[2021] KEHC 6387 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MISCELLANEOUS CRIMINAL APPLICATION 368OF 2019

NAOMI MUCHAI..................................APPLICANT

VERSUS

REPUBLIC..........................................RESPONDENT

RULING

The applicant herein, NAOMI MUCHAI, filed this application dated 18. 7.2019 on 19. 7.2019. The application cites several provisions of the constitution including Articles 165(6),(7), 157(6)(c)(9),(11), 159(1), 50(1) and section 362 of the Criminal Procedure Code. the substantive prayer in the application, coming up for determination is prayer 3, that:-

“THAT this Honourable court be pleased to revise the orders issued by Hon. Senior Principal Magistrate, Hon. Cheruiyot on 10. 7.2019 (in Chief Magistrate’s Criminal Case No. 1248/2016), pending the hearing and determination of this application.”

This application is supported by the affidavit of the applicant in which she depones that the documents ordered to be admitted in evidence by the learned trial magistrate in the criminal trial before the court below is a Sham and that the admission of the said document would be a violation of the applicant’s right to fail trial. It was prayed that this court do order a stay of the lower court matter and that an order do issue revising the aggrieved order of the learned trial magistrate.

The parties canvassed this application by way of written submissions. For the applicant’s side, it was submitted that the applicant would not have the opportunity to cross-examine the witnesses or test the veracity of the evidence in the statements. That section 33 of the Evidence Act does not give the court discretion on when a deceased persons’ statement can be admitted. Counsel relied on MOA Versus Republic (2020)eKLR, that, an accused person can only be deemed to have gone through a fair trial if he is accorded an opportunity to test the evidence of the prosecution witnesses through cross examination. Also on Republic Versus John Ng’ang’a (2018)eKLR, (Ngugi, J.).

Lastly, that this court is not bound by the decision by the High Court in the succession cause, which itself is subject to appeal.

The interested party, on the other hand, has submitted that the applicant must satisfy the conditions set under section 362 of the Criminal Procedure Code. Counsel relied on the case of Martin Maruti Kituyi Versus Republic, Bungoma, Criminal revision No. 27/2013, Gikonyo J. that;

“That under Article 50(2), appeal and revision are part of fair trial in a criminal proceeding. Both are Constitutional processes for enforcement of legal relief. Except, the court must consider an appeal as a matter of right whilst revision under Article 165(6) and (7) of the Constitution is a matter for discretion of the court….. Therefore, the very nature of revision as a discretionary remedy explains the policy underpinnings of section 364(5) of the Criminal Procedure Code, that revision should not be a substitute for appeal whatsoever or insisted upon by a party who has not filed an appeal where, one has was provided for. Revision primarily serves to put right instances where a finding, sentence, order or proceedings of a lower court are tainted by incorrectness, inappropriety, illegality or irregularity.”

Further, that this question challenging admission of exhibits can only form basis of appeal and not revision. He relied on Njuguna Mwangi and Another Versus Republic (2018)eKLR, where Onyiego J. held in part,

“The consequence of such admission improper or otherwise, would attract a ground of appeal by either party upon conclusion of the case… the admissibility of exhibits objected to should be challenged or raised after conclusion of the trial at the appeal stage, and not at the admission stage or in the middle of a trial.”

Counsel also cited the cases of Thomas Patrick Gilbert Chlomondeley Versus Republic (2008)eKLR, and Frankline Muthoka Mumo Versus Republic (2019)eKLR. In the 2nd case, Odunga J. held;

“If every ruling of the lower court and which went against a party were to be subjected to the revisionary jurisdiction of the court, floodgates would be opened and the court would be inundated with such applications thus making it practically impossible for the lower courts to proceed with any case to its logical conclusion.”

The state respondent, by the time of writing this ruling, had not placed their submissions on record. However, the state had on 18. 11. 2019 filed grounds of opposition in which it stated that the deceased’s mental health cannot be determined by this court as same had been conclusively adjudicated on, and that the deceased’s statement cannot be discounted on the basis of the deceased’s mental impairment as claimed by the applicant.

I have considered the submissions made by all the 3 parties. The applicant has brought this application basically under section 362 of the Criminal Procedure Code. the said section goes;

“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.”

It is imperative that the applicant must convince this court on the incorrectness, illegality or impropriety of the order made by the trial court. While considering an application for revision such as this one, it must always be borne in mind that the original jurisdiction to try the applicant of the charges lie with the trial court i.e the subordinate court. It does not lie with the High Court. It follows therefore that the trial court must be accorded the opportunity to take evidence, hear the case, and accordingly make informed decisions, on the same. And in doing so, the trial court is under a constitutional duty to make its pronouncements independently and without any directions or influence from anybody or person. This is a basic tenet of Judicial independence. Any party aggrieved with the decision of the independent court properly constituted would then be accorded the avenue of appealing to a superior court.

Parties are therefore not expected to invoke the revisionary powers of the High Court on all orders or decisions of the trial court. Decisions that go to the core of the issues for determination before the trial court must remain and properly lie with the trial court, with the aggrieved party having the option of appeal. Were such decisions be subject of revision by the superior court, the superior court could in effect be in firm control of the trial before the lower court. In the process there would be consequential loss of independence of the trial court.

I have considered the decision herein of the trial court that the applicant seeks to have revised by this application. To determine if this is one such order that can be subject of revision as pleaded, it is important to consider the nature of the case and the said order issue. It is noted that the applicant is facing charges relating to stealing contrary to section 268(1) as read with section 275 of the Penal Code (Count I) and forgery contrary to section 345 as ready with section 349 of the Penal Code. The orders of the trial court of 10. 7.2019 relates to production and admissibility of a statement. I am convinced that this a piece of evidence that goes to the very basis of the case. The decision on this issue therefore rightly lie with the trial court. Were this court to get involved in this matter, it would be micro-managing the whole process of trial before the trial court. And if this court gives its mind on this issue of production of documents at this stage, only for an appeal to be filed against the eventual decision, the same issue may again come up as a ground of appeal. This will obviously put this court in an awkward situation. To say the least, it would be absurd.

There are plethora of decisions that support this position, some of which have been cited by the interested party in her submissions. I fully associate with the cases cited including Martin Maruti Kituyi Versus Republic, (Bungoma, Criminal Revision No. 27/2013, Njuguna Mwangi and Another Versus Republic (2018)eKLR, and Frankline Muthoka Mumo Versus Republic (2019)eKLR.

I am equally persuaded by the decision of the Hon, Justice R. Mwongo, in Republic Versus Perry Kusangara and Other HCCR No. 4/2020, that;

“a balance has to be struck in the exercise of Constitutional jurisdiction to ensure there is no appearance that its objective is to micro manage the trial court’s independence in conduct and management of its proceedings and that supervisory jurisdiction should not be used as a shortcut for an appeal where circumstances for appeal clearly pertain and are more appropriate.”

I couldn’t agree more. And none other than the Court of Appeal in it’s binding authority in the case of Thomas Patrick Gilbert Cholmondeley Versus republic, (2008)eKLR, has given directions on the issue of such applications coming up in 5 the middle of trials, when it held;

“First, the fact that a 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 might as well acquit in the end and the adverse ruling, even if it amounted to a breach of fundamental right, falls by the way side and causes nor harm to the accused. The advantage of that course is 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.”

This is the exact position we find ourselves in this matter. The instant case commenced on 12. 8.2016 and was last before the trial court for hearing on 7. 6.2019. this long hiatus has been thanks to this application. It is only fair that this matter be referred back to the trial court so that it may be determined without any further delay.

Having found no merit in the application of the applicant dated 18. 7.2019, I hereby order as follows;

1. The application dated 18. 7.2019 is dismissed.

2. This file is ordered to be returned to the Chief Magistrate’s court, Milimani, for hearing and determination by the trial court. The Deputy Registrar to execute this order immediately.

Orders accordingly.

D. O. OGEMBO

JUDGE

9. 6.2021.

Court:

Ruling read out in open court (on-line) in presence of Ms. Kamau for Mr. Swaka for applicant, Ms. Otieno for Ms. Kamau for the Interested Party and Ms. Kibathi for the Respondent/State.

D. O. OGEMBO

JUDGE

9. 6.2021.

Court:

Matter to be mentioned before the Chief Magistrate on a date agreed. Mention 13. 7.2021.

D. O. OGEMBO

JUDGE

9. 6.2021.