[2023] KEHC 23788 (KLR)

Ngatia v Director of Public Prosecution (Miscellaneous Criminal Application 142 of 2019) [2023] KEHC 23788 (KLR) (19 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23788 (KLR)

Republic of Kenya

In the High Court at Nakuru

Miscellaneous Criminal Application 142 of 2019

HM Nyaga, J

October 19, 2023

Between

Solomon Ngatia

Petitioner

and

Director Of Public Prosecution

Respondent

Ruling

1. The Application before me is a notice of motion dated 10th February, 2023 filed by the Applicant on 20th February, 2023 wherein he seeks for redress of violation of his right to fair hearing and orders of appropriate relief.

2. The Application is premised on grounds set out thereto and supported by an affidavit of the Applicant sworn on the even date.

3. It is the Applicant’s case that he was convicted of the offence of defilement in Nakuru Criminal Case No 230 of 2013 and sentenced to serve 30 years’ imprisonment on 19th October, 2015.

4. He avers that during defence hearing he applied for an adjournment to enable him call his witness but the trial court disallowed it and issued a date of judgement and that his attempts to have the said violation reviewed by the High Court and Court of Appeal vide HCCRA No 213 of 2015 & COA No 46 of 2018 respectively did not bear any fruit as his appeal was dismissed.

5. He avers that his continued incarceration borne out of his violation of his right to fair trial has and continues to cause irreparable damage to him and his family both economically and socially.

6. He contends that he was not heard on his defence contrary to the maxim audi alteram partem' and that he was subjected to discrimination contrary to Article 27 of the Constitution since the prosecution was granted three adjournments to enable it avail its witness while he was denied a chance to avail his defence witness.

7. He urges this court to grant him an appropriate relief pursuant to Article 23(3) of the Constitution and states that this court under Article 165(3) (b) of the Constitution has jurisdiction to hear and determine this matter.

8. The Respondent did not file any response to the Applicant’s Application.

9. The Application was canvassed through written submissions.

Applicant’s Submissions 10. The Applicant filed his submissions on 11th July, 2023.

11. On jurisdiction, the Applicant submitted that this court has jurisdiction under Article 23 of the Constitution to deal with this matter. The applicant in further buttressing this position cited the case of Protus Buliba Shikuku v Attorney General [2012] eKLR where the court held that;“Article 23 of the current 2010 Constitution as read with Article 165(1) 3(a)(b) (d) (i) (ii) have donated the same mandate without exception it and for this reason of donation of jurisdiction without exception we feel confident that we are properly seized of the petitioner's complaints which arise from an alleged act of omission or commission by the courts of this jurisdiction as laid out in the petition”

12. The Applicant submitted that directions was taken pursuant to Section 211 of the Criminal Procedure Code upon which he informed the trial court that he will give sworn evidence and call one witness. He asserted that denial of an adjournment was against the principles of fair trial as provided under the Constitution and Section 211(2) of the Criminal Procedure Code.

13. The applicant argued that the application for adjournment is an exercise of judicial discretion and the court is expected to take into account the overall conduct in the case and the reasons for adjournment. For this proposition reliance was placed on the case of Savannah Development Company Ltd v Merchantile Company Ltd, CA No 120 of 1992 as cited in the case of Peter M. Kariuki v Attorney General [2014] eKLR; Famous Cycle Agencies Ltd & 4othersv Masukhalal Ramji Karia (1995) Kampala Law Reports 100; Lolwe Agencies Ltd v Midland Emporium Ltd HCCC No 25 of 1998 (Ksm).

14. He contended that the orders sought are equitable and just and urged this court grant the same.

Respondent’s Submissions 15. The Respondent through its state counsel Ms. Murunga submitted orally on 20th July, 2023. She submitted that denial of an adjournment is not a violation of human rights and that for the court to exercise its discretion and allow and application for an adjournment the reasons put forth should be convincing.

16. The state counsel argued that this court and the court of appeal went through the record and concluded that the trial court did not err and there was no violation of the Applicant’s right.

17. She urged the court to dismiss the Application.

Analysis & Determination 18. The issues for determination are;a.Whether this court has jurisdiction to entertain this application. Whether the orders sought by the Applicant are merited.

19. The jurisdictional remit of the High Court is anchored in Article 165(3) of the Constitution which states: -“Subject to clause (5), the High Court shall have-a)Unlimited original jurisdiction in criminal and civil matters;b)Jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened:c)Jurisdiction to hear an appeal from a decision of a tribunal appointed under this Constitution to consider the removal of a person from office, other than a tribunal appointed under Article 144;d)Jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of-i)The question whether any law is inconsistent with or in contravention of this Constitution;ii)The question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution.iii)..e)Any other jurisdiction, original or appellate, conferred on it by legislation.”

20. Further under Article 165(6) of the Constitution it is stated as follows: -“(6)The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.”

21. There is no dispute that the applicant has been to the High Court on appeal from the decision of the trial court. When the appeal was dismissed he appealed to the Court of Appeal. That appeal was also dismissed.

22. The applicant has clothed his petition as a constitutional petition, in an attempt to seek the orders of the court.

23. The Applicant submitted that the trial court violated his rights to fair hearing and equality when it disallowed his Application for adjournment in order to call his witness. He stated that he appealed against the said violation but this court and the Appellate court did not consider the same.

24. I have perused the Applicant’s amended Memorandum of appeal filed on 3rd August, 2016 before this Court. One of the grounds of appeal was the issue raised herein. On ground 7 of the memorandum of appeal the Applicant stated that;“The learned trial magistrate erred in law and in fact by not granting the only one chance sought by the defence for adjournment to necessitate the availing of the intended defence witness who had been caught up with personal matters though willing to come and testify for the defence”.

25. This particular issue was not specifically determined by my Sister Judge Maureen Odero in her judgement delivered on 22nd May, 2018. Nevertheless, she proceeded to dismiss the entire appeal as wanting in merits. It must be presumed that the court considered all the grounds of the appeal in arriving at its decision. If it did not, then the correct avenue was to file a further appeal to the Court of Appeal, which he did. This court, even sitting as constitutional court has no jurisdiction to interrogate the decision of a court of concurrent jurisdiction.

26. It is also clear that the same issue was similarly raised before the Court of Appeal and the court substantially dealt with the same at paragraphs 20 to 28 of its decision. The court stated as follows;20. “The first issue we address is whether the denial of an opportunity to call a witness was prejudicial to the appellant's case. It is the appellant's case that he had indicated to the Court that he had a witness who was not able to attend court but the court declined to grant him an adjournment. It is his case that such denial prejudiced his case by denying him his right to fair trial and to defend himself.23. Whether the trial magistrate properly or improperly declined to grant the appellants' application for adjournment is a matter that goes to question the exercise of judicial discretion. On discretion, it is a settled principle that discretion should be exercised in a judicious and reasonable manner. The court is expected to take into account the party's overall conduct in the case and the sufficiency of the reasons for seeking adjournment. This Court, in Peter M. Kariuki v Attorney General [2014] eKLR dealt at length with the issue of adjournments, stating as follows:“In Savannah Development Company Ltd V Merchantile Company LTD, CA No 120 of 1992, this Court stated that there may be reasons for seeking adjournment of a case set down for hearing on a particular day and that where there are valid reasons to justify granting of an adjournment, the Court always has unfettered discretion to grant the adjournment. The Court further stated that elements to be taken into consideration in an application for adjournment include the adequacy of the reasons given for the application for adjournment; how far, if at all, the other party is likely to be prejudiced by the adjournment; and whether the other party can be suitably compensated by award of costs.The Supreme Court of Uganda, in Famous Cycle Agencies Ltd & Others V Masukhalal Ramji Karia, (1995) Kampala Law Reports 100, was of the same mind when it stated that granting an adjournment to a party is left to the discretion of the court and the discretion is not subject to any definite rules, but should be exercised in a judicial and reasonable manner and upon proper material. Such discretion, the court continued, should be exercised after considering the party's conduct in the case, the opportunity he had of getting ready and the truth and sufficiency of the reasons alleged by him for not being ready.Also in Lolwe Agencies Ltd V Midland Emporium LTD, HCCC NO 25 OF 1998 (KSM), the High Court appropriately stated that, although the granting of adjournment is discretionary, it is like all judicial discretion which should be exercised judicially, and that means that it must be exercised upon reason and principle and not upon caprice or personal opinion.While bearing in mind that whether to grant an adjournment or not is discretionary, the appellate courts are loath to readily question the exercise of discretion by the trial court, nevertheless it must never be forgotten that the right to an adjournment to enable a party to adequately prepare his or her case in a criminal trial is underpinned by no less an instrument than the Constitution. The authorities cited above relate to exercise of discretion to grant or refuse an adjournment in a civil dispute. We are of the opinion that although the same principles are relevant in respect of applications for adjournments of criminal trials, nevertheless because of the constitutional basis of that right and the potential impact on a citizen's liberty, the court is obliged to be more circumspect in rejecting an application for adjournment and to specifically consider whether denial of such a right guaranteed by the Constitution would result in miscarriage of justice."24. In the light of that authority, we hold the view that when a court is asked to grant an adjournment in criminal matters, the following principles can be taken into consideration. The first being the sufficiency of the reason adduced; second, what prejudice, if any, will be visited upon either of parties; third, the previous conduct of the party requesting for adjournment in the case; fourth, the opportunity already available to the party requesting for adjournment to prepare for his case; and fifth, the impact of denial of adjournment on the case of the accused's case. We will deploy this five-pronged test to assess the exercise of discretion by the trial court.25. It is not for us to set aside the trial court's discretion and substitute our own simply because if we had been the trial court, we would have exercised the discretion differently. It is only if the court did not exercise its discretion judiciously, that the appellate court would interfere with the decision arrived at. The exercise of discretion by the trial court is attacked mainly on the ground that the learned magistrate failed to appreciate that in the circumstances of the case, a refusal to grant the adjournment was prejudicial to the appellant and resulted in injustice to him.28. The next question is as to the sufficiency of the reasons advanced for the adjournment. The appellant's request was premised on grounds that his witness had a personal matter to attend to. The trial court was however not convinced and the court pointed out that it could not tell what a "personal matter" was. We too are inclined to pose the same question as the trial court, that is, what was the nature of this personal matter? The answer to this question cannot be found in the record and therefore, it remains unanswered. The end result is that the reason so adduced remains insufficient. We so hold because in our considered view, the appellant did not give the learned trial magistrate material upon which the court could exercise its discretion in favour of granting an adjournment."

27. Therefore, the true position is that the Court of Appeal considered his grievance and concluded that the Appellant did not give the learned trial magistrate material upon which the court could exercise its discretion in favour of granting an adjournment.

28. Therefore, the sole issue raised by the Petitioner in this petition has been fully and substantially addressed by a court of superior jurisdiction. The petitioner cannot now purport to revisit the issue through this petition. Again, this court, even sitting as a constitutional court lacks the jurisdiction to entertain the petition.

29. For the above reason, I find that this application is an abuse of the court process and I proceed to dismiss it in its entirety.

DATED, SIGNED AND DELIVERED AT NAKURU THIS 19TH DAY OF OCTOBER, 2023. H. M. NYAGA,JUDGE.In the presence of;Ms Murunga for stateApplicant present