect, irregular or improper, to be a subject of revisionary jurisdiction. It can only be a subject of appeal once the Court renders its final decision vide a judgment.

25. It therefore, follows that, the prayer by the Applicant that, this Court revises the aforesaid orders is pre-mature and untenable. Even more so, the prayer that this Court makes an order to acquit the Applicant, is misdirected as this Court has no original jurisdiction in the matter to, evaluate the evidence and arrive at a decision of conviction or acquittal.

22. In that case, I shall not delve into the merits of the arguments by the parties and direct that, the same be advanced in the Trial Court during submissions and/or be banked for appeal if need be.

23. The upshot is that, the application is dismissed and it is ordered that the trial court be returned to the subject court forthwith for further action.

24. It is so ordered.

DATED, DELIVERED AND SIGNED ON THIS 6TH DAY OF MAY 2022. GRACE L. NZIOKAJUDGEIn the presence of:Mr. Kiprotich for the ApplicantMs. Gichuhi for the RespondentEdwin Ombuna - Court Assistant.