[2022] KEHC 16461 (KLR)

Ochieng v Republic (Criminal Revision E091 of 2022) [2022] KEHC 16461 (KLR) (Crim) (14 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16461 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Revision E091 of 2022

LN Mutende, J

December 14, 2022

Between

Richard Odhiambo Ochieng

Applicant

and

Republic

Respondent

Ruling

1. Richard Odhiambo Ochieng, the applicant, approached this court through a letter dated May 12, 2022, authored by Mbugua Mureithi Advocate, pursuant to the provisions of section 362 and 364 of theCriminal Procedure Code(CPC).

2. The genesis of the matter is that the applicant was arraigned before court in Makadara Chief Magistrates’ Court, Criminal Case No 2965 of 2015 and charged with the offence of defilement of a child contrary to section 8(1) as read with section 82 of the Sexual Offences Act (Act); and, in the alternative, he faced the charge of committing an indecent act with a child contrary to section 11(1) of the same Act.

3. He denied the charges, therefore, the matter proceeded to hearing. During trial he was represented by Mbugua Mureithi Advocate. Per the allegation, on April 13, 2022, the trial court proceeded to take evidence of the Investigating officer (PW6) in the absence of counsel despite the applicant’s request for time allocation as counsel was held up on the way to court. That the court also declined to defer cross-examination of the investigating officer and closed the prosecution’s case.

4. The applicant complains that he was not given an opportunity to submit under section 210 of the CPC and the case fixed for ruling. This, according to him deprived him of the right to legal representation, his right to challenge evidence by cross-examination through counsel, and, an opportunity and legal right to make submission under section 210 of the CPC; all of which impact on his fundamental right to a fair trial.

5. The applicant, hence, calls upon this courti.To interrogate whether it was legally proper for the trial court to proceed with the trial of the applicant without counsel at the hearing of the evidence of the investigating officer.ii.Whether it was legally possible for the trial court to close the prosecution’s case without availing the applicant the right to cross-examine the investigating officer.iii.Whether it was legally proper for the trial court to proceed to make a ruling without availing the applicant the opportunity to make submissions under section 210 of the CPC.

6. It is urged that the action of the court impacted on the fundamental right of the applicant to a fair trial hence he seeks the order of this court setting aside the ruling of the trial court dated April 13, 2022, finding that the applicant has a case to answer, so that the investigation officer can be recalled for purposes of being cross-examined by counsel and to submit under section 210 of the CPC.

7. The matter was canvassed through written submissions. It was urged by the applicant that the trial court failed to inquire whether the applicant waived his right to legal representation, that it was erroneous for the court not to accord the applicant the right to legal representation considering the serious offence the applicant is facing.

8. That looking at the history of the matter, all witnesses were cross-examined by counsel, therefore, the learned magistrate was in error for failing to defer the cross-examination. In this regard he referred to the case of Simon Isiayo v Republic (2020) eKLR where Njagi J held that:“(25). Article 25 of the Constitution stipulates that the right to fair trial cannot be limited. (26). In Republic v Karisa Chengo & 2 others(2017) eKLR the Supreme Court considered at length of issues of legal representation and held that: “it is obvious to us that in criminal proceedings legal representation is important...” In the said case the court associated itself with the sentiments of the Court of Appeal decision inThomas Alugha v Republic, criminal Appeal No 2 of 2014 (2016) eKLR where the court stated that an accused person who faced a sentence of life imprisonment deserved to be accorded legal representation…..(29). The appellant herein was not informed of his right to legal representation. He faced a serious charge that carried a sentence of life imprisonment. Such a charge called for legal representation. Failure to inform the appellant of that right and conducting the trial without legal representation caused injustice to him. The appeal should succeed on this ground.”

9. That upon the close of the prosecution’s case, the trial court adjourned the matter to the following day without giving an option for submissions under section 210 of the CPC, a ruling that was promptly delivered. That this was an error that deprived the applicant his basic statutory right to make submissions after the close of the prosecution’s case under section 210 of the CPC.

10. Further, arguing that the applicant is entitled to revision he cited the case of Young Mule v Republic (2020) eKLR, a matter where an applicant was unrepresented and when he retained an advocate and a prayer for recall of prosecution witnesses was declined, on revision, Kemei J ordered recall of the witnesses for further cross-examination.

11. The respondent through Ms Joy Adhiambo, prosecution counsel, urged that section 362 of the CPC is restricted to correctness, legality and propriety of a sentence or order. That the applicant has not demonstrated the illegality, incorrectness and impropriety of the ruling where the applicant was placed on his defence. That the case is still ongoing and final orders have not been made in the matter. That the applicant having not been convicted the application is premature.

12. That the approach is intended to frustrate the trial as it amounts to delay of proceedings. That the High Court should exercise the jurisdiction if satisfied that any finding, sentence or order recorded or passed; or the regularity of the proceedings of the subordinate court did not meet the required standards of correctness, legality and propriety. In this regard she cited the case of Wesley Kiptui Ruto & Another v Republic(2017) eKLR where Miriithi J stated that:“In the absence of manifest injustice or error of law in the ruling, this court cannot fault the trial court for acting in accordance with settled precedent on the undesirability of rendering decisions in case of rejection of submission of a plea of no case to answer. This court does not find, at this stage of the proceedings, that in placing the accused on their defence the trial court committed a miscarriage of justice.”

13. This court has been called upon to invoke its revisionary jurisdiction. The revisionary jurisdiction of the High Court is set out under section 362 of the CPC that 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.

14. Impugned proceedings of the trial court dated April 13, 2022, were as follows:“April 13, 2022Before Hon M Kivuti – SRMProsecution: KaariaCourt clerk: KerageAccused: presentProsecution – Am ready with 1 witnessAccused - Am ready. My advocate has not come to court.PW6 – Female Adult sworn states in EnglishAm No 101256 PC Milka Nyambura of Muthaiga Police Station. I am the Investigating Officer. On September 27, 2015 I reported to work at Dandora Police Station where I was attached then. I noted in the OB that this case had been minuted to me to investigate. The accused was already in the cell. The complainant was brought by her mother to the Police Station and I recorded her statement.She had already been treated at MSF. I issued her with a P3 Form which was filled on September 28, 2015 by Nairobi Area Doctor. I prepared the Police file and charged the accused. The accused was arrested by AP Officers of Dandora Phase 3 on September 26, 2015. The complainant was 7 years old. Before court, is her Immunization Card. The date of birth is July 7, 2007. I produce it as an exhibit- Pexhibit 2. The accused was not known to me prior to this case.Cross Examined by AccusedI have no questionsRe-ExaminedNilProsecution – I close my prosecution case.Court: Ruling April 14, 2022. Hon M Kivuti – SRMApril 13, 2022”

15. It is imperative to look at what transpired during trial in totality. The applicant was represented by counsel from the outset, the September 29, 2015. The matter proceeded before Hon Suter RM. In the course of hearing, there were several adjournments occasioned by both the prosecution, defence and the court when it was not sitting.

16. Following transfer of Hon Suter, SRM, Hon Kivuti took over the matter, and, on the December 9, 2021,directions were given pursuant to section 200(3) of the Criminal Procedure Code (CPC), and, the instant counsel, sought to have the matter heard de novo. By then the only remaining witnesses were the Arresting Officer (AO) and Investigation Officer (IO) Getting the IO to testify was a challenge, but, when the AO turned up to testify, counsel changed his mind and notified the court that he no longer wished the matter to be heard afresh, but, from where it had reached. It is worth noting that this was after summons were issued to the IO who confirmed availability of witnesses who had testified.

17. When the IO the last witness ultimately availed himself to testify, the prosecution had been given a last adjournment by the court. According to article 50(g) of the Constitution, every accused person has a right to a fair trial which include choosing to be represented by an advocate.

18. The applicant herein was not denied the right to legal representation. He retained counsel of his choice who represented him throughout the trial save for April 13, 2022, when his counsel did not attend court. The record is clear that he had notice of the matter, as the last adjournment was granted in his presence.

19. The CPC is silent on the situation where an accused person‘s counsel is absent, as key parties in a criminal trial are the accused and complainant. Section 203 of the CPC mandates the court to hear both parties present. But, in the absence of a party the CPC gives the court the discretion to proceed with the matter after an adjournment. Section 206 of the CPC provides that:(1) 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, and if the complainant does not appear the court may dismiss the charge with or without costs.

20. It therefore behooves the applicant to demonstrate that the court acted illegally and that it was gross that his rights to fair trial were hampered and the action was prejudicial to him.

21. Both the applicant and his counsel were aware of the last adjournment that had been granted by the court in order to fastrack the matter that had been in court for long.

22. On the stated date, counsel did not send a fellow counsel to hold his brief to seek either time allocation or an adjournment on his behalf. The applicant advised court that he was ready to proceed without his counsel which amounted to waiver to be represented then. He was fully aware of his action; hence proceedings were not irregular.

23. After the IO testified, the applicant was granted the right to cross examine the witness and he had no questions to put to him. It can therefore not be interpreted that he was denied the right to cross examine the witness. Having opted to proceed in person indicated that the applicant understood the charges that he faced and the implication of proceeding without counsel.

24. The case having proceeded, there is no suggestion that counsel attempted to move the court for recall of the witness as provided in law. Section 146 of the Evidence Act provides that:(4)The court may in all cases permit a witness to be recalled either for further examination-in-chief or for further cross-examination, and if it does so, the parties have the right of further cross-examination and re-examination respectively.

25. The applicant faults the trial court for depriving him the right to submit after close of the prosecution’s case under section 210 of the CPC which provides thus: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.

26. The provision of the law having been couched in discretionary terms, therefore, available for use at the discretion of the court, it could not be faulted.

27. Section 211 of the CPC provides that:1. At the close of the evidence in support of the charge, and after hearing such summing up, submission or argument as may be put forward, if it appears to the court that a case is made out against the accused person sufficiently to require him to make a defence, the court shall again explain the substance of the charge to the accused, and shall inform him that he has a right to give evidence on oath from the witness box, and that, if he does so, he will be liable to cross-examination, or to make a statement not on oath from the dock, and shall ask him whether he has any witnesses to examine or other evidence to adduce in his defence, and the court shall then hear the accused and his witnesses and other evidence (if any).

28. The applicant did not indicate any intention to file submissions. Throughout submissions herein, other than faulting the trial court, it has not been indicated what action counsel took prior to the ruling on no case to answer being delivered.

29. This is a case where a ruling was delivered after the trial court considered evidence adduced and reached a finding that the case had been made out against the accused person(applicant) sufficiently to require him to defend himself. Therefore, he has not yet been convicted. He was given the opportunity to file submissions that were optional, hence it was not prejudicial to him.

30. This matter was in court from 2015, and, has lasted seven (7) years to date. There is a victim who expects an expeditious fair process. Therefore, this court finds that it has no reason to alter the order of the lower court that was procedural.

31. In the premises, the application is dismissed. The primary file shall be returned to the lower court immediately for further hearing.

32. It is so ordered.

WRITTEN, DATED AND SIGNED BY HON. LADY JUSTICEL. N. MUTENDE, THIS 24TH DAY OF NOVEMBER, 2022. L. N. MUTENDEJUDGERULING DELIVERED BY HON. JUSTICE D.O.OGEMBO ON THIS 14TH DAY OF DECEMBER, 2022. D. O. OGEMBOJUDGE