[2023] KEHC 19162 (KLR)

Ondieki v Office of the Director of Public Prosecutions (Miscellaneous Criminal Application 19 (E020) of 2023) [2023] KEHC 19162 (KLR) (27 June 2023) (Ruling)

Neutral citation: [2023] KEHC 19162 (KLR)

Republic of Kenya

In the High Court at Kisii

Miscellaneous Criminal Application 19 (E020) of 2023

PN Gichohi, J

June 27, 2023

IN THE MATTER OF REVIEW OF BOND TERMS AND CONDITIONS IN THE MATTER OF STAY OF PROCEEDIDNGS IN MAGISTSRATE’S CRIMINAL CASE NUMBER 966 OF 2022 IN THE MATTER OF AN APPLICATION FOR WITHDRAWAL OF THE COMPLAINTS BY THE COMPLAINANTS PURSUANT TO SECTION 204 OF THE CRIMINAL PROCEDURE CODE IN THE MATTER OF ARTICLE 49 (1) , 159 (2) (d) and 163 (3) (a) (d) (ii) OF THE CONSTITUTION OF KENYA IN THE MATTER OF SECTION 204, 362 AND 364 (1) (b) OF THE CRIMINAL PROCEDURE CODE

Between

Vincent Ondieki

Applicant

and

Office of the Director of Public Prosecutions

Respondent

Ruling

1. The background of this application is that the Applicant was charged with two counts of assault Contrary to section 251 of the of the Penal Code in the Chief Magistrates Court at Kisii Criminal Case No 966 of 2022. The particulars of 1st Count are that on the 12th day of August 2022 at 11. 00 am at Township Location in Kitutu Central Sub- County within Kisii County, he unlawfully assaulted Agnes Moraa Nyamete thereby occasioning her actual bodily harm.

2. The particulars of the 2nd Count are that on 12th day of August 2022 at 11. 00 am at Township Location in Kitutu Central Sub- County within Kisii County, he unlawfully assaulted Mable Mokeira thereby occasioning her actual bodily harm.

3. The accused person who was duly represented by Mr. Magara Advocate appeared before Hon. C.A. Ogweno SRM and upon plea of not guilty being entered on both counts on 14th September 2022 , the accused person was ordered to deposit a cash bail of Kshs 20,000/= . A hearing date was set of 15th December 2022 and the court remarked; “Parties advised to pursue ADR.”

4. On the hearing date, the prosecution was ready to proceed with three (3) witnesses and so was the accused. It is apparent that the matter was not heard immediately at 11. 20 am. The court gave a mention date to confirm settlement by parties.

5. On the scheduled date, that is 1st February 2023, Kaino for the State intimated to court that the complainants were in court and had a meeting with the accused where they agreed that the accused person pays expenses before the withdrawal of the charges but , Mr. Kaino informed the court that the terms of the agreement were ridiculous whereupon he sought another date for parties to reach a reasonable settlement. The accused did not object and the court allowed that application.

6. On the scheduled mention date, on 1st March 2023 each of the complainants stated on oath that she that she wished to withdraw her complaint against the accused person on her own will and will not reinstate the charges in future. Both Mr. Kaino and the accused person had no objection but the accused added that he was remorseful

7. The court record reveals that before the court could give the orders, Mr. Kaino stated:“I have seen the injuries sustained by the complainant. I have considered the application for withdrawal. I have gone through the medical records . A weapon was used.On the public interest test, this matter should go to full trail. I object to the withdrawal . This will serve a very bad image to the public. We will be amending the charges.”

8. On that basis , the trial magistrate then held;“I have seen the injuries sustained by the 1st complainant These are grievous injuries. I equally decline the application by the victims to withdraw the charges. Bond terms reviewed to Kshs. 100,000/= with a surety of similar amount . Cash bail to be released to depositor. Hearing on 05/04/2023. ”

9. Aggrieved by those orders, the accused/ Applicant filed a Notice of Motion Dated 27th March 2023 through his advocates M/S M.W. Magara & Co. Advocates seeking orders;1. Spent2. Spent.3. Spent4. That pending hearing and determination of this application the Honourable court be pleased to review the terms and conditions granted to the applicant herein reinstating the initial cash bail of Kshs 20,000 in place of bond of Kshs 100,000 without the alternative of cash bail.5. That the Honourable court be pleased to review the decision of the honourable court to disallow the request/application for withdrawal of the complaints by the complainants in MCCR Case No 966 of 2022 and thereby declare the charges as duly withdrawn and the case closed.6. That the honourable court be pleased to issue any further orders it deems fit to grant.7. That the costs of this application be borne by the Respondent

10. The grounds are on the face of the application supported by the affidavit sworn on by Magara M.Winston advocate on 27th March 2023 basically capturing the background of the matter and further adding that the out of court settlement and subsequent agreement to withdraw the charges was reached at without any threat, intimidation or coercion from any quarter . As a consequence, he urges the court that the said settlement be upheld, , the charges be marked as withdrawn as the same is in the spirit of Article 159 (2) (d) which promotes alternative dispute resolution mechanism and more so among close family members and relatives.

11. The application was orally argued before this court with Mr. Magara submitting that the complainants were accused’s aunt and cousin respectively and sought to withdraw the charges before the court pursuant to an out of court settlement. He submitted that the application for withdrawal of the charges was done on oath by the complainants. That one of them showed the court injuries allegedly sustained by her whereupon the prosecutor urged the court not to allow the withdrawal on the grounds that the injuries were grievous harm.

12. Counsel summitted that by concurring with the prosecutor, and disallowing the withdrawal in the circumstances and even where the P3 Form had not been supplied, enhancing the bond terms and remanding the accused person pending trail and further that the charges were never amended shows that the court was already prejudiced and the accused was apprehensive that he will not get a fair trial. He therefore urges the court to allow the application for withdrawal of the charges by the complainants as they did it on their own free will.

13. In response, Mr. Ochengo for the Respondent submitted that the Applicant was later released on a cash bail of Kshs 30,000/= and therefore it was no true that he was not given an alternative of cash bail. Admitting that the Prosecution objected to withdrawal of the charges by the two complainants, he submitted that the charges were serious and the prosecution intends to amend the charge any time before the close of the Prosecution case .

14. Further, he submitted that Section 204 does not give the complainants absolute power of withdrawal of the charges as one has to satisfy the court sufficient grounds for such withdrawal. While citing the case of R v Faith Wangoi [2015]eKLR , he further submitted that in a criminal trial, the complainant includes the prosecution as well as the person indicated in the particulars.

15. He further submitted that the DPP cited public interest in the objection to the withdrawal of the complaint and the decision was consistent with Art. 157 (11) of the Constitution. He submitted that it was not demonstrated that the DPP violated the provisions of Art. 157 (11) by refusing to allow or concur with the application for withdrawal of the complaint.

16. Lastly, he submitted that the amended charge was ready and in possession of the investigating officer. He urged the court to dismiss the application.

17. In a rejoinder, Mr. Magara conceded that withdrawal of the charge is not absolute but submitted that when the complainant took the witness stand and while on oath stated that she wished to withdraw the charge, there were no amended charges and none had been availed. He therefore submitted that the DPP and the trial court were not experts to say that the injuries were serious in the absence of a medical report. .He therefore submitted that the accused person will not get a fair trial and he will be prejudiced if the matter proceeded to trail.

Detemination 18. This Court called for the lower court record and after considering the background of the matter, the broad issues for determination are;1. Whether the refusal by the DPP and the trial court to allow the withdrawal of the charges were a violation of Article 49 (1), 157 and 159 (2) of the Constitution.2. Whether the decision by the Court warrant revision by this Court.

19. On the first issue , it is important to state who the complainant is in this case and the power thereon in such an application for withdrawal of the case. Whereas the Criminal Procedure Code mentions the word “Complainant ” in key sections like Section 202 and 204 , it is not yet clear who a complainant is yet the direction the case would take is defined in relation to acts of the complainant. Section 202 of the Criminal Procedure Code provides that;“If, in a case which a subordinate court has jurisdiction to hear and determine, the accused person appears in obedience to the summons served upon him at the time and place appointed in the summons for the hearing of the case, or is brought before the court under arrest, then, if the complainant, having had notice of the time and place appointed for the hearing of the charge, does not appear, the court shall thereupon acquit the accused, unless for some reason it thinks it proper to adjourn the hearing of the case until some other date, upon such terms as it thinks fit, in which event it may, pending the adjourned hearing, either admit the accused to bail or remand him to prison, or take security for his appearance as the court thinks fit.”

20. Section 204 on the other hand provides that “If a complainant, at any time before a final order is passed in a case under this Part, satisfies the court that there are sufficient grounds for permitting him to withdraw his complaint, the court may permit him to withdraw it and shall thereupon acquit the accused.”

21. The Courts have therefore for a long time been left to determine who a complainant is. The Court of Appeal in Roy Richard Elirema & another v Republic [2003] eKLR had this to say on the issue;“The parties named in section 202, for example, are the complainant and the accused person. If the “complainant” is aware of the hearing date and is absent without explanation, the Court may acquit an accused person, unless the Court sees some other good reason for adjourning the hearing. The “complainant” in this context has been interpreted to mean the Republic in whose name all criminal prosecutions are brought, and not the victim of crime who is merely the chief witness on behalf of Republic – see, for example, the majority judgment of the Court of Appeal for East Africa in Uganda v Milenge and another, [1970] EA 269. In that case, the Court dealt with the role of a public prosecutor as follows: -“It is essential to consider the powers of a public prosecutor such as the State Attorney in this case. The first elementary principle is that he is the person who decides what witnesses to call and that he, at any rate, at the trial, has complete control of the prosecution in court. He can at any stage of the prosecution close his case and call no further evidence, and it is from this power that the practice has arisen for a prosecutor who does not desire to proceed with the prosecution against an accused person to offer during the course of the trial...” {Emphasis added]

22. This is further buttressed by Article 157 of the Constitution of Kenya 2010 defining the role of Director of Public Prosecutions. Article 157 (10) thereof provides that:“The Director of Public Prosecutions shall not require the consent of any person or authority for the commencement of criminal proceedings and in the exercise of his or her powers or functions, shall not be under the direction or control of any person or authority.”

23. These powers are replicated in Sec. 6 of the Office of the Director of Public Prosecutions Act 2013 that:“Pursuant to Article 157 (10) of the Constitution, the Director shall(a)not require the consent or authority for the commencement of criminal proceedings ;(b)not be under the direction or control of any person or authority in exercise of his powers or functions under the Constitution, this Act or any other written law; and(c)be subject only to the Constitution and the law.”

23. . Further, in Joseph Lendrix Waswa v R [2020] eKLR, the Supreme Court held“75. …. We are of the view that the victim has no active role in the decision to prosecute, or the determination of the charge upon which the accused will finally be tried. This is the sole duty of the DPP.”

24. Flowing from the above, then it is logical for this Court to hold that Agnes Moraa Nyamate and Mable Mokeira are victims and key witnesses in this case upon which the Prosecution hinges its case. They are adults who allegedly suffered harm following the assault. They are the ones who complained to the police and therefore called complainants.

25. For the police to have arrested the accused person, there was that complaint from the two individuals not the public. There were statements recorded. There must have been basis upon which the Investigating Officer believed the two were assaulted and that must have been in form of a P3 Form.

26. He therefore preferred the charges of assault against the Applicant and sought directions from Respondent as to whether to present the accused person to court on the said charges or not. There was that approval because the charge presented before the trial court on the material date was duly signed and stamped by the Respondent.

27. That is the charge the Applicant pleaded to and denied upon which he was given a cash bail of Kshs 20,000/= . It is the Court that advised the parities to attempt alternative dispute resolution mechanism. Following that advise, the parties appeared in court and on oath, each of the two key witnesses and who had made the complaint indicated that they wished to settle the matter.

28. It is not disclosed in the proceedings in the lower court what part of the agreement on payment of expenses to the complainants as a condition of withdrawal that the learned Prosecutor say that the terms of the agreement were ridiculous and seeking a mention for them “pursue reasonable settlement” and which the court agreed to.

29. The parties still came back and on their own free will and on oath, the two complainants applied to withdraw the charges against the Applicant and confirmed that they will not reinstate the charges against him. This is not for example, a murder case where the dead cannot talk and where it is not only in the interest of the deceased’s family but also in the public interest that the case should go to its logical conclusion for justice to be done but also to be seen to be done.

30. An assault case involving an adult of sound mind as in this case , cannot be said to be a public interest case. Such a complainant who has suffered personal physical pain and on her own free will and unequivocally says she has forgiven the accused person and that she will not in future reinstate the charges against him, fully understands the consequences of such withdrawal.

31. She should be allowed to exercise that right pursuant to Section 204 of the Criminal Procedure Code without unnecessary bureaucracy from the Respondent. That in effect would promote the spirit and purport of Article 159 (2) of the Constitution on promoting alternative dispute resolution mechanism and ensuring that justice is not delayed which is in essence one of the elements of fair trial.

32. The gains for Alternative Dispute Resolution mechanism cannot be overemphasised. It promotes cohesion and peace between the parties unlike the adversarial court hearing. It is also cheaper and reduces case backlog. Even though the Respondent has immense powers of control in regard to criminal prosecution, the said powers are not absolute as seen under Article 157 (11) which provides that;“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.”

33. The victims and the Applicant are said to be close relatives. The Respondent herein cannot be said to have acted in good faith when he changed his mind and declined withdrawal of the charges for reasons that the injuries sustained were serious and a weapon was used and that therefore, he would be amending the charges. In the circumstances this court is satisfied that the Respondent dis not exercise its powers properly in this matter.

34. By concurring with the Respondent in declining withdrawal and going ahead to review the bond terms upwards before the amended charge was presented and without application by the Respondent , the trial court acted without any lawful basis and the said decision was a violation of accused’s right to fair trial and hence prejudicial. The decision was irregular in the circumstances despite that the Applicant was later on given an alternative of Cash bail of Kshs 30,000/- when it transpired that he was ailing in custody and did pay the same.

35. Further , the trial court’s own assessment in court to reach to the conclusion that the injuries were grievous is tantamount to usurping the powers of the doctor as witness and this was irregular and without any legal basis. In the circumstances, it is clear that the matter before the trial magistrate was not properly handled.

36. In exercise of it powers bestowed to the Court under Section 364 of the Criminal procedure Code, this Court is satisfied that there is need for intervention. The application dated 27th March 2023 is allowed but in the following terms ;1. The initial cash bail of Kshs 20,000/- be and is hereby reinstated in place a bond of Kshs 100,000/- with a surety of similar amount or cash bail of Kshs 30,000/=.2. The Chief Magistrates Court Criminal Case No 966 of 2022 is now remitted back to the Chief Magistrate Court to be handled by any magistrate other than Hon. Ogweno and with a view to pursuing the process of Alternative Dispute Resolution including but not limited withdrawal in accordance with the wishes of the victims and the accused /applicant.3. Each party to bear his own costs of this application.

DATED, SIGNED AND DELIVERED VIRTUALLY AT KISII THIS 27TH DAY OF JUNE, 2023. PATRICIA GICHOHIJUDGEIn the presence of:N/A for ApplicantMr. Ochengo for RespondentKevin Isindu, Court Assistant