[2020] KEHC 636 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MALINDI

CRIMINAL REVISION NO. 76 OF 2018

REPUBLIC..............................................................................APPELLANT

VERSUS

COSMAS KIMWEL OMOYO ..........................................RESPONDENT

Coram: Hon. Justice R. Nyakundi

Mr. Alenga for the state

Respondent in person

RULING

The state vide a letter dated 28. 11. 2018 under Section 362 of the Criminal Procedure Code seeks to move the Court to call for a review of the order of the Learned trial Magistrate for withdrawal of the charge in Criminal Case No. 31 of 2018. The prosecution counsel purposed in his letter that he required of the Court to call for the record and examine the correctness, propriety and regularity of the Ruling and subsequent orders by the trial Court.

The application is supported by various annexures which constitutes original factual background and the evidence intended for use by the prosecution. In essence the prosecution counsel submits that the withdrawal was an error and in breach of the principle of non-disclosure by the complainant. It was also alleged that the withdrawal of the charge by Cosmas Kimwei Omayo as the general manager, Nairobi Business Promotions Ltd was done without authority as per the letter to that effect dated 13. 11. 2018 and 19. 11. 2018. That it was a mistake and act of misrepresentation for Mr. Omayo to have purported to withdraw the charge without authority of the complainant.

The question is whether the order made by the trial Court was improper, irregular, unjust and or incorrect.

The Law

The hallmark of discretionary power of the Court is permissive under Article 165 (6) and (7) of the Constitution which provides interalia: “that the High Court has supervisory jurisdiction over the subordinate Courts and over any person, body or authority exercising a judicial or quasi-judicial function but not over a superior Court. For purposes of clause (6), the High Court may call for the record of any proceedings and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.”

Section 362 of the Criminal Procedure Code is to the effect “that 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 distinction between exercise of proper jurisdiction and other questions can be strongly emphasized in the foregoing discussion. In Hitila v Uganda {1969} 1 EA 219held that:

“In exercising its power of revision, the High Court could use its wide powers in any proceedings in which it appeared that an error material to the merits of the case or involving a miscarriage of justice had occurred. It was further held that the Court could do so in any proceedings where it appeared from any record that had been called for by the Court or which had been reported for orders or in any proceedings which had otherwise been brought to its notice.”

The Anismic case v Foreign Compensation Commission {1969} 2 AC 147 Lord Reidheld:

“It has sometimes been said that it is only where a tribunal acts without jurisdiction that its decision is a nullity. But in such cases the word jurisdiction has been used in a very wide sense, and I have come to the conclusion that it is better not to use the term except on the inquiry in question. But there are many cases in which although the tribunal had jurisdiction to enter on the inquiry it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the inquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the prosecution giving it power to act so that it failed to deal with the question remitted to it and decided some question which has not remitted to it. It may have refused to take into account something it was required to take into account. If it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account. I do not intend this list to be exhaustive. But if it decides a question remitted to it for decision without correcting any of these errors, it is as much entitled to decide that question wrongly as it is to decide it rightly.”

In the third case Baddmigton v British Transport Police {1999} 2 AC 143, at 154the Court stated interalia:

“the fundamental principle is that Courts will intervene to ensure that the powers of public decision making bodies are exercised lawfully. Irvini L. C. further observed: “the historic distinction between error of Law on the face of the record and other error of Law. It did so by extending the doctrine of ultra vires, so that any misdirection in Law would render the decision ultra vires and a nullity.”

The Court of Appeal went on to say in EV. Home Secretary {2004} PL 793contains something less on error of material fact. The general field of inquiry is for the reviewing Court to consider that:

“The time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of Law, at least in those statutory contexts where the parties share an interest in co-operating to achieve the correct result. Without seeking to lay down a precise code, the ordinary requirement for a finding of unfairness are: First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been established in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant or his advisers must not have been responsible for the mistake. Fourthly, the mistake must have played a material not necessarily decisive part in the tribunals reasoning.”

In the instant case, a question arose in the course of the proceedings in Criminal Case No. 31 of 2018 which necessarily involved a wrong party seeking leave of the Court to withdrawal the charge under Section 87 (G) of the Criminal Procedure Code. It follows therefore in the present case the prosecution counsel placed reliance on the statement of Mr. Omayo to apply for withdrawal of the charge. The mischaracterization of the complainant – a key witness to the charge filed by the prosecution empowered the trial Court to consent to the application.

First, there was non-disclosure of material facts notwithstanding the exercise of jurisdiction by the trial Court. Secondly, the existence of facts required to be ascertained involved in any particular case an authorized officer had the authority to apply for withdrawal under Section 87 (a) of the Criminal Procedure Code.

Therefore, the jurisdiction exercised by the trial Court fell in error on account of mistake, non-disclosure and misrepresentation. That step taken by the trial Court which purported to have the charge withdrawn was based on defect which formed the core of the decision making process.

In the light of these factors, it is evident that there is a legitimate basis under the ambit of supervisory jurisdiction in Article 165 (6) (7) of the Constitution and Section 362 of the Criminal Procedure Code to set aside the order for withdrawal as being a nullity.

Accordingly, the Criminal Case No. 31 of 2018 is hereby remitted to the Chief Magistrate Malindi to have it start denovo.

It is so ordered.

DATED, SIGNED AND DELIVERED AT MALINDI THIS 3RD DAY OF DECEMBER 2020

............................

R. NYAKUNDI

JUDGE

In the presence of:

1. Mr. Alenga for the state

2. Respondent in person