[2022] KEHC 9844 (KLR)

Rashid & 3 others v Republic (Miscellaneous Criminal Application E453 of 2021) [2022] KEHC 9844 (KLR) (Crim) (6 July 2022) (Ruling)

Neutral citation: [2022] KEHC 9844 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Miscellaneous Criminal Application E453 of 2021

JM Bwonwong'a, J

July 6, 2022

Between

Mohamed Akbar Rashid

1st Applicant

Yulien Stankov Petrov

2nd Applicant

Joshua Gaya Anyanga

3rd Applicant

Hezron Nyabola Nyagela

4th Applicant

and

Republic

Respondent

(Being an application for revision of the ruling of Hon. C M Njagi, SRM, dated 26/11/2021 in the Chief Magistrates’ Court at Milimani in Criminal Case No. 800 of 2019, Republic v Mohamed Akabar Rashid & 3 Others)

Ruling

1. The applicants moved this court under certificate of urgency pursuant to section 50 (2) of the 2010 Constitution of Kenya and the Criminal Procedure Code (Cap 75) Laws of Kenya in which they sought the following orders.1. Spent2. An order to revise, review and/or set aside the ruling and subsequent orders issued in Milimani Chief Magistrate’s court in Criminal Case No 800 of 2019 on November 26, 2021, which allowed the prosecution to present evidence of one witness through the virtual platform (video conference).3. An order to make provision for costs.

2. The application is based on the following grounds. The prosecution is attempting to circumvent the applicants’ fair trial rights by avoiding to produce a crucial witness in open court even in the face of doubtful identification of the said witness. The reliability and suitability of the virtual platform is doubtful in conducting a fair trial given that the identity of the aforesaid witness is in issue and that the production of documents by that witness is crucial.

3. Furthermore, the virtual platform is marred with numerous technical hitches which militates against a fair trial. The learned trial magistrate arrived at the wrong decision in ruling that the virtual platform be used. The fair trial rights of the applicants should not be sacrificed at the altar of expediency and convenience.

4. In addition to the foregoing, the application is supported by an 18 paragraphs supporting affidavit of Yulien Stankov Petrov; whose major averments are as follows. I have declined to set out the averments for reasons which will appear below in this ruling.

The submissions of the applicants 5. Messrs Oundu & Associates for the applicants have filed written submissions in support of their application. They have submitted that the applicants are charged with obtaining money by false pretences contrary to section 313 of the Penal Code (Cap 63) Laws of Kenya.

6. Counsel further submitted that after two witnesses testified the prosecution applied for and obtained an order of the court on November 26, 2021 to allow one Swatantar Kumar Chaun to testify virtually. The reason given by the prosecution was that the said witness had travelled to his home in India and that he was unable to return due to the covid-19 pandemic restrictions on travel. Counsel now contends that the travel restrictions have now been lifted.

7. The second reason given by the prosecution and also accepted by the learned trial magistrate is that it was costly and it would cause undue delay in completing the trial of the applicants.

8. The trial court in addition to accepting the arguments of the prosecution also added that it had the technological capacity to virtually take the evidence of the said Swatantar Kumar Chaun.

9. Counsel for the applicants has submitted that the virtual taking of the evidence of the said Swatantar Kumar Chaun will infringe the fair trial rights of the applicants in the following ways. First it will infringe the applicants right to challenge the prosecution evidence which right is guaranteed to the applicants by article 50 (1) (2) (k) of the 2010 Constitution of Kenya .

10. Furthermore, counsel has also submitted that article 48 of the 2010 Constitution of Kenya guarantees access to justice to all persons and that if any fee is required it shall be reasonable and should not impede access to justice.

11. Counsel has further submitted that they have a problem concerning the identity of this witness and therefore his appearance in court is important.

12. Additionally, counsel has further submitted that a virtual hearing will affect the trial court’s ability to assess the credibility of the said witness; which counsel submits is a key component to procedural justice.

13. Furthermore, counsel has also submitted that the trial court cannot effectively control the proceedings in circumstances such as this where the trial will be conducted virtually.

The submissions of the respondent 14. Ms Edna Ntabo, counsel for the respondent has filed written submissions in opposition to the application.

15. She has submitted that the covid-19 pandemic challenge has forced court actors to embrace technology. Courts worldwide have resorted to virtual hearings if situations call for and if the necessary links have been provided to facilitate the process.

16. Counsel has further submitted that the applicants have not demonstrated that prejudice will be occasioned if the trial proceeds virtually in respect of this witness.

17. Counsel has further submitted that the evidence of the said witness is crucial and that it is important his evidence be taken in the interests of justice.

Issues for determination 18. I have considered the affidavit of the applicants and the submissions of both parties. I have also perused the ruling sought to be revised.

19. As a result, I find that the following are the issues for determination.1. Whether the ruling is ripe for revision.2. Whether I should make findings in respect of the submissions of the parties.3. Whether costs are payable in criminal matters.

Issue 1 20. The impugned ruling was rendered in the course of the proceedings which have yet to be determined. In other words, it is an interlocutory ruling. The law in this regard, is that interlocutory rulings and orders are not ripe for revision. The reason for this is that if this was to be done it will amount to allowing this court to micro-manage the trial process of the trial court; which is constitutionally impermissible. If micro-managing were to be allowed it will lead to delays and inconvenience to the parties.

21. In this regard, this court (JM Bwonwong’a, J) in Mohamed Asif Rehman v The Chief Magistrate Court, Makadara, Nairobi High Court Criminal Revision NO E398 OF 2021, pronounced itself as follow:“Furthermore, it is equally important to point out that it is only final orders that are subject to be revised; which orders are usually made after judgement (conviction and sentence) or after the acquittal of the accused. Interlocutory orders that are made in the course of a trial are not ripe for revision. If this were to be allowed it will result in delays and inconvenience to the parties. It may also administratively lead to congesting the registry of this court with magisterial court files that are called by the Deputy Registrar of this court with the result that the magisterial court proceedings will be stopped administratively because their files will have been taken to the High Court. This should be avoided in the interests of speedy disposal of trials, among other rights, that are guaranteed to an accused person in article 50 (2) (e) of the 2010 Constitution of Kenya; which reads as follows:to have the trial begin and conclude without unreasonable delay…”

22. Additionally, the court therein further pronounced itself as follows:In view of the foregoing, I find as persuasive the case cited by the OAG namely Joseph Nduvi Mbuvi v Republic, supra, which in turn cited with approval Thomas Patrick Gilbert Cholmondeley v Republic, supra, in which the court observed that the revisionary jurisdiction of the court should not be invoked so as to micro-manage the proceedings in the magisterial courts.”

23. The revisionary jurisdiction of the High Court is limited both in scope and extent. Generally, it does not call for the production of affidavit evidence. It is for this reason that I declined to set out the averments of the applicant’s in his affidavit.

24. In the premises, I find that the ruling impugned ruling is not ripe for revision.

Issue 2 25. In view of the foregoing, I find that it is not necessary to consider the attractive submissions of the applicant; since the issues raised are moot or academic issues. Those moot issues might be good for other forums but not for a court of law which is constitutionally mandated to determine real disputes. For the court to embark in considering the moot issues will amount to engaging this court in an exercise in futility, which is not allowed by law. See Attorney v Ally Kleist Sykes (1957) EA 257.

Issue 3 26. As regards payment of costs, I hereby adopt what this court (J M Bwonwong’a, J) said in Tom Oywa v Director of Public Prosecutions, in Nairobi High Court Criminal Appeal No E100 OF 2021, in the following terms:

27. A perusal of the Criminal Procedure Code clearly shows that costs in this type of application are not provided for. Costs are only provided for in what is popularly known as private prosecutions in terms of section 171 (1) and (2) of the Criminal Procedure Code.

28. Additionally, only the High Court has inherent powers to order for the payment of costs at common law. See Municipal Council of Dar es salaam v Almeida (1957) EA 244. I find nothing in the circumstances of this application to warrant the making of an order for the payment of costs. I therefore make no order as to costs.

29. In the premises, I find that the applicant has failed in his application with the result that the application is hereby dismissed in its entirety.

30. Consequently, I find that the application is incompetent and is hereby struck out with no order as to costs.

RULING SIGNED, DATED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 6TH DAY OF JULY 2022. J M BWONWONG’AJUDGEIn the presence of-Mr. Kinyua court assistantThe applicants - PresentMr. Oundu for the ApplicantsMs. Joy for the Respondent.