[2023] KEHC 24769 (KLR)

Ondira & another v Republic & another (Criminal Appeal 111 of 2023) [2023] KEHC 24769 (KLR) (Crim) (2 November 2023) (Judgment)

Neutral citation: [2023] KEHC 24769 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Appeal 111 of 2023

LN Mutende, J

November 2, 2023

Between

Simon Nyamanya Ondira

1st Appellant

Simon Nyamanya Ondira

2nd Appellant

and

Republic

1st Respondent

Republic

2nd Respondent

(Being an Appeal arising from the Ruling of Makadara Chief Magistrate’s Court in Cr. Case No. 2788 of 2016 by Hon. H.Onkwani – PM on 21st June, 2022)

Judgment

1. Simon Nyamanya Ondira, the Appellant, is jointly charged with others for various offences as follows:COUNT 1 –Malicious Damage to property contrary to Section 339 (1) of the Penal Code, the particulars of charge being that on 26th September,2016 at City Cabanas restaurant in Embakasi within Nairobi County jointly with others not before court willfully and intentionally damaged the perimeter wall of City Cabanas Restaurant valued at Ksh 2,084,254/- property of Rosaline Njeri Macharia.COUNT II –Conspiracy to defraud contrary to Section 317 of the Penal Code, the particulars of the offence being that on or before 5th day of January, 2015, at unknown place within the Republic of Kenya, jointly with others not before court with intent to defraud forged a certain document namely a lease for Title LR NO.209/11293/1 dated 5th January 2015 leased to Simon Nyamanya Ondiba, Mary Nyamanya purporting to be the genuine and valid lease signed and issued by the Chief Land Registrar Sarah Njuhi Mwenda, a fact they knew to be false.COUNT III –Forgery contrary to section 350(1) of the Penal Code. The particulars being that on or before 15th January, 2015, at unknown place within the Republic of Kenya jointly with others not before court with intent to defraud forged a certain document namely certificate of Title IR NO 161289 dated 15th January, 2015 in the names of Simon Nyamanya Ondiba, Mary Nyamanya purporting to be the genuine and valid Title for the said plot signed and issued by G.S.B IRUNDU Chief Land Registrar a fact they knew to be false.COUNT IV –Forgery contrary to section 350(1) of the Penal Code. The particulars of the offence being that on the 24th day of August, 2016, at Milimani High Court in Nairobi within Nairobi County uttered a false document namely A Certificate of Title IR NO.161289 to Registrar of High Court purporting to be a genuine certificate of title issued by the Registrar of Lands ARDHI House.

2. Having denied the allegations, the matter was set down for hearing. This appeal, an interlocutory one, filed pursuant to leave of the court emanates from the Ruling of the trial court presided over by Onkwani PM following an oral application made in Makadara Chief Magistrate’s Criminal Case No. 2785 of 2016. The appeal was proffered on grounds that: The trial magistrate erred in law by refusing or rejecting the application to recall two witnesses who had testified in the accused absence.

That the appellant’s constitutional right to a fair trial was threatened and infringed.

That the magistrate erred in law when she ruled that the applicant would not be prejudiced by rejection of the application to recall two witnesses.

That there was no reason to deny the appellant the right to recall the two witnesses as no cause was shown by the prosecution that they were either unavailable or circumstances to avail them would be onerous to the state.

The ruling was unfair and unreasonable.

That the magistrate demonstrated bias against the appellant.

3. The appeal was canvassed through written submissions by the appellant through the firm of Maosa Co. Advocates. The substratum of the appeal is that the applicant was denied the opportunity to recall two (2) witnesses who had testified. He urges that denial of the application has prejudiced his right under Article 50 (1) (2) and 27 of the Constitution. That his right to equal protection of the law was violated, as the witnesses testified in his absence, and, that the co-accused were accorded the opportunity to test the evidence given by the witnesses.

4. That his absence was caused by his indisposition as the record shows that he was unwell and the police had been dispatched to execute warrants against him.

5. The appellant further relies on Section 146(4) of the Evidence Act and 150 of the Criminal Procedure Code (CPC), following the argument that parties have a right to cross examine witnesses and further reexamine them, respectively.

6. That the right to recall witnesses is an important aspect on the right to fair trial as held in the case of Republic v Salim (2016) eklr.

7. That the Court should not be seen to shield a party from further cross examination unless the request is based on ulterior motive. In this regard the appellant refers to the case of Juma v Ali (1964)EACA EA 461.

8. He further urges that there ought to be equality of arms on the matter and that the trial court failed to grant the appellant equal opportunity as other parties in the proceedings. That he would be in a substantial disadvantage vis a vis his opponent.

9. Relying on the case of Moses Ndichu Kariuki v R, Nyeri Criminal Appeal No. 228/2008 (2009) eklr and Young Mule v R (2020) eklr, the appellant argues that he was not accorded a fair trial.

10. The respondent was granted time to file submissions that were not forthcoming.

11. This being an appeal from the order of the subordinate court, this court is seized of the power to determine the grounds set out on the Petition of appeal, with a further duty to reassess the manner in which the proceedings of the trial court were conducted and come up with its independent conclusions, also appreciating that the court never saw the witnesses or heard them to establish their demeanour. This is notwithstanding the respondent having not filed a response to the appeal. In this respect, I am guided by the case of Odhiambo v Republic (2008) KLR 565, where the Court held that:“the court is not under any obligation to allow an appeal simply because the state is not opposed to the appeal. The court has a duty to ensure it subjects the entire evidence tendered before the trial court to a clear and fresh scrutiny and re-assess it and reach its own determination based on evidence.”

12. Similarly, this court can not merely set aside a decision made from the court’s discretion unless it appears that the court applied wrong principles of law or if it misdirected itself. With all these in mind, the key issue for determination in the appeal is whether the court erred in disallowing the application to recall witnesses.

13. From the record, the applicant had legal representation. Mr. Arusei, his advocate appeared severally. When the matter proceeded on 17th August,2021, the defence had been granted a last adjournment following the court’s remarks made on the delay of the matter which was initiated in 2016 and had not been heard as at 2019. Proceedings of 17th- August, 2021 show that the 1st, 2nd, 3rd and 5th Accused were absent while the 4th Accused was present and represented by his counsel.

14. Counsel holding brief for counsel for the 5th Accused informed court that the Accused 5, the appellant herein was unwell, the other accused whereabouts were unknown while Accused 4 who was present said that his advocate was in Milimani Chief Magistrate’s court.

15. The court declined an application to adjourn the matter and proceeded to record evidence adduced by PW1 and PW2. Mr Onkangi who according to the record was representing the 1st accused cross- examined the witnesses. Counsel who would appear for appellant told court that she would not represent him. The matter later came up on 15th January,2022 when the evidence of PW3 was recorded. Similarly, the court declined an application for adjournment and an application made on behalf of the appellant, the 5th accused to recall PW1 and PW2. The application had been brought on the ground that the accused was unwell and that his counsel failed to appear. Counsel stated that it was upon the court’s discretion to allow the application, which was opposed by the prosecution. The prosecution contended that the case was brought in 2016 and that the defence were employing delaying tactics.

16. The impugned ruling was following a considered view that, the case was a 2016 matter, the defence were granted a last adjournment and that there was no prejudice occasioned to any party if the matter proceeded from where it had reached.

17. The right to recall and to further cross examine witnesses is provided under Section 146 (4) of the Evidence Act which enacts that:“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.”

18. Procedurally, a criminal court has unfettered discretion to either on its motion or on application recall witnesses for further evidence. Section 150 of the CPC enacts that;A court may, at any stage of a trial or other proceeding under this Code, summon or call any person as a witness, or examine any person in attendance though not summoned as a witness, or recall and re-examine a person already examined, and the court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case:Provided that the prosecutor or the advocate for the prosecution or the defendant or his advocate shall have the right to cross-examine any such person, and the court shall adjourn the case for such time (if any) as it thinks necessary to enable the cross-examination to be adequately prepared if, in its opinion, either party may be prejudiced by the calling of that person as a witness.”

19. In the case of Kulukana Otim v R [1963] EA 257, the Court of Appeal, in considering section 146 of the Ugandan Criminal Procedure Code which is, in pari materia with our section 150 of the CPC, stated that:“It will be seen that the first part of the section confers a discretion, but under the second part, if it appears to a judge that the evidence of a person is essential to the just decision of a case, there is a mandatory duty on the judge (if the witness has not been called) to call him himself….”

20. The provision of the law gives condition that the evidence must be essential to the just decision of the case. Therefore, the evidence that would be addressed during cross examination should form a key part in the determination of the case.

21. The right to challenge and further adduce evidence is one of the tenets of the rights to fair trial. Article 50 (2) of the Constitution provides that every accused has a right to a fair trial, while Article 50 (k) of the Constitution stipulates that every accused has the right to adduce and challenge evidence.

22. The right to recall and cross examine witnesses by the accused has been elevated and is no longer a mere statutory benefit. Locking out an accused from cross examining witnesses, as in this case where the appellant did not cross examine witnesses at all, would cause miscarriage of justice and vitiate a trial.

23. In the case of Moses Ndichu Kariuki Vs Republic, Criminal Appeal No. 228 of 2008 (2009) eKLR, the Appellant claimed his right to fair trial had been breached when he was not afforded an opportunity to further cross-examine the witnesses. The Court of Appeal considered the provisions of Section 77 of the former Constitution which is similar to Article 50 of the current Constitution, and, stated that:“In our determination, the right to cross-examine is the linchpin of the concept of a fair trial in that, it has a bearing on the principle of the equality of hearing and the equality of arms without which a trial cannot be said to have been conducted fairly. On our view, denial to cross-examine in turn means that the defence was not treated fairly and the two requirements of equality of hearing and equality of arms were not satisfied. Our view on this is reinforced by the marginal notes in Section (Article) 77 in that the entire provision is entitled the provisions to secure protection of law. Clearly the failure to recall the complainant for purposes of further cross-examination by the appellant caused prejudice to the appellant.”

24. The circumstances here are that both the appellant and his advocate were absent when the evidence was recorded.The prosecution argued that the accused counsel had a duty to attend court on his behalf, however, hearing cannot take place in the absence of the accused unless he is excused from attending the proceedings for reasons known in law.

25. The medical records are evidence of the accused illness and inability to attend court during that period. Further the prejudice suffered considering the rights at stake were much higher than the court’s desire to determine the matter expeditiously. The prosecution did not demonstrate any difficulty in tracing the witnesses or complying with directions requiring them to be recalled.

26. The court recorded evidence of PW3 who testified on 26th June,2022. Again, on that day the appellant and his co accused did not cross examine the witness. The appellant was not represented and it is not clear and/or recorded if he was reminded of his right to cross examine the prosecution witness. This may be in contravention of Article 25(c) of the Constitution, as the right to fair trial which should not be limited includes the right to challenge evidence. In the result, the court erred in law in its conclusion that no prejudice would be caused. Further, the court failed to apply its discretion within the law. This is because Section 150 of the CPC and Section 146 of the Evidence Act both stipulate that the provision is applicable at any time before judgement as long as the witnesses are reexamined.

27. On the issue of the magistrate being biased, a judicial officer is expected to act judiciously so that the trial is seen to be fair. There may be a possibility of bias which must be proved by the party alleging. If demonstrated, the question of impartiality arises. In the case of Porter vs Magil (2002) 1 All ER 465, it was stated as follows:“The question is whether the fair minded and informed observer having considered the facts would conclude that there was real possibility that the tribunal was biased”

28. Looking at the record the accused staked out several adjournments hence ensuring the matter did not proceed. A judicial officer is expected to ensure both the accused and victim access justice which includes the matter being heard and determined within a reasonable time. There was an attempt to have the matter that has been in court for seven years concluded. It is not alleged that the judicial officer had any relationship to the party or had an ulterior motive in wanting the matter concluded. For that reason, no bias on the part of the judicial officer has been proved.

29. The upshot of the above is that appeal is meritorious, the Ruling of the trial court dated 21st June,2022, declining recall of PW1, and PW2 be and is hereby set side. The two witnesses will be re-called for cross-examination by the defence. Due to the age of the case, the judicial officer seized of the matter shall ensure it is determined expeditiously.

30. It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS AT NAIROBI,THIS 2ND DAY OF NOVEMBER, 2023. L. N. MUTENDEJUDGEIn The Presence Of:Mr. Otieno h/b for Mr. Maosa for AppellantMs. Odour for ODPP/ RespondentCourt Assistant - Mutai