[2023] KEHC 23493 (KLR)

Nyabuto v ODPP (Miscellaneous Criminal Application E008 of 2023) [2023] KEHC 23493 (KLR) (11 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23493 (KLR)

Republic of Kenya

In the High Court at Nakuru

Miscellaneous Criminal Application E008 of 2023

SM Mohochi, J

October 11, 2023

Between

Juvinalis Nchore Nyabuto

Applicant

and

ODPP

Respondent

Ruling

1. This is an application by way of Notice of Motion dated 31st March 2023, supported by the Applicant’s sworn Affidavit dated on even dates, pursuant to Sections 206(1), 362, 364, 365 & 367 of the Criminal Procedure Code, Cap 75: Sections 3(a). 4(2)(b), 9(1)(a) & (b) and (2)(a),13, 20(1)(a) of the Victim's Protection Act No. 17 of 2014 and Articles 157(8), (9), (10) & (11), 159(2), 165(6) & (7) of the Constitution of Kenya for criminal revision, contesting the correctness, legality or propriety of the learned trial magistrate's Hon. R. Ombata (SRM)’s Order made on the 23rd day of February, 2023 at Nakuru allowing the withdrawal of the Criminal case by the prosecution under the provisions of section 87(a) of the Criminal Procedure Code CAP 75.

2. This Court on the 5th of April 2023 ordered for the availing of the entire record and proceedings in Nakuru Chief Magistrate’s Court Criminal Case No. 2144 of 2019 R v Johnstone Manoti, with a view of satisfying itself as to the correctness, legality or propriety of the proceedings and the Order of Withdrawal made on the 23rd February 2022.

3. It is noteworthy that the Application is being made by the complainant in the trial court, who craves for the following explicit reliefs from this court;i.That the court in exercising its revisionary powers under sections 362 and 364 of the Criminal Procedure Code, do revise the order of withdrawal in Nakuru Criminal Case No. 2144 of 2019 R v Johnstone Manoti on 23rd February, 2022 with a view to satisfying itself as to the correctness, legality, and/or propriety of the said withdrawal of the case.ii.That the court be pleased to review, vary, quash and/or set aside the order of withdrawal in Nakuru Criminal Case No. 2144 of 2019 R v Johnstone Manoti on 23rd February, 2022 by Hon. R Ombata (SRM).iii.That this court does declare that the conduct of the accused of the accused, Johnstone Manoti, has made it impossible to conduct trial in his presence, and that the State, through the Respondent herein, be allowed to proceed with the case in the absence of the accused, and he be bound by the decision reached after the trial.iv.That the court be pleased to refer the matter back to the trial court for further directions.

4. The application is premised on the following grounds;a.Section 20(1)(a) of the Victim's Protection Act No. 17 of 2014 gives the Applicant herein, as the Victim, a right to submit any information for consideration to the police or prosecution on a decision whether or not to lay a charge, or to appeal or withdrawal. This right was denied to the Applicant.b.The criminal suit, Nakuru Criminal Case No. 2144 of 2019 R v Johnstone Manoti was withdrawn on 23rd February 2022 under Section 87(a) of the Criminal Procedure Code without the Applicant herein, as the victim, being given an opportunity to be heard an to respond before the decision to withdraw the suit, which directly affected him, was taken by the Respondent.c.The Ruling delivered by Hon. R Ombata (SRM) was not formerly written down and there were no reasons given for the said withdrawal of Nakuru Criminal Case No. 2144 of 2019 R v Johnstone Manoti.d.Although the Applicant herein has an advocate on record, neither the Applicant nor the Advocate was informed of the 23rd February 2022 date when the decision to withdraw the criminal suit was made, and thereby violating the Applicant's right to be present at their trial either in person or through a representative of their choice.e.It's been more than one year since the criminal suit, Nakuru Criminal-Case No. 2144 of 2019 R v Johnstone Manoti, was withdrawn and the Applicant has not been in a position to establish the status of the warrants of arrest which had been issued against the accused.f.The accused has never been apprehended despite an active warrant of arrest and the Investigating Officer has failed on several occasions to update on the progress of execution of the said warrants, despite summons being issued by the court on various occasions.g.In the absence of the mechanisms to ensure that execution of the warrants of arrest, and the accused still remaining criminal suit is unnecessarily being subjected to unnecessary delays which fly in the face of the Applicant's right, as a victim, to have the trial begin and conclude with unreasonable delay.h.The application has been made bona fide and in the interest of justice.

5. In his Supporting Affidavit dated 31st March 2023 the Applicant avers that; On the 14th of July 2019 the accused, Johnstone Manoti, was arrested and subsequently charged on the 15th of July 2019 with the offence of causing actual bodily harm contrary to section 251 of the Penal Code.a.The accused pleaded “not guilty” and was admitted and released on a cash bail of Kshs. 10,000, the matter was fixed for mention for 31st July 2019 for pretrial purposes on a date the hearing date was fixed for 23rd October, 2019, where the accused was present and represented by counsel.b.The Prosecution was unprepared to proceed with the hearing and the matter was adjourned to the 4th December 2019 with the prosecution seeking for more time to prepare for hearing.c.On 4th December 2019 the accused, together with his counsel, were present in court but the matter was adjourned after the court announced that it was on transfer, and directed that the matter be mentioned 29th January 2020 before the incoming magistrate.d.The matter was mentioned on 29th January, 2020, directions were issued to furnish accused with witness statements.e.On 4th March 2020, the court scheduled the matter for hearing and further the matter was fixed to be heard on 6th May 2020. There's however no indication, from the court record, whether the accused was present, either in person or through counsel, in court or not on this day.f.That the court failed to sit on 6th May, 2020, and on 12th August 2020 the matter was mentioned and the accused was absent and Summons were subsequently issued against the accused person. That the record does not indicate whether counsel who was previously acting for the accused was also present. The matter was subsequently deferred to 9th December 2020 for mention to confirm attendance of the accused.g.That he became very anxious about the proceedings and consequently secured the services of the firm of Odundo Odhiambo & Co. Advocates to watch brief on his behalf when the matter came up for mention on 9th December, 2020, the accused person remained absent, and the prosecution's prayer to have summons against the accused person extended was granted by court. The matter was subsequently deferred to be mentioned on 17th February, 2021. On this day the court did not sit and another day was given for 5th March 2021. h.On the 5th March 2021 the accused was still not present and warrants of arrest were promptly issued at the request of the prosecution. The matter was further mentioned on 26th May, 2021 to confirm status of execution of the Warrants of Arrest.i.That on 26th May 2021, the accused person still remained absent and the Investigating Officer never appeared in court to confirm the progress he had made in executing the Warrants, a further mention date of 16th September 2021 was scheduled when the court did not sit and a mention date of 14th October 2021 was given, and Warrants of Arrest extended.j.The matter was mentioned on 9th December 2021, the accused person was absent, the prosecution informed court that, efforts to effect the Warrants of Arrest had been futile since the Investigating Officer who had initially been assigned to the case had been transferred and a new one was yet to be assigned. Counsel further made an application for cash bail to be forfeited to the state. The court directed that the matter would be placed before court upon arrest of the accused person. No date was given in court.k.That recently a perusal of the court file revealed that the matter had been placed in court on 23rd February 2022 when the prosecution made an oral application for the suit to be withdrawn under Section 87(a) of the Criminal Procedure Code, Cap 75. The Court allowed the Application.l.That neither himself nor his counsel on record had been informed of this court date and only became aware of it upon perusal of the court file.

6. On the 24th July 2023 the matter came up in court for mention for directions where the Applicant confirmed filing his written submissions the same morning, while the Respondent indicated they shall not be responding to the Application of filing any written submissions. The Respondent elected to leave the Application to the Court for review.

Applicants Submissions 7. The Applicant submitted that, victims are no longer at the periphery of the criminal justice system. They are no longer spectators. As such, they have rights, which, in accordance with Article 50(9) of the Constitution of Kenya, are protected and provided for in the Victim Protection Act No. 14 of 2014 (hereafter referred to as "VPA'). Accordingly, victims play an active role in the criminal justice process and should therefore be involved in the trial.

8. That in the present case, the Applicant had been involved in the case, to the extent that he sought legal representation. He attended court and was keen on following up on the matter. However, the withdrawal of Nakuru Criminal Case No. 2144 of 2019 Republic v Johnstone Manoti was done by the Prosecution despite the obligation of the court to permit the victim's views and concerns to be presented and considered at stages of the proceedings having not been dispensed with. We are therefore led to question whether or not the withdrawal was correct, legal and/or proper before the law.

9. The Applicant submitted that, they are also faced with the question as to whether there exist alternatives to withdrawal under Section 87(a) of the CPC, in a bid to establish whether or not the case could have proceeded despite the absence of the accused person.

10. That the Constitution, under Article 50(2) provides for the right of an accused person to be present during his or her trial. This provides an avenue for the accused person to face his accuser. This provision goes on to state:“(2)Every accused person has the right to a fair trial, which includes the right: - (f) to be present when being tried, unless the conduct of the accused person makes it impossible for the trial to proceed." (Emphasis ours)

11. That Article 50 (2) (f) does not confer an absolute right and the same is limited by the actions of the accused, if his conduct makes it impossible for the trial to proceed. Further the provision under Section 206(1) of the CPC allows for trial to proceed in the absence of the accused. The CPC at Section 206(1) provides that:“If, at the time or place to which the hearing or further hearing is adjourned, the accused person does not appear before the court which made the order of adjournment, the court may, unless the accused person is charged with felony proceed with the hearing or further hearing as if the accused were present”.

12. The Applicant framed two Issues for the consideration by the court namely;a.Whether the Victim/Applicant should have been informed and/or involved by the prosecution before withdrawal of the case? andb.Whether the court is bound by the provision of Section 206(1) of the CPC, since the offence in this case is not a misdemeanor, hence the trial against the accused could have proceeded in his absence?

a) As whether the Victim/Applicant should have been informed and/or involved by the prosecution before withdrawal of the case? 13. The Applicant submitted that, it is the duty of this court to satisfy itself as 'to the correctness, legality, or propriety of any finding. sentence or order recorded or passed', specifically, in this case, the withdrawal of the case against the accused by the prosecution.

14. It is submitted that, the justice system is obligated to provide ways and means where parties and witnesses in all categories of cases can access the requisite information as that is core to access to justice. The VPA, under Sections 4,9 and 20, speaks clearly to the rights of victims and emphasizes that it is the obligation of the state and its agencies to ensure that the Victim is informed of what is going on about their case.

15. The Applicant submitted that, the issue here is about the obligation of the trial court to uphold the rights of a victim at every stage bearing in mind the warning about any prejudice against the accused person.

16. The Applicant submitted that, that in failing to inform the victim on the withdrawal so as to allow the victim to give any information before such withdrawal, the prosecution ousted the victim from his own case thereby relegating. him to the position of a mere spectator. as opposed to a party with constitutionally drawn rights.

17. Reliance was place on the case of Anne Wanja v Republic (2022)) eKLR. the High Court was faced with a similar set of facts where the case was withdrawn under Section 87(a) of the CPC, without the Applicant/Victim being involved and informed, with the reason furnished being the history of absence of the accused persons. The Court noted that the Applicant ought to have been given reasons when the case was terminated since the criminal Charges involved both the accused and the Applicant who was the victim.

18. The Applicant submitted that, they rely on Section 4(2)(b) of the VPA, which, in recognizing the position of the victim, provides that:Subject to subsection (1). a court, administrative authority or person performing functions under this Act shall ensure that(b)every victim is, as far as possible. given an opportunity to be heard and to respond before any decision affecting him or her is taken:"

19. The Applicant submitted that, he was not availed that opportunity to be heard and to respond before the decision to withdraw the case was made. Further. Section 9(1) (a), (b), and 9(2)(a) of the VPA is clear on the rights of the victim in criminal cases and states that:“(1)A victim has a right to(a)be present at their trial either in person or through a representative of their choice:(b)have the trial begin and conclude without unreasonable delay:(2)Where the personal interests of a victim have been affected, the Court shall -(a)permit the victim's views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court."

20. The Applicant contends that, he has been actively involved in the case and even acquired legal representation in the matter. It is unfathomable, therefore, for it to be considered that he may have waived his right to be informed and involved in the matter, such that his involvement in withdrawal was deemed unnecessary.

21. That Section 20 of the VPA speaks as to the right of the victim to submit information and provides that:“A victim has a right to submit any information for consideration to the-(a)police or prosecution on a decision whether or not to lay a charge, or to appeal or withdrawal:"

22. That the above provisions inform the crux of this matter since it is the Applicant submission that, Contrary to the above provisions, he was not involved in the decision to withdraw the matter. Neither was he furnished with reasons for [withdrawal. He only became aware of the withdrawal upon perusal of the court file. This is a violation of the victim's rights.

23. It is the Applicant submission that, Article 157 of the Constitution of Kenya provides for the powers and role of the Director of Public Prosecutions, which shall be exercised with due regard to the interests of the administration of justice. It further provides that the power of the DPP to discontinue a prosecution is tied to the requirement to seek the Consent of court. It states that:(8)The Director of Public Prosecutions may not discontinue a prosecution without the permission of the court.(11)in exercising the powers conferred by this Article, the Director of Public Prosecutions shall have regard to the public interest. the interests of the administration of justice and the need to prevent and avoid abuse of the legal process.

24. In Republic v Enock Wekesa and Michael B. Watah (2010) eKLR Hon. Koome J. (as she then was) observed:“Surely if the case were to be terminated, should the complainant not be given a reason? Should the court that gives the leave to terminate the proceedings be a mere rubberstamp? ls asking questions that will satisfy the court that there is no abuse of the process interference with the powers of the Director of Prosecutions? constitution provides that public interest, the interest of justice and abuse of the legal process be protected, this is the duty of the trial court."

25. The Applicant submit that, the learned magistrate was obligated to ensure that he was aware of the application for the withdrawal and that it was proper for the trial court to demand reasons for the withdrawal and the prosecution to act within the parameters of the Constitution.

26. That no effort was made by the prosecution, to inform the victim of their intention to withdraw the charges, so that the Victim could exercise his right to avail information for the consideration of the court, yet this is an express provision of the VPA. In Anne Wanja v Republic 20221 eKLR, the Court was of the view that:“The Applicant, who was the complainant should have been given reasons when the case was terminated since the criminal charges that were before the learned trial Magistrate, involved both the accused persons and the Applicant who was the victim”.

27. Reliance is placed on the case of Republic v Peter Kibe &7 others [2021l eKLR, the court was keen to note that:“The Victims Protection Act speaks clearly that itis the obligation of the state an agency to ensure that the Victim is informed of what is going on about their case.The victim stopped being a spectator, the silent partner in their own case and became an active participant and party albeit in a constitutionally acceptable limited way. The Victim is not challenging the Prosecution's mandate to prosecute. The victim is simply holding the prosecution and court accountable for failing to adhere to clear provisions of the law. In our Constitutional dispensation, the rights of the victim are no less than those of the accused person. The mandate of the ODPP includes compliance with the law as the powers conferred both by statute and the Constitution must be exercised in adherence to the same Constitution”.

28. That the subordinate court had the duty to uphold the law, and in this case in considering the application by the prosecution the learned magistrate was required to consider the views of the victim before either allowing or disallowing the application" (Emphasis ours).

29. That the withdrawal of the case on the 23rd February, 2022 did not comply with the VPA, and the Constitutional values enshrined under Article 159 and 157(11) of the Constitution and therefore ought to be found to be irregular, incorrect and/or improper and thus should not be upheld.

b) As to whether the court is bound by the provisions of Section 206(1) of the Criminal Procedure Code? 30. The Court in Republic v Galma Abagaro Shano [2017] eKLR, while looking into the case of an accused charged with murder but who absconded trial just before the defence hearing begun, noted that:“Plain reading of Article 50 (2) (f) shows that every accused person has a right to a fair trial which includes right to be present when being tried, unless the conduct of the accused person makes it impossible for the trial to proceed."

31. That careful reading of Section 206(1) of the CPC reveals a distinction between misdemeanors and felonies, such that it only permits the trial to proceed in misdemeanor cases, as opposed to felonies. This is different from the Constitution which does not differentiate between offences. The court in R v, Galma Abagaro (supra) addressed this difference by stating that:“Firstly, I wish to deal with the constitutionality or otherwise of Section 206 (1) of the Criminal Procedure Code. By virtue of Article 2 (1) and (4) of the Constitution, the Constitution is the supreme law of the Republic of Kenya and any law, including customary law, that is inconsistent with then Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid.

32. Plain reading of Article 50 (2) (f) shows that every accused person has a right to a fair trial which includes right to be present when being tried, unless the conduct of the accused person makes it impossible for the trial to proceed. The Article does not qualify the offence facing the accused person, whether felony or misdemeanor. All accused persons before the court enjoy this right.

33. That Section 206 (1) of the Criminal Procedure Code on the other hand differentiates between an Accused person facing a felony and that facing a misdemeanor Where the accused is charged with a felony, subsection (4) states that the court shall issue a warrant for the apprehension of the accused person and cause him to be brought before the court, What happens where, as is the case here, all efforts to track down the accused fails and he cannot be arrested and Presented in court? Do the authorities give up on him and let the matter lie? Will justice be served by taking that action? do not think so. Having critically considered this issue I am persuaded to find, which I hereby do that Section 206(1) of the Criminal Procedure Code is inconsistent with Article 50 (2) (f) of the Constitution in so far as it fails to include all offences be they felonies or misdemeanors. (Emphasis ours).

34. On the second issue, it is the Applicant’s view that, the accused's conduct that may deny him the enjoyments of the right to be presenting court during his trial include situations where for instance the accused person becomes violent or unruly during proceedings to such an extent that it becomes impossible for the court to conduct the proceedings or where he deliberately absents himself or absconds.

35. The Applicant submit that, the right of an accused person to a fair trial which includes the right to be present when being tried is limited when the conduct of the accused person makes it impossible for the trial to proceed, by for instance, which is the case herein, deliberately absconding himself from court.

36. In showing that the accused herein did indeed make it impossible for the trial to proceed, we point to the fact that the accused person took plea and posted bail of Kshs. 10,000. 00 on the same date that a mention was set for pre-trial directions, which was 15th July, 2019. He then attended court faithfully till August 12, 2020. He, however, failed to attend court since 12th August, 2020 to date. Warrants of arrest were promptly issued against the accused after further instances of absentia.

37. The above goes to show that the accused knew of the case in court, took plea, posted bail, acquired the services of an advocate, attended court severally, and was even supplied with statements, leading to the conclusion that his glaring absentia was indeed a choice he made willingly and voluntarily to frustrate the process, hence making it impossible for the case to proceed.

38. In absenting himself from trial, the accused person essentially decided to hold the criminal justice system hostage, thereby defeating the purpose of justice. However, we submit that this ought not to be the case. There ought to be a balance between the various interests in the criminal justice system, including those of the victims, as is the case here.

39. We therefore submit that while withdrawal was indeed an option, the trial could have proceeded in the absence of the accused seeing as his actions constituted a waiver of his right to be present during trial.

40. The Power of High Court to call for records is provided for under Section 362 of the Criminal Procedure Code.“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”.

41. Section 364 of the Criminal Procedure Code provide for the Powers of High Court on revision as follows;(1)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.(c)in proceedings under section 203 or 296(2) of the Panel Code, the Prevention of Terrorism Act, the Narcotic Drugs and Psychotropic Substances (Control) Act, the Prevention of Organized Crimes Act, the Proceeds of Crime and Anti-Money Laundering Act, the Sexual Offences Act and the Counter-Trafficking in Persons Act, where the subordinate court has granted bail to an accused person, and the Director of Public Prosecution has indicated his intention to apply for review of the order of the court, the order of the subordinate court may be stayed for a period not exceeding fourteen days pending the filing of the application for review.(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.

42. In the case of Prosecutor v Stephen Lesinko [2018] eKLR Nyakundi J outlined the principles which will guide a court when examining the issues pertaining to section 362 of the Criminal Procedure Code as follows: -a.Where the decision is grossly erroneous;b.Where there is no compliance with the provisions of the law;c.Where the finding of fact affecting the decision is not based on evidence or it is result of misreading or non-reading of evidence on record; andd.Where the material evidence on the parties is not considered;

43. In the case of Mohamed Feisal& 19 others v Henry Kandie, Chief Inspector of Police, OCS, Ongata Rongai Police Station & 7 others; National Police Service Commission & another (Interested Party) [2018] eKLR Justice Nyakundi R while citing Keroche Industries LtdvKenya Revenue Authority and 5 others [2007] 2 KLR the court held as follows“one of the ingredients of the rule of law is certainty of law. Surely the most focused deprivations of individual interest in life, liberty or property must be accompanied by sufficient procedural safeguards that ensure certainty and regularity of law. This is a vision and a value recognized by our constitution and it’s an important pillar of the rule of law. Enforcing the law and maintaining public order must always be compatible with respect for the human person. Under article 73(a) and (b) of the Constitution its provided that authority assigned to a state officer is a public trust to be exercised in a manner that is consistent with the purposes and objects of the Constitution, demonstrates respect for the people, brings honour to the nation and dignity to the office, promotes public confidence in the integrity of the office and vests in the state office the responsibility to serve the people, rather than the power to rule them”.Further holding that, the yardstick that police officers are meant to achieve in exercising their powers under the National police service Act and the criminal procedure code. To arrest, detain or investigate must be carried out within constitutionally permissible parameters.

44. The Following Provisions of the Constitution are worthy to recall, Articles 3(2), binds every person with the obligation to respect, uphold and defend the Constitution, Article 10, enshrines the national values and principles of governance that 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, Article 232(1) provides the values and principles of public service to include— (a) high standards of professional ethics.

45. The guiding principles on victim participation in a criminal trial and the manner and extent of the participation were established in the case of Joseph Lendrix Waswa v Republic [2020] eKLR to include;a.The applicant must be a direct victim or such victim’s legal representative in the case being tried by the Court;b.The Court should examine each case according to its special nature to determine if participation is appropriate, at the stage participation is applied for;c.The trial Judge must be satisfied that granting the victim participatory rights shall not occasion an undue delay in the proceedings;d.The victim’s presentation should be strictly limited to “the views and concerns” of the victim in the matter granted participation;e.Victim participation must not be prejudicial to or inconsistent with the rights of the accused;f.The trial Judge may allow the victim or his legal representative to pose questions to a witness or expert who is giving evidence before the Court that have not been posed by the prosecutor;g.The Judge has control over the right to ask questions and should ensure that neither the victim nor the accused are not subjected to unsuitable treatment or questions that are irrelevant to the trial;h.The trial Court should ensure that the victim or the victim’s legal representative understands that prosecutorial duties remain solely with the DPP;i.While the victim’s views and concerns may be persuasive; and no doubt in the public interest that they are acknowledged, these views and concerns are not to be equated with the public interest;j.The Court may hold proceedings in camera where necessary to protect the privacy of the victim;k.While the Court has a duty to consider the victim’s views and concerns, the Court has no obligation to follow the victim’s preference of punishment.

46. The Supreme Court equally cautioned in the case of Joseph Lendrix Waswa v Republic [2020] eKLR that, a victim cannot and does not wear the hat of a secondary prosecutor. When victims present their views and concerns in accord with section 9(2) (a) of the VPA, victims are assisting the trial Judge to obtain a clear picture of what happened (to them) and how they suffered, which the Judge may decide to take into account.

47. In the case of I P Veronica Gitahi& Another v Republic (2017) eKLR the Court described and defined the parameters for intervention by victims’ representatives under the VPA as follows:-‘The Act further provides the parameters of the victim’s representative’s participation in the trial. The victim’s views and concerns may be presented in court at any stage of the proceedings as may be determined to be appropriate by the court. Those views and concerns may be presented by the victim himself or herself or by a “legal representative” acting in the victim’s behalf, at the stage of plea-bargaining, bail hearing and sentencing, as far as possible to be heard before any decision affecting him or her is taken; to be accorded legal and social services of his or her own choice, and if the victim is vulnerable, to be given these services at the State’s expense, and to make a victim impact statement at the stage of sentencing. These rights must however not be prejudicial to the rights of the accused person or be inconsistent with a fair and impartial trial. See sections 20 and 21. ’

48. The task at hand was to consider the correctness, legality or propriety of the learned trial magistrate's Hon. R. Ombata (SRM)’s Order made on the 23rd day of February, 2023 at Nakuru Criminal Case No. 2144 of 2019 R v Johnstone Manoti allowing the withdrawal of the Criminal case by the prosecution under the provisions of section 87(a) of the Criminal Procedure Code Cap 75.

49. This court has undertaken a review of the entire proceedings in Nakuru Criminal Case No. 2144 of 2019 R v Johnstone Manoti noting as follows;a.The Accused failed to appear in court on the 12th August 2020, prosecution never sought for warrants of arrest, the court issued summons.b.No Summons were ever extracted, the court extended the summons until 5th March 2021 when the prosecution eventually sought for warrants of arrest;c.The Applicant was admitted on record on the 9th December 2020 when Advocate Odundo was entered as “holding brief for the complainant”;d.Prosecution sought for cash bail forfeiture on the 14th October 2021 and the court issued a forfeiture order. No further mention date was fixed.e.On the 23rd February 2022 the matter came up and State Counsel indicated that warrants of arrest are in force, cash bail had been forfeited and sought for the case to be withdrawn under section 87(a) of the criminal procedure code. No reasons(s) were offered and the court allowed the same.f.The Court did not inquire of the prosecution as to the reason for the withdrawalg.The Court did not inquire of the views of the victim who had been on record in the previous court appearance.

50. I have considered the scanty and willy nilly withdrawal of charges by the prosecution on the 23rd February 2021 without offering the court any reason(s) not to have complied with the law and the Constitution.

51. The Courts decision allowing the withdrawal of the criminal case by the trial court without reference to the victim was in contravention of Sections 20 and 21 of the Victims Protection Act.

52. The Court as a vanguard of the Constitution must always strive to promote and protect it which in this instance was to show sensitivity to the victim, seek his view before making decision(s).

53. The Director of Public prosecution represents the victim and is equally constitutionally bound to protect and promote the same. The prosecution counsel disregard of a victim of assault is despicable and a low moment.

54. The applicant equally has not show cased on any efforts at engaging the ODPP for information or otherwise.

55. In the upshot this court finds this Application to be of merit and the same is accordingly allowed.

56. The Order made on the 23rd day of February, 2023 at Nakuru Criminal Case No. 2144 of 2019 R v Johnstone Manoti is hereby set-aside.

57. An Order is hereby issued, directing that the matter be placed before the trial magistrate for conducting an appropriate inquiry before deciding as to whether to allow? or disallow? the application for withdrawal.

58. The Applicant/Victim may provide his views and concerns to be taken into consideration by the trial court.

59. It is so ordered.

SIGNED, DATED AND DELIVERED IN OPEN COURT AT NAKURU ON THIS 11TH OCTOBER 2023________________________MOHOCHI S.MJUDGE