[2011] KEHC 4167 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT ELDORET

MISC. CRIMINAL APPLICATION NO. 54 OF 2009

NAIBEI GERISHOM KISACH ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT

=VERSUS=

REPUBLIC ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT

RULING

The Petitioner, Naibei Gerishom Kisach, has moved this Court by way of a Notice of Motion dated 5/11/2010 for one main order namely that he be acquitted of the offence charged in Eldoret Criminal Case No. 5235 of 2008. The Petitioner alleges that his fundamental rights and freedoms guaranteed under articles 72 and 77 of the Constitution have been contravened because of the following reasons:-

That the Chief Magistrate and the Honourable Attorney General have ignored and disregarded directions made by this Court to proceed with criminal case number 5235/2008 at Eldoret and have terminated the same.

That the Petitioner is being sought by the police in connection with the terminated case and is in danger of being arrested and incarcerated.

That the Petitioner does not expect a fair hearing.

The application is supported by an affidavit sworn by the Petitioner in which he has deposed inter alia as follows:-

That he was charged in Eldoret Criminal Case No. 5235 of 2008 which case was on 30/7/2009 withdrawn under section 87 (a) of the Criminal Procedure Code;

That he was subsequently arrested and charged in Iten Criminal Case No. 608 of 2009 which was terminated in these proceedings and an order made to reinstate Eldoret Criminal Case No. 5235 of 2008 to be heard to its logical conclusion;

That the said case was indeed reinstated and the case for the prosecution closed;

That another Nolle Prosequi was presented and accepted before a ruling was made as to whether there was a case to answer;

That the 2nd termination of the said case ignored the said order of this court and threatens the Petitioner’s liberty hence this petition.

When served, the office of the Attorney General did not respond to the Motion on Notice and when the motion came up before me for hearing on 2/12/2010, Mr. Oluoch, Learned Counsel who represented the Republic did not oppose the same- contending that the 2nd Nolle Prosequi was presented in ignorance of the order of this Court.

The facts leading to this Petition are therefore not in dispute. They are as given in the petitioner’s affidavit already alluded to above. The authorities are united that whereas the Attorney General had power to enter a Nolle Prosequi under section 26(3) (c) of the repealed Constitution and section 82(1) of the Criminal Procedure Code, such power could only be exercised properly in accordance with the law and in good faith and not oppressively, capriciously or against public interest or public good. The authorities are also united that the discretionary power of the Attorney-General to enter the Nolle Prosequi was subject to the Supervisory power of the High Court. See Adan Kayman Wehliye –vrs- Republic [Criminal Case No. 223 of 2003] (UR).

The supervisory role of the court has been elevated to a Constitutional provision under our current Constitution. Article 157 (8) reads as follows:-

“ 157. (8) The Director of Public Prosecutions may notdiscontinue a prosecution without the permission of theCourt.”

What happened in the case? The Petitioner was charged in Eldoret Criminal Case Number 5235 of 2008 and took his plea on 28/10/2008. The trial process commenced and all prosecution witnesses, save the Investigating Officer, testified. When he took the witness stand, he (the Investigating Officer), informed the trial court via a note from the OCPD Keiyo that the case be withdrawn under Section 87(a) of the Criminal Procedure Code. The Court obliged and the Petitioner was immediately arrested and charged in Iten Senior Resident Magistrate’s Court Criminal Case No. 608 of 2009. That triggered these proceedings and on 25/2/2010, Mwilu J. set aside the withdrawal ordered under section 87 (a) of the Criminal Procedure Code and ordered that Eldoret Chief Magistrate’s Court Criminal Case No. 5235 of 2008 proceeds from where it had reached to its logical conclusion. The trial then resumed and the Last Prosecution witness testified on 21/6/2010. However, before submissions on whether there was a case to answer, the prosecutor tendered a Nolle Prosequi under section 82(1) of the Criminal Procedure Code. Despite the Petitioner’s protests, the l earned Chief Magistrate accepted the termination of the case on the basis that he had no choice in the matter. That decision provoked this Notice of Motion.

The Petitioner has invoked articles 50 (2) (e) and 157 R 7 of the current Constitution. The former reads as follows:-

“50 (2) Every accused person has the right to a fair trial, which includes the right –

(e) To have the trial begin and conclude without unreasonable delay;

And article 157 (7) reads as follows:-

“ 157 (7) If the discontinuance of any proceedings underclause (6) © takes place after the close of the prosecution’s case, the defendant shall be acquitted.”

So, does the above provisions of the Constitution apply to the Petitioner’s Notice of Motion, given that the Nolle Prosequi in question was tendered before the Constitution was promulgated? There is the Sixth Schedule article 7 on existing laws which reads as follows:-

“7 (1) All Laws in force immediately before the effective date continue in force and shall be construed with the alterations adaptations, qualifications and exceptions necessary, to bring it into conformity with this Constitution.

(2) If with respect to any particular matter –

(a) a law that was in effect immediately before the effective date assigns responsibility for the matter to a particular State organ, or Public Officer; and

(b) a provision of the Constitution that is in effect assigns responsibility for that matter to a different State Organ or Public Officer.

The provisions of this Constitution prevail to the extent of the conflict”

It is plain therefore that the new Constitutional provisions must apply and if necessary, with alterations, adaptations, qualifications and exceptions as necessary. The prosecution in the matter at hand had rested its case when the Nolle Prosequi was tendered. In accordance with the provisions of article 157 (7) of the Constitution, the Petitioner should have been acquitted. In my view, the Petitioner is entitled to the benefit of the said provisions. Even if the current Constitution had not taken effect, I would still have declared the Nolle Presequi entered in the matter a nullity as, in my view, it undoubtedly prejudiced the petitioner’s right to a fair trial. The Attorney general was exercising his powers to enter the Nolle Prosequi not in good faith but oppressively, capriciously and was probably influenced by irrelevant considerations.

In the end, the Petitioner’s Notice of Motion dated 5/11/2010 is allowed in terms of paragraph 3 thereof.

Order accordingly.

DATED AND DELIVERED AT ELDORET THIS 20TH DAY OF JANUARY 2011.

F. AZANGALALA

JUDGE

Read in the presence of :-

Mr. Nyamwaya for the applicant and

Mr. Chirchir for the Republic/State.

F. AZANGALALA

JUDGE

20/1/2011