[2020] KEHC 7409 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MARSABIT

CRIMINAL APPEAL NO. 23 OF 2018

PAUL HIRBO ISATU...........................................APPELLANT

VERSUS

ABDIRAHMAN AKE HIRBO...................1ST RESPONDENT

RAMATE AKE HIRBO.............................2ND RESPONDENT

ABDI AKE HIRBO.....................................3RD RESPONDENT

CHAMO ABDIRAHAM AKE...................4TH RESPONDENT

OCS MARSABIT POLICE STATION......5TH RESPONDENT

THE DIRECTOR OF DPP.........................6TH RESPONDENT

J U D G M E N T

The appellant filed a notice of motion dated 18. 11. 2019 seeking the following orders:

1. That the honourable court be pleased to order that the 5th and 6th respondents be directed to arrest and prosecute the 1st, 2nd 3rd and 4th respondents for a criminal offence.

2. That in the alternative, the applicant be given leave to institute private prosecution against the 1st, 2nd, 3rd and 4th Respondents.

The application was supported by the appellant’s affidavit sworn on 18. 11. 2019. The trial Court summarily dismissed the application leading to the filing of this appeal. The grounds of appeal are:-

1. That the learned Resident magistrate erred in law and in fact in failing to read and understand the appellant’s prayers and proceeded to dismiss his application.

2. That the learned Resident Magistrate erred both in law and in fact in finding that the application was un-procedural against the provision of Article 159 (2) (d) of the Constitution of Kenya which provides for fair administration of justice irrespective of technicalities.

3. That the learned Magistrate erred in law and in fact in relying on extraneous matters in dismissing the appellant’s application without giving him audience.

4. That the whole ruling and order of the Resident Magistrate is against the pleadings, submission and the law.

The appellant submitted that he was assaulted by the first four respondents on 2. 11. 2019. He reported the matter at the Marsabit Police station under occurrence book No. OB/47/2/11/2019. He went to Marsabit hospital for treatment and was later issued with a P3 form that was duly filled and returned to the Police. The application before the trial Court sought to have the culprits arrested and charged with the offence but it was dismissed. All what the appellant is seeking is justice. The appellant recorded his statement with the Police and was issued with a P3 form. He was assaulted alone and cannot be forced to produce witnesses.

Mr. Ochieng, learned prosecution counsel, opposed the application. Counsel contend that Article 157 of the Constitution give powers to the DPP to prosecute. The power is not subject to control by anyone. A decision to charge is based on the evidence on record. After completing their investigations, the Police presented the file to the DPP’s office. The DPP concluded that the threshold for charging the suspect had not been met. The DPP gave directions for covering the gaps. The investigations are not complete. The appellant has not presented his witnesses to enable the DPP make final decision. The application is premature. The DPP cannot be forced to institute charges where there is no evidence to support the case.

Article 157 (6) (a) of the Constitution states as follows: -

(6) The Director of Public Prosecutions shall exercise powers of prosecutions and may -

a. Institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alledge to have been committed;

Article 157(10) states: -

(10) 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.

My understanding of the appellant’s contention is that he was assaulted by the four respondents and sustained injuries. He sought medical treatment at the Marsabit General hospital and a P3 form was subsequently issued. It is the Police who issued the appellant with the P3 form. Although the P3 form was not annexed, there is no indication that the appellant did not suffer any injuries. I believe the doctor who filed the P3 form can testify on the appellant’s injuries. The appellant can equally testify on how he was assaulted. It is not clear which other gaps the prosecution would like to be filled.

The preamble to the Constitution partly states: -

RECOGNIZING the aspiration of all Kenya’s for a government based on the essential values of human right, equality, freedom, democracy, social justice and the rule of law.

The appellant’s complaint is that he dutifully reported the assault to the Police. His statement was recorded and the injuries were confirmed by the doctor. I believe the prosecution can ably take the case to Court and whether there is a conviction or not is for the court to decide. There is no reason as to why the suspects cannot be arrested and charged. The letter from the ODPP seeking clarification from the OCS Marsabit Police Station was written on 10th December, 2019. Over three months have now lapsed.

The appellant informed this Court that he heard that one of the suspects was equally issued with a P3 form. If that is the case, the Police can investigate the two allegations of assault and charge both perpetrators before the Court. It is the DPP to decide on what kind of charges to prefer. The information provided by the appellant does prove that that an offence was committed.

The appellant is not forcing the DPP to prosecute the suspects. All what the appellant is seeking is equal application of the law to all Kenyans. He was assaulted and his attackers have to be prosecuted. He cannot be called upon to produce eye witnesses. The DPP has been at the forefront enforcing the constitution and ensuring that those alleged to have committed any offence are prosecuted. This is in line with Article 157 (6) (a). The DPP should not set the bar too high as to let suspects escape through its net. This is a simple complaint of assault which in my view cannot be ignored. The rule of law should be upheld so as to avoid complainants taking revenge on the suspects.

I am satisfied that the appellant’s application before the trial Court was merited. There is no need for the appellant to institute private prosecution. He is a tax payer and a loyal Kenyan who is out to seek justice. The DPP should prosecute the suspects.

In the end, I do allow the appeal. The order of the trial court dismissing the appellant’s application is hereby set aside. The appellant’s application dated 18. 11. 2019 is hereby granted in terms of prayer two (2). The 5th and 6th respondents to charge the suspects in Court within twenty one (21) days hereof. There shall be no orders as to costs.

Dated, Signed and Delivered at Marsabit this 11th day of March, 2020

S. CHITEMBWE

JUDGE