[2023] KEHC 24000 (KLR)

Republic v Bwanadi & 2 others (Miscellaneous Criminal Case E005 of 2023) [2023] KEHC 24000 (KLR) (23 October 2023) (Ruling)

Neutral citation: [2023] KEHC 24000 (KLR)

Republic of Kenya

In the High Court at Kibera

Miscellaneous Criminal Case E005 of 2023

DR Kavedza, J

October 23, 2023

Between

Republic

Applicant

and

Ayub Omar Bwanadi

1st Respondent

Mohammed Omar Bwanadi

2nd Respondent

Kassim Ahmed Ali

3rd Respondent

Ruling

1. The Notice of Motion Application before me is dated 13th October 2023 and is premised on Article 24, 50(8), 159(1), 2(a) (b) (d) (e) of the Constitution, Section 4 (1), 2(c), 8 of the Victim Protection Act, Section 15, 16(a) and (b) of the Witness Protection Act (WPA). The Application has been made by the Director of Public Prosecution (DPP) on the grounds that the respondents are charged in Kahawa MCCR E055/2022 with receiving instructions for the purposes of terrorism and commission of a terrorist act under the Prevention of Terrorism Act, 2012. Further, that the respondents and the eye witnesses hail from Kizingitini Lamu County and it is therefore in the interest of justice to conceal the identity of the said witnesses to prevent them from suffering stigma in the community.

2. The application is supported by the Affidavit of No. 86401 Sgt Geofrey Busolo of the Directorate of Criminal Investigations (DCI) attached to the Anti-Terrorism Unit sworn on 13th October, 2023. In his Affidavit, he states that he is one of the Investigating Officers currently conducting investigations into the respondents who are facing charges related to killing PC Hesbon Okemwa, a police officer, Malik Athman Shee and Mohammed Famau, Assistant Chief and Chief respectively in October and December 2019. He added that the respondents fled the country to Tanzania in December 2019 after the death of the said persons in Mwajumwali, Lamu County. He further stated that they were arrested on 7th April, 2023 at Isiolo-Moyale and it is believed they were heading to Ethiopia to cross-over to Somalia undetected.

3. Additionally, that upon the arrest of the respondents, the investigation team travelled to Lamu to reconstruct the 2019 file but the locals at Mbwajumwali area in Lamu county were apprehensive they would be killed just like the chiefs and the police officer. He further averred that in September 2023, the investigation team returned to Mbwajumwali area where they convinced the witnesses to testify on condition that their identities would be protected. Lastly, he referred to the pre-bail report dated 24th May, 2023 and averred that since all the brothers in the Bwanadi family have been in conflict with the law, the community is fearful of them and without protection mechanisms during trial, the prosecution of the respondents will be highly prejudiced.

4. The applicant therefore seeks the following orders;“(i)That this application be certified urgent and be heard ex-parte at the first instance.(ii)That the witness statements be redacted (all identifying information) before being given to the respondents and that they be allowed to use pseudonyms and other witness protection measures during trial;(iii)That the criminal case against the Respondents be heard in camera and the press be restricted.”

5. I have considered the Notice of Motion application and the averments of the applicant. Article 50(1) of the Constitution provides for the right to a fair hearing. Article 50(2)(d) provides for the right to a public trial. However, Article 50(9) provides for the protection of victims of crime and witnesses, more so, vulnerable witnesses.

6. The protection of witnesses is specifically provided for under Section 16 of the Witness Protection Act which states as follows;“(a)The person named in the Application as a witness;i.was a witness to or has knowledge of an offence and is or has been a witness in criminal proceedings relating to the offence orii.is a person who because of his relationship to or association with a person to whom sub paragraph (i) applies may require protection or other assistance under this Act.(b)The life or safety of the person may be endangered as a result of his being a witness.(c)A memorandum of understanding has been entered into by the witness in accordance with Section 7 of the Act, and;(d)The person is likely to comply with the Memorandum of understanding.”

7. From the affidavit evidence before me, it is clear that the witnesses perfectly fall within the ambit of section 16 of the Act. The fact that the witnesses and the respondents were neighbours directly exposes them to a heightened state of vulnerability. The need to protect the witnesses is as important as the protection of the non-derogable right of the respondents to a fair trial. In criminal cases, without witnesses there can be no case. Placing both the competing rights on the scale of justice, I find that the respondents will not suffer any prejudice if the trial is held in camera or in closed session.

8. In his affidavit, Sgt Geofrey also sought orders that media reporting be restricted. Certainly, there’s no gainsaying that the media plays a significant role in disseminating information to the public, especially in cases of public interest. Media is the production of electronic and print media for circulation to the public. The public have a right of access to information and the media acts as an agent for the public by reporting matters of general public importance. However, Article 50(8) provides for exclusion of the press or other members of the public from any proceedings if the exclusion is necessary. I find that, given the nature of this case and the delicate security situation of the witnesses, who are not only familiar to the accused persons but also apprehensive of the accused persons’ families, which are feared by the community members, any exposure to the press would undoubtedly jeopardize their lives.

9. The applicant has also sought for orders that the witness statements be redacted before being given to the Respondents and that the witnesses should use pseudonyms during the trial.

10. In the case of Thomas Patrick Gilbert Cholmondeley v Republic [2008] eKLR, the Court of Appeal was asked to analyse the duty on the part of the prosecution to supply the accused with all the relevant material in its possession and to do so in advance of the trial to enable the accused to prepare his defence. The Court succinctly stated that:-“Of course in some cases, the prosecution may claim public interest immunity and the courts in Kenya will have to consider the provisions of the newly enacted Witness Protection Act, No. 16 of 2006. In certain circumstances, the courts in Kenya may well hold that it would not be in the interest of justice to disclose the names, address and occupation of a particular witness or witnesses. But their evidence would have to be disclosed for we cannot imagine a situation in which an accused person can be ambushed with totally new evidence and convicted thereon.”

11. Similarly, in this case I hold that the Respondents will ultimately have the evidence to be adduced at the trial availed to them before the witnesses are called to testify. The redacting of Witness Statements to exclude the witnesses' personal details such as witnesses’ names, addresses and other personal particulars, and the use of pseudonyms does not therefore amount to a contravention of the provisions of Article 50(2)(j), as this is one of the tenets accorded to witnesses under the Witness Protection Act.

12. Having so stated it is my view that the applicants should be accorded extra-protective measures not included in the application in order to prevent real harm to the witnesses.

13. It is not in doubt that one of the tenets of the right to a fair trial is for the accused person to confront his accuser by cross-examination, and this case is no exception. However, there are times when principles such as the right to confront an accuser in open court can be a barrier to justice. This includes situations where potential witnesses fear their physical identities being exposed. It has been averred that the witnesses initially harboured reservations about testifying in this case, and only consented when they were assured of protection and concealment of their identities. Indeed, their concerns are well-founded, particularly in light of their close proximity as neighbours to the accused persons.

14. It is therefore in the interest of justice and the public, that orders be issued to protect the witnesses. I accordingly, allow the application and grant ex parte orders in the following terms:a.The witnesses, AS, AM, BM, DO, FG, MA, RN and TS shall testify in camera or in closed session.b.The Statements of the said witnesses to be redacted before being supplied to the Respondents.c.The witnesses shall use pseudonyms to be decided upon by the DPP during testimony.d.The trial court, the prosecutors and the media to agree during pre-trial on the modalities of media reporting without jeopardizing the safety of the witnesses.e.The witnesses to use a separate entrance and exit from the court premises, as well as a separate door to access the court room.f.The Court Administrator to provide a separate sitting area for the witnesses other than that used by members of public and respondents.g.The witnesses to be allowed to disguise themselves in the manner the DPP shall deem fit.h.Voice distortion equipment to be availed to the witnesses.i.The trial court, the DPP and the defence counsel to agree during pre-trial whether members of public will be restricted to access the court room during the trial.j.The witnesses are at liberty to testify from a separate room within the court premises but their evidence to be transmitted audibly in open court.k.This file shall be kept under lock and key as shall be directed by the Head of Station Kahawa Law Courts.Orders accordingly.

RULING DATED AND DELIVERED VIRTUALLY IN ABSENCE OF THE PARTIES THIS 23RD DAY OF OCTOBER 2023. .............................D. KAVEDZAJUDGE