[2017] KEHC 2881 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

CRIMINAL REVISION NO. 50 OF 2017

REPUBLIC ………………………………........…. APPLICANT

VERSUS

GEORGE MANYANGE BAGWASI ………........RESPONDENT

RULING

The State filed the Notice of Motion dated 31st August 2017 seeking to stay proceedings in Criminal Case No. 1174 of 2015 pending the hearing and determination of this application and for this court to revise, review, vary and/or set aside the ruling of the trial magistrate refusing an adjournment to it.

The application is premised on grounds that -

1. “THAT the trial court did not consider the provisions of sections 145 and 146 of the Criminal procedure code which provides for compelling of witnesses who are unwilling to attend court and testify resulting to the prosecution closing their case prematurely.

2. THAT the trial court failed to consider that the prosecutions application to have the two witnesses compelled to attend court was made after that witness had confirmed she would attend court and testify then changed her mind without any justifiable reasons rendering her actions malicious.

3. THAT the trial court erred in law by stating that the prosecution ought to have made the application in the earlier proceedings yet that witness had confirmed he would attend court on that day and had even requested to be directed to court hence that was the opportune time for the application for warrants to compel the witness to attend court and testify.

4. THAT the trial court failed to consider that the defence agreed with the sentiments by the prosecution counsel that the two prosecution witnesses were not willing to attend court after having been requested severally thus rendering them compellable witnesses.

5. THAT the trial court failed to consider the application by the state that the witnesses they intended to compel were key witnesses in the prosecution's case.

6. THAT the trial court failed to take into consideration that itcontributed to the misfortune of the prosecution by adjourning the case on its on motion on the ……. when the prosecutions main key witness whom they sought to compel was present and willing to testify and who developed cold feet on that day after being referred to as an accomplice by the defence and never appeared in court again after the adjournment.

7. THAT the trial court failed to consider that the case is one of public interest taking into consideration the charges the accused is facing and the nature of the exhibits involved and the effect the orders denying the prosecution a chance to compel the key witnesses had on the case.

8. THAT the trial court failed to consider that the defence had also adjourned the matter on several occasions when prosecution witnesses were in attendance.”

The Notice of Motion is supported by the affidavit of Racheal Amala Livete Prosecution Counsel sworn on 31st August 2017.

Since the orders sought would adversely affect the accused in the matter I direct that the application be served upon him.

In the impugned ruling the trial magistrate refused to grant an adjournment and whereupon the Prosecution Counsel proceeded to close the case for the prosecution. According to Prosecution Counsel Racheal Amala Livete the accused in that case was charged with stealing two cartons of Amoxyline Capsules while working as a doctor at Jaramogi Oginga Odinga Teaching and Referral Hospital. On 29th March 2016 the prosecution had three witnesses but when one of them was called to the stand and started testifying the defence raised an objection which the trial magistrate overruled before adjourning the trial on his own motion. That witness never returned to court. On 23rd August 2017 another of the prosecution witnesses did not attend despite being served with summons. The Prosecution Counsel pleaded with the court to issue a warrant of arrest but her application was turned down. She was therefore forced to close her case prematurely. It is her contention that this matter being one of public interest it will be in the interest of justice if the orders sought are granted so as to avert a miscarriage of justice and loss to the hospital and state owing to the nature of exhibits involved.

The accused filed grounds of opposition which state -

1. “The application is misconceived, fatally defective and amounts to an abuse of the court process.

2. The application seeks to whittle down and dilute the Respondent's constitutional rights as set out in Article 50(1)(e) of the Constitution (2010).

3. The Applicant seeks to challenge the right of the trial court in exercise judicial discretion which has been exercised judiciously.

4. The application does not take into account the now settled and trite law that an adjournment must be earned on the basis of good/plausible reasons and is not granted as a matter of course or on flimsy and or capricious excuses.”

Thereafter this court heard the arguments of the Advocates for the parties.

Adjournments are in the discretion of the trial court and what this court is being asked to do is to interfere with the trial court's exercise of its discretion. The Court of Appeal dealing with a similar issue albeit in a Civil matter in Moses M. Njoroge & Another V. Samat Bhima [1994]eKLRstated:-

“It is of course not in doubt that any question of adjournment is a matter within the discretion of the judge of the court of trial and the manner of its exercise will not be interfered with if it appears to an appellate court that all necessary matters have been taken into consideration. See the case of Patel V. Gottfried [1953] 20 EACA 81. The exercise of discretion should not defeat the rights of the parties altogether and should not do injustice to one or other of the parties. If it does so then the appellate court has power to review such an order.”

In this case the trial magistrate rejected the application for adjournment and for a warrant of arrest to issue to the witnesses who did not attend court and who therefore necessitated the application for adjournment. We do not have typed copies of the proceedings but from the handwritten proceedings I discern the trial magistrate saying that whereas the prosecution was aware that its witnesses were not willing to attend court it waited until the day of the hearing to apply for warrants of arrest to issue against them. The trial magistrate observed that the warrant of arrest must be sought at the earliest available instance. He gave other reasons which are not very legible.

A court's power to compel the attendance of witnesses is provided under Sections 144 to 149 of the Criminal Procedure Code. It all begins by the bonding of witnesses by the police in the manner set out in annexture “RALI” to the affidavit of Prosecution Counsel by issuing a police bond. However where it is made to appear to the court that the witness is not willing to attend, the court may issue a summons to that witness requiring his attendance. Section 145 of the Criminal Procedure Code provides that should such a witness who is summoned not appear the court on proof of proper service of the summons a reasonable time before the hearing may issue a warrant to bring him before the court referred to in other jurisdictions as subpoena. Section 146 of the Criminal Procedure Code provides that the court may issue a warrant of arrest at the first instance but only if there is evidence on oath that the witness is not willing to attend voluntarily. Sections 147 and 149 of the Criminal Procedure Code sets out the mode of dealing with witnesses who still refused to attend. The power to compel witnesses is discretionary though a practice has emerged where courts issue witness summons as a matter of course perhaps so as to realize the accused person's right to a fair and speedy trial. The court's discretion as always must be exercised judicially so as not to throw out either party from the seat of justice.

The record shows that on the material day Prosecution Counsel intimated to the court that she was expecting one witness who had confirmed but who could not attend because she had a sick child. The other witness was an officer from the Scenes of Crime whose wife was ailing. These in my view were not flimsy excuses. They were reasonable grounds and it is not clear why the trial magistrate came to the conclusion that they were unwilling to attend. Moreover as stated above if he had reasonable grounds to believe they were not willing to attend voluntarily he ought to have resorted to the provisions of Section 144 to 148 of the Criminal Procedure Code. As it is his refusal to grant an adjournment frustrated the right of the Prosecution Counsel to present its case against the accused person. I do not agree with the submission that one more adjournment would have whittled the accused's right to a fair trial under Article 50(1)(e) of the Constitution. The discretion was not exercised judicially but rather capriciously and this is a good case for revision.

Accordingly the application is allowed so that the order refusing the adjournment is set aside to give room for the prosecution to call its witnesses. However should the trial have ended and the accused was acquitted and this ruling is overtaken by events the prosecution can only exercise its right of appeal. It is so ordered.

Signed, dated and delivered at Kisumu this 12th day of October 2017

E. N. MAINA

JUDGE

In the presence of:-

Miss Kimani for the Applicant

Mr. Omondi T for the Respondent (Holding Brief for Onsongo Advocate)

Court Assistant – Serah Sidera