[2022] KEHC 1718 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CRIMINALREVISIONCASEE330 OF 2021

REPUBLIC..................................................................................APPLICANT

VERSUS

ABDULRAZAQ SALEH OKUMU......................................RESPONDENT

RULING

The Republic, has filed for a revision of the ruling and orders issued by the Hon. Martha Nanzushi on 23. 6.2021 in criminal case no. 1269/2019. The said application, brought by under a certificate of urgency, basically prays;

i) THAT this honourable court do determine the correctness, legality or propriety of the proceedings leading to the ruling and order by the court denying the prosecution any further adjournment or any witness summons considering the history of the matter and despite sufficient grounds having been laid by the prosecution and the investigating officers on oath why the other witnesses had not testified and the importance to have the summons issued to the remaining witnesses.

ii) THAT this court determines the correctness, legality or propriety of the proceedings. Leading to the ruling and order issued on 23. 6.2021 by the court closing the prosecution case prematurely without giving cogent reasons for such a drastic action and whether there is any provision of law in Kenya that grants courts the authority to take over and exercise the prosecution’s case and if so, whether in the circumstances, that drastic order was called for and its regularity and or correctness considering the provisions of Articles 157(6)(c) as read with Article 157(8) in the peculiar circumstances of the case.

iii) THAT this court do examine the correctness, legality or propriety of the entire proceedings in this case and the manner the court has conducted itself throughtout the proceedings and determine whether the court upheld the principle of equality of arms between the 2 parties involved bearing in mind that the delay in hearing and final disposal of the matter occasioned by developments that were beyond prosecutions control attributable to force majeure brought about by the ripple effects of covid – 19.

iv) Whether the said refusal by the court to grant adjournment to the prosecution for the reasons that the case was 3 years old and amounted to what the court has termed as a backlog according to the judiciary active case management is a ground for closing a prosecution case despite the peculiar circumstances surrounding this case including but not limited to adjournment by the defence.

By consent of the parties this application was canvassed by way of written submissions. The applicant’s submissions detailed the history of the case before the trial court declaring the various reasons for which the case has had to be adjourned. Counsel relied on Article 50 of the constitution on fair hearing. That same implies that both parties should be accorded the same right. And that a trial court should endeavor to have any matter that is before it concluded in its most reasonable conclusion.

In opposing this application, it was submitted on behalf of the Respondent that the application is overtaken by events as the Respondent was duly acquitted under section 210 of the Criminal Procedure Code. that this would amount to a reversal of an order of acquittal. Counsel went on that in making the applications for adjournment, the prosecution side failed to show any evidence to support the grounds for non-attendance of the witnesses. That the matter came up 14 times out of which the prosecution was responsible for an adjournment, and in fact got the last adjournment on 7. 4.2021. Further, that the complainant, Jagdish P. Shah has never testified since 1. 8.2019.

Counsel went further that order section 364(1)(b), an order of acquittal is exempt from review. He relied on Republic Martha Wambui Ngatia (2019)eKLR,and DPP Versus Joseph Murimi Mugwera (2020)eKLR, in which the court made the same holding. It was urged that this application be dismissed.

I have considered the submissions of both sides. This application is brought under this courts revisionary powers under section 362 of the Criminal Procedure Code. the said section reads;

“The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.”

The order aggrieved of herein are of the Honourable M. A. Nanzushi, PM, dated 22. 7.2021. In its material part, the order reads;

“I find that prosecution has not dutifully discharged their mandate in establishing a prima facie case, whenever doubt arises, benefit goes to the accused. I hereby acquit the accused under section 210 of the Criminal Procedure Code.”

This order was therefore an order of acquittal of the Respondent. The issue that arises is therefore whether this court in the exercise of its powers of revision can, alter or revise the orders aggrieved of in this matter.

The powers available to this court on revision are well captured under section 364 (1)(b) that;

a) In the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 354, 357 and 358 may enhance the sentence.

b) In the case of any other order other than an order of acquittal, alter or reverse the order.

The order we are dealing with in this matter are orders of acquittal under section 210 of the Criminal Procedure Code. a plain reading of section 364(1)(b) clearly excludes orders of acquittal from consideration by the High Court exercising its powers of revision. I accordingly therefore associate myself with the finding of the Hon. Justice J. N. Mulwa in DPP Versus Joseph Murimi Mugweru (2020)eKLR, cited by the respondent that;

“That revisionary jurisdiction exists in all orders, interlocutory or final of the subordinate court. Save that an order of acquittal may not be revised.”

The upshot of this, is that this court has no mandate to apply its powers or revision to revised or alter the order of the Honourable Principal Magistrate issued on 22. 7.2021. this application lacks merit and is accordingly dismissed. Order accordingly.

D. O. OGEMBO

JUDGE

9. 3.2022.

Court:

Ruling read out in court (on-line) in presence of Ms. Buchocho for Mr. Mugalu and Ms. Kimani for the state.

D. O. OGEMBO

JUDGE

9. 3.2022.