[2022] KEHC 1401 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CRIMINAL CASE NO. EO11 OF 2020

REPUBLIC............................................................................................................RESPONDENT

-VERSUS-

GEOFFREY OKUTO OTIENO..............................................1ST ACCUSED/RESPONDENT

AISHA JUMWA KATANA........................................................2ND ACCUSED/APPLICANT

RULING

Application

1. By an application brought under Certificate of Urgency dated 31st January 2022, the 2nd Accused/Applicant sought orders of the court pursuant to Articles 19, 22, 25, 27, 39, 48, 49, 50, 165, and 159 (2) of the Constitution of Kenya seeking that: -

a) The Court be pleased to certify that this matter is one that raises substantial questions of law under Article 165 (3) (b) and (d) and forward this matter to the Chief Justice for the empanelment of an even number of judges being not less than 3 to hear and determine the issues under controversy.

b) A declaration does issue that the commencement of murder trial before this court is a violation of the Applicant’s right to a fair trial under Article 25 (c) as it denies the accused the three levels of appeal in the unlikely event that she is convicted of the murder charges that she faces herein.

c) That a declaration does hereby issue that the commencement of these proceedings before this honourable court as opposed to the Magistrate’s Court that are numerically higher to the High Court is a threat to the Applicant’s right to a speedy trial and access to justice as guaranteed under Articles 27, 48, 50, and 159 (2) (a) and (b) of the Constitution.

d) A declaration does hereby issue that the Magistrate’s Court has the prerequisite jurisdiction to deal with murder cases in the first instance and thus there is no legal or statutory requirement for murder cases to be hears in the first instance in the High Court.

e) That this court be pleased to transfer and/or refer this murder trial before the Magistrate’s Court in Malindi for hearing and determination in the first instance as the court with appropriate territorial jurisdiction.

f) Cost of this application be provided for.

2. The Application was supported by the grounds on the face of the application and the affidavit sworn by Aisha Jumwa Katana, the 2nd Accused/Applicant herein as well as the holding in Charles Henry Nyaoke v Cabinet Secretary Ministry of Interior and Co-ordination of National Government and 4 Others [2020] eKLR.

Response

3. The 1st Accused filed a Replying Affidavit sworn on 7th February 2022 opposing the application and stating that circumstances of this case are different from the authority relied on by the Applicant and the averments in the Supporting Affidavit lack any legal and constitutional basis.

4. The 1st Accused stated that transfer of this matter to the magistrate’s court will mean that trials are started afresh. The 1st Accused confirmed that murder charges are tried by the High Court pursuant to the 1st Schedule of the Criminal Procedure Code and that choosing a court where he should be tried is tantamount to prejudicing the course of justice. He said that he would be prejudiced if the matter is moved to Malindi Court as he would be deemed to be an outsider.

5. Reuben Katana Mwamure, a nephew to the deceased person herein also swore an affidavit on 7th February 2022 opposing the application by the 2nd accused and said that the Applicant should not veer away from the hard truth that an innocent man lost his life and that she is being tried for the same. He said that the application is misconceived and an afterthought which needs to be dismissed as the adjournments in the matter have been occasioned by the Applicant/2nd Accused. He said that the conduct of the applicant in the matter clearly violates fair administrative action as enshrined in Article 47 of the Constitution and Article 50 (2) which requires trial to be conducted without undue delay.

6. Reuben Katana Mwamure states that the family members of the deceased have been left with no answers as to how a case that was registered 2 years ago is yet to be heard to date. He said that granting the application would be prejudicial to the family as they are keen on handling the matter expediently.

7. The State filed Grounds of Opposition dated 10th February 2022 and stated that the Applicant had not demonstrated that there exists a substantial question of law. It is also stated that the High Court has unlimited jurisdiction in criminal and civil matters as provided under Article 165 (3)(a) of the Constitution which jurisdiction is not subject to challenge by dint of Article 2 (3) of the Constitution. It is stated that the Applicant has failed to establish any breach of any of her constitutional rights and fundamental freedom to warrant grant of the reliefs sought. The prosecution stated that the Applicant is forum shopping and like the 1st Accused they confirmed that the case was lodged in Mombasa to safeguard the welfare of the accused persons.

Submissions

8. This application was canvassed by way of written submissions. The Applicant’s submissions dated 14th of February and filed on 15th February and the Victim’s family submissions dated 1st March and filed on 11th March 2022. The Applicant confined her submissions to the prayer seeking that this matter be forwarded to the Chief Justice for the empanelment of an even number of judges being not less than 3 to hear and determine the issues under controversy.

Analysis and Determination

9. Having considered the application dated 31st January 2022 together with the responses and accompanying submissions as well as the issues framed by the Respondent, this court’s view is as follows:

10. The prayers made by the 2nd Accused person are to the effect that this court finds and certifies that the trial herein raises substantial questions of law under Article 165 (3) (b) and (d) for the reason that the commencement of her trial in the High Court is a violation of her right under Article 25 (c) as it denies her the possibility of three levels of appeal in the circumstance that she is convicted of the murder charge. She also set a declaration that the proceedings in this court is a threat to her right to a speedy trial as guaranteed under Article 27, 48, 50, and 159 (2) (a) and (b) and she sought that her trial be transferred to the Magistrate’s Court at Malindi for hearing and determination.

11. At paragraph (f) of the grounds in support of the application, the applicant relied on the holding in Charles Henry Nyaoke v Cabinet Secretary Ministry of Interior and Coordination and Ntional Government and 4 Others [2020] eKLR.

12. In the Charles Henry Nyaoke’s Petition, the issues as can be seen from paragraphs 8 at page 3 to paragraph 29 at page 5 are as follows: -

“8. The petitioner is one of the accused persons in Republic vs Stephen Walter Nyakwaka, Richard Nunda Nyaoke & 2 Others, Kisumu High Court Criminal Case No.13 of 2017; where they are charged for murder contrary to Section 203 as read with Section 204 of the Penal Code.

9. The petitioner’s case is that he and other persons charged with murder suffered discrimination and unequal treatment before the law. He contends that he was denied equal protection and equal benefit of the law, as well as freedom from discrimination, therefore violating Articles 25 and 27 of the Constitution. The petitioner further states that any person aggrieved or dissatisfied by the decision of a magistrate’s court has a right of appeal to the High Court in the first instance, and to the Court of Appeal in the second instance, on matters of law. Conversely, an accused person tried before the High Court has only one level of appeal to the Court of Appeal. It is the petitioner’s case that the Constitution does not differentiate between cases tried before a high court and the magistrates court with regards to the rights of arrested and accused persons.

10. The petitioner contends that there is no jurisprudential basis for holding murder and treason trials in the High Court in the first instance, as opposed to commencing at the magistrates’ courts. Further, that there is nothing unique, special or of such a technical nature that the magistrates’ courts would be unable to try and determine those cases.

11. The petitioner further urged that the time taken to try cases before the High Court was longer compared to trials held before magistrates’ courts. He urged that such delay amounted to denial of access to justice guaranteed under Article 50 of the Constitution.

12. The petitioner contends that since magistrates’ courts are many in number, are decentralized, and devolved throughout the counties, the costs of trial are much lower since witnesses do not have to travel far. This, he says will result further in enhancing access to justice as guaranteed under Article 50 of the Constitution.

13. The petitioner states that all magistrates are well trained on the criminal law and procedure, and that the same procedure is applicable in both magistrates’ courts and the High Court.

14. In terms of jurisdiction to impose sentences, it is the petitioner’s case that the magistrates’ courts have jurisdiction to impose minimum and maximum sentences provided for by the law, including the death sentence, similar to the High Court. He urges that the range of sentences that can be meted on a convicted person by a magistrates’ court is similar to that by the High Court and that there was no justifiable reason for the murder and treason trials to be commenced in the High Court in exercise of its original criminal jurisdiction.

15. The petitioner states that trial of an accused person before the High Court as the court of first instance, denies an accused person the right to one further step of appeal; is discriminatory and a breach of Article 27 of the Constitution, as well as Article 7 of the Universal Declaration of Human Rights, and Article 3 of the African Charter on Human and Peoples’ Rights; that it gives preferential treatment to accused persons whose trials commence before the magistrates’ court; that it elevates murder and treason to be more serious offences, yet they attract the same sentence of death as can be imposed by the magistrates’ court; and, that it is not supported by any specific legal framework or policy.

16. The Petitioner states that pursuant to Section 204 of the Penal Code, the sentence provided for persons convicted of murder is death, and that the trial court has no discretion in sentencing with regard to the said offence.

17. The petitioner further avers that Sections 211 as read with 212 of the Penal Code provides that where a pregnant woman is convicted of an offence punishable by death, the sentence passed on her shall be life imprisonment.

18. The petitioner states that Section 3(1) of the Criminal Procedure Code provides that all offences under the Penal Code shall be inquired into, tried and otherwise dealt with according to the said Code. Subsection 2 provides that all offences under any other law shall be inquired into, tried and otherwise dealt with according to the said Code, subject to any enactment for the time being in force regulating the manner or place of inquiring into, trying, or otherwise dealing with those offences.

19. The petitioner further states Section 3(3) of the Criminal Procedure Code provides that notwithstanding anything in the said Code, the High Court may, subject to provisions of any law for the time being in force, in exercise of its criminal jurisdiction in respect of any matter or thing to which the procedure prescribed by the said Code is inapplicable, exercise that jurisdiction according to the code of procedure and practice observed by and before the High Court of Justice of England at the date of coming into operation of the said Code.

20. The petitioner further contends that Section 5 of the Criminal Procedure Code provides that:

“An offence under any law other than the Penal Code shall, when a court is mentioned in that behalf in that law, be tried by that court.

When no court is mentioned, it may, subject to this Code, be tried by the High Court, or by a subordinate court by which the offence is shown in the fifth column of the First Schedule to this Code to be triable.”

21. The petitioner avers that the First Schedule to the Criminal Procedure Code does not provide the court with jurisdiction to try murder cases.

22. The petitioner states that Article 2 of the Constitution establishes the Constitution as the supreme law of the Republic of Kenya which binds all persons and all State organs at both levels of government. He avers that the respondents have an obligation to respect, uphold and defend the Constitution.

23. The petitioner avers that the purpose of recognizing and protecting human rights and fundamental freedoms in Article 19 of the Constitution is to preserve the dignity of individuals and communities, and to promote social justice and the realization of the potential of all human beings. He states that the rights and fundamental freedoms provided in the Bill of Rights belong to each individual and are not granted by the State, do not exclude other rights and fundamental freedoms not in the Bill of Rights but recognized by law, except to the extent that they are inconsistent with Chapter 4 of the Constitution, and are subject only to limitations contemplated under the Constitution.

24. The petitioner states that by virtue of Article 25 of the Constitution, the right to a fair trial cannot be limited. The petitioner further states that Article 27 of the Constitution provides for equality of all persons before the law and guarantees freedom from discrimination. This right is also enshrined under Article 7 of the Universal Declaration of Human Rights as well as Article 3 of the African Charter on Human and Peoples Rights.

25. The petitioner avers that every person has inherent dignity and right to have it respected and protected as enshrined under Article 28 of the Constitution.

26. The petitioner contends that Article 48 of the Constitution places the onus of ensuring access to justice for all persons on the State organs, which includes the respondents in the present petition.

27. The petitioner states that under Articles 94 and 95 of the Constitution, Parliament is mandated to make laws that accord with the aspirations of the people of Kenya

28. The petitioner states that the respondents have a mandate jointly and severally to ensure that the laws of Kenya are aligned with the Constitution, and that any law that is inconsistent with the Constitution is amended or re-enacted so as to align it to the Constitution. The petitioner contends that the respondents also have a duty to participate in policy development which informs the enactment of legislation and formulation of rules which facilitate implementation of the Constitution.

29. The petitioner further states that the respondents, jointly and severally, have a duty and responsibility to ensure that all accused persons are treated equally before the law, which duty they have failed to uphold.”

13. This petition was heard by a three-judge bench made up of Lesiit, Kimaru and Kimondo, JJ.

14. On the issue that initiation of murder trial at the High Court violates the Constitution or other statutes they set out the jurisdiction conferred under Article 165 (3)(c), Sections 347, 348, 362, and 364 of the Criminal Procedure Code and after giving the history and taking into consideration the context in which murder and treason charges were heard in the High Court, the learned trial judges concluded at paragraphs 107, 108 and 109 as follows: -

“107. It is therefore clear that the necessity of trying murder charges before the High Court was imposed by colonial expediency which spilled over to post independence Kenya. Despite trials by jury being abolished in 1963, trial of those charged with murder continued to be at the High Court with the aid of assessors. We assert, with the benefit of history, that the fact that those charged with murder are still tried in the High Court is a historical accident without any legal justification or logic.

108. Furthermore, we are alive to the fact that there are 125 magistrates’ courts stations which are decentralized, and devolved throughout the counties. At the time of this judgment there were 447 magistrates compared to only 82 judges of the High Court. Initiating murder trials at the magistrates’ courts will significantly lower the costs of the trial, reduce the distance to court and expedite delivery of justice.

109. This will result in better realization of access to justice which is a fundamental right guaranteed by Articles 48, 50 and 159(2)(a) and (b) of the Constitution.”

15. On denial of one step of appeal where murder trial is commenced from the High Court, the conclusion of the three-judge bench concluded as follows: -

“114. We also find that there are also other disadvantages: For instance, under Article 50 (6), persons convicted in the magistrates’ court can approach the High Court for a re-trial. In Geoffey Mwangi Githinji v Republic, [2015] eKLR, the petitioner was convicted for robbery with violence by the Chief Magistrates’ Court and sentenced to life imprisonment. The High Court ordered for a retrial upon discovery of new evidence, an Occurrence Book Report from another police station, which contained some exculpatory material. That kind of remedy is obviously lost for murder suspects at the High Court.

115. We must emphasize that the mere origination of the murder trial at the High Court is not unlawful. As we have seen, under Article 165, the High Court has original and appellate jurisdiction in both civil and criminal matters. We are also alive to the fact that appeals can be limited by law. A good example is the limitation of number of appeals in some case types; or, limiting a second appeal to only points of law.

116. But the point to be made is that initiating a murder trial in the High Court compromises an essential element of the right to a fair trial. We thus readily find that under the hierarchy of courts provided by Articles 162 and 169 of the Constitution, a murder convict is denied a vital step in the appellate chain.

117. Article 27 (6) of the Constitution obligates the State to give full effect to the realization of the rights for equal protection and equal benefit of the law guaranteed by the Article. Since Article 25 provides that the right to a fair trial cannot be derogated from under any circumstances, we are minded to direct the State to take appropriate legislative and other measures including appropriate policy interventions to redress the disadvantage currently experienced by murder suspects.”

16. On alleged violation of other constitutional provisions, the three-judge bench found that as between the Petitioner and others charged with murder, unfair discrimination does not arise although there is some distinction or differentiation that arises within the trials of the High Court and the Magistrate’s court as a result of the former having original jurisdiction under Article 165 but such differentiation cannot be equated with discrimination. It was acknowledged that there are categories of cases that should be ideally tried at the High Court such as treason and related insurrections.

17. Of relevance are paragraphs 131 and 134 in which it was concluded as follows: -

“131. Fifthly, it is true that initiation of murder trials at the High Court is not supported by any specific legal framework or policy or logic. A close reading of sections 3, 4 and 5 of the Criminal Procedure Code and the First Schedule leaves no doubt that the High Court was to try murder charges by default. As to whether the policy that informed the law is still sound is a matter that we have addressed elsewhere in this judgment. But it would be a misnomer to say that there was a specific legal framework or policy in place that deserves to be up held by this court.

134. Nevertheless, we take judicial notice that murder trials take an unduly long time to be concluded at the High Court. Some of the reasons have to do with other players in the justice chain; and, the limited number of judges’ vis a vis the volume of criminal and civil cases filed annually.”

18. In conclusion, the three judge bench ordered that the 1st, 2nd, 3rd and 5th Respondents shall jointly and severally within 18 months from 27th November 2020 take such steps are as necessary to align Sections 3, 4, and 5 of the Criminal Procedure Code and the subsidiary legislation, regulations and rules thereof to the Constitution and in particular to Article 27, 48 and 50 thereof.

19. The Applicant’s application dated 31st January 2022 is similar in all fours to the Petitioner’s case in Petition No. 7 of 2018 and the finding of this court is that the issue that the Applicants are seeking to be certified as raising substantial questions of law under Article 165 (3) (d) and (d) has already been resolved conclusively by a court of competent jurisdiction and she cannot be allowed to relitigate the same again.

20. Timelines were given for the Respondents to take certain steps to align Sections 3, 4 and 5 of the Criminal Procedure Code with Articles 27, 48 and 50 of the Constitution and the said timelines have not lapsed.

21. In conclusion, the application seeking that the matter herein be certified as raising substantial questions of law is disallowed with no orders as to costs.

DATED, SIGNED AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS, THIS 17TH DAY OF MARCH 2022

HON. LADY JUSTICE A. ONG’INJO

JUDGE

In the presence of: -

Ogwel- Court Assistant

Ms. Kambaga for the Respondent

Ms. Okumu and Mr. Katete Advocates for the 1st Accused/Respondent

Mr. Magolo, Mr. Osoro and Mr. Wambui Advocates for the 2nd Accused/Applicant

HON. LADY JUSTICE A. ONG’INJO

JUDGE