[2019] KEHC 11347 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL DIVISION

CRIMINAL REVISION NO.70 OF 2017

REPUBLIC………………………………………………………………………........ APPLLICANT

VERSUS

EVANS ANYIMU AMINGA…………………………………………………………. RESPONDENT

RULING

The prosecution was aggrieved by the decision of the trial court which ordered the release of an exhibit during the pendency of the trial. In the application for revision, the prosecution states as follows:

“From the aforesaid order, the trial magistrate made an order of release of an important (main) exhibit, namely Hematology Analyzer Machine to the accused person allegedly as his implement of trade inspite of the fact that the accused did not seek for the said order in his application and submissions in court. The said order was made without any prompting from the accused person as confirmed from the annexed copies of the proceedings. It is worth noting that please (sic) was taken by another court and on the same date Honourable Oketch from another court ordered for the release of the exhibit.”

The prosecution further stated that:

“Following the release of this exhibit, the prosecution’s case is naturally weakened as the exhibit is at the core of the prosecution’s case. We find this directions calculated and/or hell bent on frustrating the successful for the prosecutions (sic) of this case. The said Hon. W. Oketch has now given directions that he shall proceed with the matter in the absence of the said exhibit and has given the prosecution ten (10) days to challenge those orders otherwise he shall proceed with the matter.”

The application is opposed. The Respondents swore a replying affidavit in opposition to the application. He states that the grounds that the Applicant has put forward in seeking revision of the orders issued by the trial court was misplaced, misleading and untenable. He gave a narration of the events that took place in court prior to the issuance of the order of 26th September 2014. He submitted that the issue of the release of the Hematology Analyzer Machine was never canvassed at the time and it only became an issue after the prosecution had amended the charge sheet. In the premises therefore, it was the Respondent’s contention that the application for revision was diversionary and meant to frustrate the trial before the trial magistrate’s court. He urged the court to dismiss the application.

During the hearing of the application, this court heard oral rival submission made by Ms. Atina for the State, Mr. Githinji for the complainant and Ms. Odiya for the Respondent. Ms. Atina submitted that the trial court ordered the release of an exhibit which the Respondent alleged was his tool of trade. The exhibit was ordered released despite the fact that the same had not been produced as an exhibit by the prosecution. When the prosecution sought the production of the exhibit during trial, the Respondent produced another exhibit and not the one that was released to him by the trial court. Ms. Atina submitted that the trial court appeared to be biased against the prosecution. She speculated that the animosity to the prosecution was on account of the fact that the trial magistrate was a previous employee of the complainant. In the premises therefore, she asked the court to order the Respondent to return the exhibit so as to enable the prosecution to present its case before the trial court.

Mr. Githinji for the complainant supported the prosecution’s application. He urged the court to order the return of the exhibit and further for the recusal of trial magistrate. Ms. Ondiya for the Respondent opposed the application. She submitted that the application appears to be motivated by the fact that the prosecution is fighting the judicial officer and does not want the judicial officer to try the case. The prosecution had made an application for recusal from the case of the trial magistrate. The application was however dismissed. The prosecution had not appealed against the decision. The Respondent was not opposed to the case being heard by another magistrate because he was of the view that the interest of justice will be served. As regard the issue of the release of exhibit, she submitted that the Respondent applied for the release of the exhibit because the same was a tool of trade. The prosecution did not object to the application. She wondered why the prosecution was now claiming that the trial court had ordered the release of the machine without any application being made. She submitted that the Respondent presented to court the machine when he was called upon to do so but the prosecution disowned the same. The Respondent saw mischief in the conduct of the prosecution. She urged the court to dismiss the application.

This court has carefully considered the rival submission made by the parties to this application. It was clear from the pleadings and the submission made that what the prosecution really craves for is the recusal of the trial magistrate from hearing the case. The prosecution’s application to have the trial magistrate recuse himself from the case was unsuccessful. Since that application was canvassed and dismissed, it was apparent from the proceedings that there has been tension between the trial magistrate and the prosecutor. Since the Applicant, the complainant and the Respondent appear to agree that it would be in the interest of justice for the trial to be concluded before another magistrate, this court directs that the trial shall be concluded before another magistrate other than Hon. Oketch (RM). If there is truth in the allegation made by the prosecution to the effect that the trial magistrate was previously employed by the complainant before his appointment as a judicial officer, it was inadvisable for the trial magistrate to proceed with the case because suspicion of bias or lack of fairness may arise in such situation whether such suspicion is justified or not. This may be despite of the fact that the trial magistrate is conducting the case in accordance with his judicial oath of office.

In the premises therefore, the order that commends itself to this court is to direct that the trial proceeds before another magistrate other than Hon. Oketch (RM). The Applicant shall be at liberty to renew the application in relation to the exhibit before that court. The original court file is ordered returned to Makadara Chief Magistrate’s Court for trial and disposal. It is so ordered.

DATED AT NAIROBI THIS 16TH DAY OF MAY 2019

L. KIMARU

JUDGE