[2023] KEHC 25698 (KLR)

Nderitu v Republic (Criminal Revision E106 of 2022) [2023] KEHC 25698 (KLR) (Crim) (21 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25698 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Revision E106 of 2022

LN Mutende, J

November 21, 2023

Between

Milcah Wangeci Nderitu

Applicant

and

Republic

Respondent

Ruling

1. Milka Wangeci Nderitu, the Applicant, was charged alongside five other people in Milimani Chief Magistrate’s Court Criminal Case No. 259 of 2014. The applicant faced two (2) Counts of Procuring registration of Identification cards by false pretence contrary to section 320 of the Penal Code. Her co-accused also faced other charges as captured in the charge sheet. At the close of the prosecution’s case the court considered evidence adduced and acquitted the applicant on Count I and II pursuant to section 210 of the Criminal Procedure Code (CPC). Further to that the applicant was also charged on Count III, with the offence of Stealing by a Person employed in Public Service contrary to section 280 of the Penal Code.

2. Through an application dated May 25, 2022 the applicant seeks revision of the Ruling of the court presided over by Honourable Martha Mutuku SPM, so as to be acquitted of the offence captured in Count III.

3. The application is premised on the grounds that the court did not pronounce itself on the 3rd Count and that this was an error on the face of the record. That the issue was brought to the court’s attention but the trial court advised that the only recourse was to file an application for revision before the High Court.

4. The application is supported by an affidavit deposed by the applicant who depones that she realized the trial court’s omission when she was denied her pension benefits on account that she was facing criminal charges. That from the pronouncement in the ruling it is clear that the prosecution did not prove its case and she should be acquitted for that reason.

5. The application was disposed through written submissions. It was urged by the applicant that lack of pronouncement by the court was an error on the face of the ruling which should be corrected. That an appeal cannot be lodged where there is no pronouncement on a Count.

6. The respondent contends that the application for acquittal is premature and that the High court cannot acquit the applicant where the trial court had not convicted hence the prayer is premature. That the file ought to be remitted back to the trial court in order for it to make a pronouncement.

7. I have considered rival arguments. Section 362 of the Criminal Procedure Code inform the court’s statutory jurisdiction as follows: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.

8. Whether the application raises an issue for revision is not contested, the record is also clear that the impugned ruling was silent on Count 3 which form the subject of this revision.

9. Section 210 of the Criminal Procedure Code enact that:If at the close of the evidence in support of the charge, and after hearing such summing up, submission or argument as the prosecutor and the accused person or his advocate may wish to put forward, it appears to the court that a case is not made out against the accused person sufficiently to require him to make a defence, the court shall dismiss the case and shall forthwith acquit him.

10. An acquittal under the provisions of section 210 of the CPC is a verdict that concludes a trial where the court also becomes functus officio.

11. Notably the applicant wrote to the court on June 2, 2022, way after final judgment on the case of the 1st accused who had been placed on his defence had been delivered on November 21, 2019. The court’s response was that it was functus officio meaning that the proceedings before it were finally concluded and any issue arising had to be taken to a superior court.

12. In the case of Raila Odinga & 2others v Independent Electoral & Boundaries Commission & 3 others [2013] eKLR it was stated that:A court is functus when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully concluded, and the court functus, when its judgement or order has been perfected. The purpose of the doctrine is to provide finality. Once proceedings are finally concluded, the court cannot review or alter its decision; any challenge to its ruling or adjudication must be taken to a higher court if that right is available.”

13. Although certain exceptions apply to the rule of functus officio such as where the court still has the right to review and amend its decision or take proceedings in execution, in criminal practice, the rule applies in the strict sense in that once sentence is recorded, the court’s jurisdiction over the matters is extinguished.

14. In the case of Joseph Maburu alias Ayub v Republic [2019] eKLR the court stated that:“Sentencing is a judicial exercise. Once a judge or a judicial officer has pronounced a sentence, he/she becomes functus officio. If the sentence is illegal or inappropriate the only court which can address it is the appellate one. Black’s Law Dictionary Tenth (10th) Edition describes defines sentence as:“The judgement that a court formally pronounces after finding a criminal defendant guilty; the punishment imposed on a criminal wrongdoer.”Remitting a matter to the trial court which had become functus officio after sentencing flies in the face of the doctrine of functus officio. It amounts to asking the trial court to clothe itself with the jurisdiction of an appellate court. This is an illegality.”

15. In the case of Kamundi v R [1973] EA 540, cited in David Maina v Republic [1989] eKLR, the Court of Appeal for East Africa, Justice Sir William Duffus, P) reviewed several authorities on the matter on the question, when does a magistrate’s court become functus officio and held that this can only be when the court disposes of a case by verdict of not guilty or by passing sentence or making some order finally disposing of the case.”

16. In the instant matter, omission by the trial court was so serious and was a breach of public policy. It is expected that the court in its decision must pronounce itself on all issues raised by parties. Such an omission is an injustice as it leaves parties stranded at the seat of justice. In criminal procedure, it is a requirement for each count to be tried and resolved separately. (Also see the case of Hamisi Mungale Burehe v Republic [2015] eKLR).

17. Four (4) years have lapsed since the applicant was acquitted on the other charges and no arrests have been or such interest expressed by the prosecution to revisit the issue.The only damage caused is that the applicant’s record is still tainted and she is unable to carry on with her life as a free person. From her depositions she had been unable to process her pension and this caused her to move the court.

18. The prosecution’s contention that this court cannot acquit as per the prayers before court is merited. This is because this court does not have the power to determine the merit of the case. The issues raised pertaining to the acquittal are best suited for appeal where entire record can be overhauled.

19. The applicant’s argument that this court acquits her is based on the trial court’s decision to acquit her on the other counts. Contrary to that view, the High Court cannot acquit an accused without reassessing the merit of the case. Additionally, mere pronouncement of acquittals on other counts is not a guarantee that the court intended to acquit the applicant on the charge which was not addressed.

20. Statute limits this court’s jurisdiction to correcting illegalities and procedural irregularities which may not include accidental slip that would result into the accused being guilty or not. Some matters that call for the question of merits of the case definitely call for consideration on appeal.

21. Article 165(7) of the Constitution provides as follows:For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.…(Emphasis mine.)

22. What happened may have been an accidental slip or omission that can only be corrected by the trial magistrate. I take into consideration time that has lapsed and the fact of the applicant having sought justice late in time but this is a matter that the trial court must pronounce itself on what was intended.

23. In the result, this file is hereby returned to the trial magistrate to pronounce herself on the stated count.

24. It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS AT NAIROBI, THIS 21ST DAY OF NOVEMBER, 2023. L. N. MUTENDEJUDGEIn The Presence Of:Mr. Maingi for the applicantMr. Mutuma for ODPP