[2015] KEHC 4042 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT GARISSA

CRIMINAL REVISION NO. 199 OF 2013

(FROM ORIGINAL INQUEST NO. 16 OF 2007 IN P.M'S COURT MWINGI)

REPUBLIC THRO’ CID MWINGI................................... PROSECUTOR

AND

IN THE MATTER OF JULIUS KILONZO MUTHENGI …… DECEASED

RULING

This matter was placed before this court under its revision jurisdiction through a letter dated 9th December 2013 written by C. K. Nzili & Co Advocate for the family of the deceased Julius Kilonzo Muthengi. In the said letter, the advocate asked this court to exercise its review jurisdiction and reverse the ruling of the inquest court so that action can be taken against the perpetrators of the alleged crime. Secondly, counsel asked this court to direct the named perpetrators of the crime to be arrested and charged for the death of the deceased. Thirdly, counsel asked this court to grant any further relief in favour of the deceased’s family.

Mr. Nzili for the family of the deceased addressed the court at length. Counsel submitted that an inquest was held following initiation of inquest proceedings by the Attorney General by his letter dated 24th October 2007 and an order to hold the inquest made by the magistrate at Mwingi on 16/1/2008. Counsel submitted that 34 witnesses testified and a ruling delivered on 15th November 2013. Counsel submitted that there were contradictions on pages 162 and 163 of the inquest court’s record in relation to the findings and the conclusion. Counsel submitted that the learned magistrate wrongly suggested a civil claim for wrongful death, while he did not have power to do so in an inquest.

Counsel emphasized that under Section 387(3) of the Criminal Procedure Code the presiding officer of an inquest was required, if he finds that an offence had been committed and the culprits identified, to exercise only one of three options. Either to issue summons for the culprit to be charged, or to start the inquest de novo or to make recommendations to initiate proceedings for further investigations. According to counsel the presiding officer herein erred in ordering closure of the file after finding that an offence had been committed.

Counsel submitted that Section 362 of the Criminal Procedure Code donated powers to this court to examine the record of the lower court to satisfy itself that same complied with the law. Counsel submitted that a witness who testified in the inquest had come to this court on behalf of the family of the deceased under Article 22(2) of the Constitution. Counsel submitted that the family of the deceased has come to court because the Attorney – General and DPP had not taken any action since the ruling of the inquest court was made.

Counsel submitted that this court could order the DPP to exercise his powers under Article 167 of the Constitution.

Mr. Okemwa for the state concurred that the learned magistrate in the inquest made an error.

This matter commenced as an inquest in Mwingi Senior Resident Magistrates court inquest case no. 16 of 2007 relating to the death of the deceased herein. At the

end of the inquest, the learned magistrate delivered a ruling on 15th November 2013 in which the magistrate stated as follows:-

“the circumstantial evidence demonstrated the deceased was indeed the victim of a criminal homicide. It is clear there are several of the prime suspects named earlier who had motive to harm the deceased. It is however unclear whether he was murdered by one or more persons, in the absence of direct evidence. What is beyonddoubt is that he met his death in the homestead and within the presence of the prime suspects Kalelu Kavusuki who may or may not have administered the vital blow, but at the very least acted as an accomplice to the killer(s) or an accessory after the fact. Be that as it may, there is clearly not much direct evidence to sustain a criminal charge and a civil claim for wrongful death maybe among the few available legal remedies. With these findings concerning the prime suspects culpability, the inquest file is recommended closed”.

It is from the above findings and conclusions of the inquest court, that I am now requested to exercise this court’s jurisdiction in revision.

I note that Mr. Okemwa on behalf of the DPP concurred with Mr. Nzili’s submissions. Counsel submitted that this court had revision powers under the Criminal Procedure Code. Counsel submitted that it was not clear why after finding culpability, the inquest magistrate suddenly changed course. In counsel’s view this court should declare the orders in the inquest as null, reverse the same, and issue directions.

Under Section 362 of Criminal Procedure Code, the High Court has powers to satisfy itself of the legality, correctness or propriety of any findings, sentence or

order recorded or passed or the regularity of any proceedings of a subordinate court, and make appropriate orders.

Having considered the matter, I agree with Mr. Nzili and Mr. Okemwa that the magistrate had no powers to recommend a civil claim for wrongful death under the provisions of 387 of Criminal Procedure Code. The Section 387(3)(4)&(5) provides as follows:-

(3)“if before or at the determination of the inquiry the magistrate is of the opinion that the commission by some known person(s) of an offence has been disclosed, he shall issue a summons or warrant for his or their arrest, or take such other steps as maybe necessary to secure his or their attendance to answer the charge and at the attendance of the person(s), the magistrate shall commence the inquiry denovo and shall proceed as if he had taken cognizance of an offence.

(4) if at the determination of the inquiry the magistrate is of the opinion that an offence has been committed by some person(s) unknown, he shall record his opinion and shall forthwith send a copy to the Attorney General.

(5) if at the determination of the inquiry a magistrate is of the opinion that no offence has been committed, he shall record his opinion accordingly”

The learned magistrate, in the ruling found that a number of people were connected to the death of the deceased, but that it was not known who among them was responsible for the fatal blow. He nontheless specifically mentioned Kalelu Kavusuki as an accomplice or an accessory after the fact to the killing of the deceased. The magistrate however expressed an opinion that he did not know the person who had committed the offence and recommended a civil claim for unlawful death and closed the file.

In my view the magistrate should not have recommended a civil claim by the family of the deceased. The law did not confer on him such powers. The magistrate should have recorded the findings on criminal culpability as well as his opinion that it was not specifically known who had killed the deceased and forwarded his opinion to the Attorney General, now Director of Public Prosecution, under Section 387(4) of the Criminal Procedure Code, for whatever action that Office would deem necessary to take.

Having found that the learned magistrate was wrong in recommending a civil claim and closing the file and since in my view there is no avenue for an appeal by the family of a deceased person from the decision of an inquest, in my view this courts review jurisdiction is called into play in order to do justice. I thus exercise the review powers of this court delete or vacate the magistrate’s order recommending a civil claim and closure of the file. Instead I order that based on the findings on criminal culpability the ruling together with the opinion of the magistrate as to who was responsible for the death be and is hereby forwarded to the Director of Public Prosecution for his necessary action.

Dated and delivered at Garissa this 2nd July 2015.

GEORGE DULU

JUDGE