[2022] KEHC 13146 (KLR)

Njaramba v Prosecutions (Criminal Revision E048 of 2022) [2022] KEHC 13146 (KLR) (21 July 2022) (Ruling)

Neutral citation: [2022] KEHC 13146 (KLR)

Republic of Kenya

In the High Court at Mombasa

Criminal Revision E048 of 2022

A. Ong’injo, J

July 21, 2022

Between

Anthony Njaramba

Applicant

and

Director of Public Prosecutions

Respondent

Ruling

1. The Applicant by a Notice of Motion dated March 9, 2022 pursuant to Article 10(b) and (c), 23(b),25(c),27(1),50(1),2(a), (b), (c) of the Constitution of Kenya 2010 and section 362, 364 and 367 of the Criminal Procedure Codesought that this Court stays the proceedings of Mombasa Chief Magistrate Court of Criminal Case E881 of 2021 Republic Vs Anthony Njaramba & Mombasa Water Supply and Sanitation Company Ltd. Pending hearing and determination of this application

2. The Applicant also sought that this Court calls for and examines the record and regularity of proceedings in Criminal Case E881 of 2021 Republic Vs Anthony Njaramba & Mombasa Water Supply and Sanitation Company Ltd. Pending hearing and determination of this application and make an order and declaration to the effect that sustaining of criminal proceedings against the Applicant violates his right to fair hearing, equality before the law and is an abuse of the legal process.

3. The Applicant further sought that the Court issues an order of certiorari and prohibition quashing the decision to charge the Applicant and prohibit any further charge against him related to the particulars of the offence in criminal case number E881 of 2021. He also sought for costs of the application.

4. The application is supported by the grounds on its face and affidavit of Antony Njaramba sworn on March 9, 2022. The Applicant depones that he left the position of Director of the 2nd Accused on July 29, 2021 and is no longer answerable to the acts of commission and omission of his co accused and that the offence in Criminal case E881 of 2021 is statutory in nature and requires compliance and remedy by the 2nd Accused through company policies and not himself in his personal capacity.

5. Applicant avers he is no longer a superior officer of the co-accused company and preference and sustenance of the criminal proceedings against him in his personal capacity is irrational, legally untenable, lacks legal and factual justification and is an abuse of the legal process.

6. The Application was opposed vide grounds of opposition dated March 30, 2022 and replying affidavit sworn by Vivian Kambaga on May 26, 2022 in which the affidavit of Andre Wakaba the investigating officer was annexed. PC Andrew Wakaba in his affidavit sworn on December 9, 2021, opposed the application by Applicant to be discharged because the offence was committed during his tenure and he failed to comply with lawful order and discharging affluent without valid affluent discharge licence. PC Wakaba contended that Applicant was found culpable of offences committed during his tenure and the current Managing Director cannot answer to charges committed by Applicant and substitution of charges for new directors will constitute a miscarriage of justice and misrepresentation of facts.

7. Directions were taken that this application be canvassed by way of written submissions but none were filed.

ANALYSIS AND DETERMINATION 8. This Court is called to determine application for revision based on the grounds of application and supporting affidavit and annexures thereto as well as grounds of opposition and replying affidavit filed by Respondent.

9. The Application is premised upon Articles 10(b) and (c), 20(3b),25(c),27(1),50(1),2(a), (b), (c) of the Constitution of Kenya 2010 and section 362, 364 and 367 of the criminal procedure code.

10. Article 10 provides thus;-‘‘(1) The national values and principles of governance in this Article bind all State organs, State officers, public officers and all persons whenever any of them––(a) applies or interprets this Constitution;(b) enacts, applies or interprets any law; or(c) makes or implements public policy decisions.’’

11. Article 20(3)(b) provides thus; -‘‘In applying a provision of the Bill of Rights, a court shall—b) adopt the interpretation that most favors the enforcement of a right or fundamental freedom.’’

12. Article 25(c) provides thus; -‘Despite any other provision in this Constitution, the following rights and fundamental freedoms shall not be limited-C) the right to a fair trial.

13. Article 27(1) provides thus –‘Every person is equal before the law and has the right to equal protection and equal benefit of the law.’

14. Article 50 provides thus-1Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.2Every accused person has the right to a fair trial, which includes the right-to be presumed innocent until the contrary is proved; (b) to be informed of the charge, with sufficient detail to answer it; (c) to have adequate time and facilities to prepare a defence;

15. Section 362 provides thus; -‘‘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.’’

16. Section 364 of the Criminal Procedure Code provides; -‘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.’’

17. Section 367 provides thus; -‘High Court order to be certified to lower court When a case is revised by the High Court it shall certify its decision or order to the court by which the sentence or order so revised was recorded or passed, and the court to which the decision or order is so certified shall thereupon make such orders as are conformable to the decision so certified, and, if necessary, the record shall be amended in accordance therewith.’

18. The Applicant herein has not demonstrated how his rights under the above articles of the Constitution have been infringed or violated. The Applicant, has also not provided any evidence to show that the proceedings of the subordinate court are incorrect; illegal or marred with impropriety or that there are irregular so as to warrant orders of revision by this Court. The Applicant was not unfairly charged as indeed, from the annexures to his affidavit there was communication between him and NEEMA Concerning the breach of provisions of the Environmental Management and Coordination Act by the 2nd Accused in the lower Court during the Applicant’s tenure as director. The Applicant was also charged while still a director of the 2nd Accused and criminal liability being personal cannot be transferred to the new director.

19. The Penal Code in section 23 provides as follows: Where an offence is committed by any company or other body corporate, or by any society, association or body of persons, every person charged with, or concerned or acting in, the control or management of the affairs or activities of such company, body corporate, society, association or body of persons shall be guilty of that offence and liable to be punished accordingly, unless it is proved by such person that, through no act or omission on his part, he was not aware that the offence was being or was intended or about to be committed, or that he took all reasonable steps to prevent its commission.

20. In Clay City Developers Limited v Chief Magistrate’s Court at Nairobi & 2 others [2014] eKLR it was held by Odunga .J as follows ‘It is therefore clear that where a person charged with or concerned or acting in, the control or management of the affairs or activities of a company proves that through no act or omission on his part, he was not aware that the offence was being or was intended or about to be committed, or that he took all reasonable steps to prevent its commission, he will not be guilty of an offence committed by the company and shall not be liable to be punished thereof.’’

21. In light of the above legal provisions and authority the Applicant cannot therefore claim that because he has since left the company he should not be tried unless he can prove that the offence was not committed by an act or omission on his part or that he was not aware that the offence was being committed or that he took all reasonable steps to prevent its commission. This can only be done in the trial court.

22. In the circumstances this Court finds that the Applicant has not satisfied the grounds upon which an order of revision can be granted. The application is therefore dismissed with no orders as to costs.

DATED, SIGNED AND DELIVERED THROUGH EMAIL THIS 21st DAY OF JULY 2022. HON LADY JUSTICE A ONG’INJOJUDGE