[2022] KEHC 318 (KLR)

Republic v Chief Magistrate’s Court Kiambu & another; Gathanju & 2 others (Interested Party) (Criminal Revision 352 of 2020) [2022] KEHC 318 (KLR) (5 May 2022) (Ruling)

Neutral citation: [2022] KEHC 318 (KLR)

Republic of Kenya

In the High Court at Kiambu

Criminal Revision 352 of 2020

MM Kasango & MM Kasango, JJ

May 5, 2022

Between

Republic

Applicant

and

Chief Magistrate’s Court Kiambu

1st Respondent

Attorney General

2nd Respondent

and

David Riitho Gathanju

Interested Party

James Muiruri

Interested Party

Peter Mwangi

Interested Party

(Being a revision of the ruling of Hon. S. Atambo, SPM delivered on 30th October, 2020 in Kiambu CM Criminal Case No. 1667 of 2017)

Ruling

1. Prosecution has invoked Article 157, 165(6) of the Constitution and Section 362 of the Criminal Procedure Code in its Notice of Motion application dated 9th November, 2020. By that application, prosecution seeks that this Court does call for an examine the record of the proceedings of Kiambu Chief Magistrate Criminal Case No. 1667 of 2017 made on 30th October, 2020 and for this Court to satisfy itself on the correctness, legality and propriety of that order.

2. In the subject case before the Kiambu Chief Magistrate’s Court, the 1st to 3rd interested parties are facing a charge of conspiracy, of theft by servant and charges of forgery. Plea was taken before the trial court on 18th October, 2017 and again on 22nd November, 2017 when there was consolidation of two case files.

3. The prosecution witness No. 1 (PW1) testified in chief on 2nd July, 2019. That witness was cross examined upto 30th October, 2019 on which date the prosecution requested for time to prepare for re-examination. The trial court allowed that application. But on the next hearing date on 4th February, 2020 prosecution informed the trial court that there were further directions on the case from the Director of Public Prosecutions (DPP). The prosecution did however re-examine PW1 on 12th February, 2020.

4. The trial was interrupted by the scaling down of court proceedings due to COVID-19 pandemic in most of the year 2020. When the case was before court for mention on 29th September, 2020 prosecution applied to withdraw the case under Section 87(a) of the Criminal Procedure Code. The withdrawal was opposed by the interested parties and it is the Ruling of the trial court of 30th October 2020 declining that withdrawal which is the subject of this revision matter.

Analysis and Determination** 5. The prosecution sought to withdraw the case against the interested parties under Section 87(a) of the Criminal Procedure Code. That Section provides:-“In a trial before a subordinate court a public prosecutor may with the consent of the court or on the instructions or the Director of Public Prosecutions, at any time before judgment is pronounced, withdraw from the prosecution of any person and upon withdrawal –(a)if is made before the accused person is called upon to make his defence, he shall be discharged but the discharge of an accused person shall not operate as a bar to subsequent proceedings against him on account of the same facts,(b)if is made after the accused person is called upon to make his defence he shall be acquitted”

6. It will be noted that although the prosecution under that Section may withdraw from prosecution of any person, such withdrawal is however subject to the consent of the trial court.

7. Similarly, under Article 157(8) of the Constitution, the DPP may not discontinue a prosecution without permission of the court. It follows that although DPP was granted wide and far reaching powers such as to direct Inspector General of the National Police Service to investigate any criminal conduct; to institute and undertake criminal proceedings against any person; and to take over or discontinue at any stage before judgment criminal proceedings, the people of Kenya by Article 157(8) reserved discretion to the court to either grant or deny permission to DPP to discontinue a prosecution.

8. The prosecution in seeking to withdraw the case against the interested parties informed the trial court as follows:-“Received instructions from the DPP to cause (sic) for withdrawal owing to discovery of new evidence and witness not considered. That file be relooked afresh. We seek to withdraw under Section 87(a) CPC.”

9. The application to withdraw was vehemently opposed by the interested parties some of the submissions made in opposition to the prosecution’s application to withdraw the case were that to allow the withdrawal would leave the interested parties having “a yoke on their neck,” that the prosecution should continue and prosecute its case and that the interested parties had their social and religious standing affected by the case.

10. The trial court by its Ruling in part had this to say:-“… it is the court’s business to control the prosecution when the prosecutor acts improperly not in the interest of justice acts beyond his powers vested by the constitution on carrying out some arbitrary objective under the guise of discharging the function of the office of the prosecutor…”

11. The trial court rejected the prosecution’s prayer to terminate the criminal trial.

12. Section 87(a) and Article 157(8) affords the court power in exercise of its discretion to either permit or disallow withdrawal of a prosecution. The prayer for revision which was invoked by the prosecution is vested in the High Court under Section 362 of the Criminal Procedure Code which principally is for the High Court to satisfy itself as the correct, legality and propriety of any finding, sentence or order recorded or passed and as to regularity of any proceedings of any subordinate court.

13. The application to review the trial court’s order was supported by the affidavit of Donnex O. Ogira a prosecution Counsel with the DPP. He deponed that the trial was fixed for hearing but could not proceed because of the scaling down of court’s proceedings due to the COVID-19 pandemic. That in the month of June, 2020 the deponent received instructions from DPP to withdraw the prosecution’s case under Section 78(a) to facilitate re-investigation of the case. The deponent stated thus, in his affidavit:-“That it is the opinion of the Director of Public Prosecution that there is need to have proper investigation in the circumstances surrounding this case and direction were given to the Inspector General of Police on 16th June, 2020 for such re-investigation.”

14. The interested parties filed affidavits opposing the prosecution’s prayer for revision of the trial court’s order. The interested parties are concerned that the prosecution has had in its custody the evidence of the case for 3 years since 2017, and in that time had failed to identify the discrepancies in the evidence. That the interested parties are entitled to fair hearing and expeditious disposal of the case and the withdrawal of the prosecution after three years they stated was a violation of their constitutional rights.

15. I have considered the parties’ submissions and authorities. In the case Republic Vs. Stanley Kihito(2020) eKLR the court stated:-“17. In my opinion, where the court declines to consent to a withdrawal under Section 87A of the Criminal Procedure Code, it must have clear and cogent reasons because such declination of consent simultaneously amounts to the curtailment of the DPP’s constitutional power of withdrawal under Article 157 (6) (c) and (7) of the Constitution.”

16. The trial court by the impugned Ruling considered that the action to withdraw prosecution’s case would not advance the course of justice. The court also stated that if indeed prosecution had new evidence to adduce there was a procedure by which it could introduced such evidence. Indeed, that was the holding in the caseGeorge Taitumu Vs. Chief Magistrate’s Court, Kibera & 20 Others (2014) eKLR thus:-“I would also add that DPP and the Police are not prevented from continuing investigations or even receiving new evidence once the accused has been charged and in the course of trial. The duty of the prosecutor is bring the new information and evidence to the attention of the accused and for the court to give the accused the opportunity to interrogate the new evidence and adequate time to prepare his defence.

17. In exercising the powers conferred by the Constitution, DPP is required to have regard to the public interest, the interest of the administration of justice and the need to prevent and avoid abuse of legal process. Did prosecution bear the above in mind in seeking to withdraw the prosecution?

18. Plea was taken by the trial court on 18th October, 2017. Prosecution opposed the prayer by interested parties to delay plea taking in order to engage in negotiated settlement of the case. Prosecution in opposing the prayer to delay plea taking intimated its readiness to proceed with the trial. The case was thereafter adjourned severally. On the whole, those adjournments were as a result of the prosecution wishing to amend the charge and another time in order to facilitate prosecution obtain DPP’s further directions. The trial court faced with numerous application to adjourn stated thus in one of its Rulings:-“This Court has bent backwards and accommodated the prosecution and counsel watching brief for complainant for the last 2 years without the case taking off for one reason or the other.”

19. It was not until 2nd July, 2019 that the trial commenced when PW1 was called to testify.

20. It is in the light of the above background the prosecution sought to withdraw the prosecution’s case. In the case George Taitumu Vs. Chief Magistrate’s Court, Kiebera & 2 Others (supra) the court stated the Magistrate’s court when called upon to consider an application to withdraw a prosecution makes it decision in exercise of its discretion. This is what was held in that case:-“Section 87(a) of the CPC gives the learned magistrate broad discretion to accept or reject an application for withdrawal of charges presented by the prosecutor. In light of Article 157(11) of the Constitution such discretion has to be exercised judiciously taking into account the facts of each case and in particular whether the application is brought in the public interest, the interests of administration of justice and the need to prevent and avoid an abuse of the legal process.”

21. I have considered the application before court from 2017 when the interested parties took plea, the prosecution only called one witness PW1 on 2nd July, 2019. Prosecution failed to inform the trial court why it was necessary to withdraw its case under Section 87(a) when only one witness had testified. Prosecution failed to state what prejudice it would suffer if withdrawal was not permitted. To seek to withdraw a prosecution that has hung on the heads of the interested parties 3 years after taking plea, to this Court, smacks of lacks of the interest of administration of justice. Prosecution has engaged the trial court in mentions of the case and hearing of PW1 for over 2 years, prior to the outbreak of COVID-19 pandemic and the prosecution cannot be permitted to withdraw the case and in all probability, re-arrest and charge again the interested parties. That would be involving the trial court and the interested parties in non-ending musical chairs activity. All that activity is on the basis that the DPP wishes to reinvestigate the case. I cannot find any lack of correctness, illegality or impropriety on the part of the trial court by its Ruling. The trial court properly exercised its discretion in disallowing the withdrawal of the prosecution’s case.

22. In view of the above, I am satisfied the trial magistrate proceeded and applied the law correctly. There is no basis for revising the trial court’s order. The notice of motion dated 9th November, 2020 is dismissed.

23. I order the Kiambu Criminal Case No. 1667 of 2017 to be mentioned before the Kiambu Chief Magistrate on a date to be fixed for directions on its further hearing.

RULING DATED AND DELIVERED AT KIAMBU THIS 5THDAY OF MAY, 2022. MARY KASANGOJUDGECoram:Court Assistant : MauriceFor DPP : - Mr. KasyokaFor : Davit Riitho: Mr. NjugunaFor James Muiruri : Mr. Njuguna HB Mr. KangahiFor Peter Mwangangi : Mrs. Odongo H/B Shadrack WambuiRULING delivered virtually.MARY KASANGOJUDGE