[2023] KEHC 23314 (KLR)

Osen v Republic (Criminal Revision E120 of 2023) [2023] KEHC 23314 (KLR) (11 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23314 (KLR)

Republic of Kenya

In the High Court at Kisumu

Criminal Revision E120 of 2023

RE Aburili, J

October 11, 2023

Between

William Ngore Osen

Applicant

and

Republic

Respondent

(From the original conviction and sentence in Chief Magistrate’s Court Criminal Case No. 19 of 2019 at Kisumu)

Ruling

1. The Applicant is William Ngore Osen. He is an accused person vide Kisumu Chief Magistrate Criminal Case No 19 of 2019, which case has not been heard and determined, four years down the line.

2. He is charged with the offence of obtaining money by false pretences contrary to Section 313 of the Penal Code.

3. When he took plea on January 19, 2019, he pleaded not guilty to the charge and he was released on his own bond of Kshs 2 million with a surety of similar amount.

4. The offence allegedly took place between January 9, 2017 and August 30, 2017. It was alleged that on the named dates, he obtained from Agnes Nafula Odhiambo Kshs 2,850,000 by falsely pretending that he was in a position to sell to her a parcel of land number Kisumu/Korando/1997, the fact he knew was false.

5. On several occasions in 2019 when the case was due for hearing, the accused did not appear and warrants of arrest were issued against him although the warrants were later lifted. It was alleged on several of those occasions that the accused had gone to see the doctor, on other occasions, that he had gone to India for treatment upon being diagonized with throat cancer and the court kept asking for evidence of treatment notes.

6. In addition, the trial court was most of the time given conflicting information and therefore it was not possible for the court to know whether the accused was ailing or not in that at one point, his advocate was saying that his client was in India for treatment and at the same time saying that he was in the country.

7. The case has as a result dragged on and on and several magistrates who have handled the case have had to be transferred from the station.

8. In addition, several counsels have had to cease acting for the accused person. It was not until the warrant of arrest was to be executed against the accused person that the case finally proceeded to hearing on May 25, 2021 for the first time although the court allowed the accused to appear virtually as he was said to be in the United Kingdom (UK) for treatment.

9. The trial court record shows that the accused person’s counsel promised to avail to court evidence of his client being in the United Kingdom (UK) and that he was undergoing treatment but none have ever been availed to court.

10. Further, it appears that after the prosecution and the court were fatigued with adjournments, they settled for a virtual hearing for the accused’s appearance so that the case could progress.

11. In 2022, after some prosecution witnesses had testified, the defence counsel informed the trial court that his client was willing to have the case resolved out of court as parties were intimating that they wished to reconcile.

12. The parties then appeared before Court 1 Chief Magistrate’s Court on August 17, 2023 and the matter was sent to Court No 2 Chief Magistrate’s Court but after the defence counsel informed the court that his client was online and that he had made a proposal for settlement such that he had already deposited a cheque of Kshs 100,000 with Mr Ayayo his advocate.

13. When the matter came before Hon Dr Ogoti Chief Magistrate on July 17, 2023 is when the prosecution, for the very first time sought for a ruling on whether the accused person who was appearing online was within the jurisdiction of the court and therefore whether the court had jurisdiction to hear the matter when the accused was outside the jurisdiction.

14. Mr Thuo Prosecution Counsel submitted that a criminal court does not have jurisdiction where the accused is believed to reside in the United Kingdom and that nothing had been placed before the court to convince that criminal cases can be heard virtually hence the accused should appear virtually.

15. Mr Oduor T, the advocate watching brief for the complainant submitted that the accused was protracting the matter and delaying it further and that in 2019, the accused was given last adjournment and no proof was presented to court to prove that he is out of jurisdiction. He submitted that they had reasons to believe that the accused was in the country doing business and that his attendance was crucial.

16. That the court has jurisdiction on attendance of the accused in court hence he should present himself physically and that proof of not being within the country had to be provided.

17. In the Ruling sought to be revised, the trial court acknowledged that the matter had proceeded virtually and noted that the accused was not granted permission to travel out of the country thereby violating his bond terms and that the court had no documentary proof that the accused ever travelled out of the country, which issue had been raised severally in the proceedings to no avail.

18. Further that the prosecutor moved the court to proceed virtually for the benefit of the accused without laying a basis hence the orders regularising the proceedings which are now impugned.

19. Having considered the trial court record and the impugned ruling, I observe that the accused is on bond and no leave of court was sought for him to travel out of jurisdiction of the court. However, the prosecutor applied and the court then, allowed the proceedings to proceed virtually and on each of those occasions when the hearing took place, the accused was present virtually with his counsel who had disclosed to court that his client had travelled to India for treatment and later to the United Kingdom.

20. Albeit no leave of court was sought for the accused to travel out of the country, the prosecution’s conduct in applying to court that the case proceeds with the accused appearing virtually, must have made the accused person to believe that it was okay for him to appear virtually and the issue of jurisdiction never arose.

21. In my humble view, what the prosecutor should have done, upon realising that there is no evidence of the accused being out of the country, was to apply that the accused appears in court physically and not virtually since no leave of court was sought before the accused allegedly travelled out of the country, so that, assuming the accused was out of the country, he would prepare to travel and attend physical hearings.

22. In other words, this court has not seen the change of circumstances that would demand suspension of the accused person’s bond before he is ordered to appear in court physically and he declines or defaults to appear.

23. In addition, it would be unfair to issue summons to the surety at this stage to produce the accused person when the court could have simply ordered the accused person who was virtually present, to appear in court physically.

24. Further, as the accused was present virtually, the court could simply have directed him to appear physically and given him a timeline and should he default, a warrant of arrest would issue and summons to issue to the surety where the accused fails to appear physically.

25. In my humble view, therefore, the orders made on September 25, 2023 were premature since there was no evidence that the court had ordered for physical appearance of the accused and that he had defaulted or disobeyed orders of the court to appear in court physically and as his appearance virtually was from the onset, on the application by the prosecution and with leave of court.

26. For that reason, I hereby revise the orders of September 25, 2023 and set aside the said orders and direct that the file be returned to the trial Magistrate to follow due process stipulated in this Ruling.

27. I so order.

28. This file is closed.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 11TH DAY OF OCTOBER, 2023R. E. ABURILIJUDGE