[2018] KEHC 6345 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KIAMBU

CRIM. APPEAL NO. 146 OF 2016

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

VERSUS

JOHN THUKU GICHEHA.................................1ST RESPONDENT

BEN MAINA MACHARIA.................................2ND RESPONDENT

(Being an appeal from Rulings of Honourable Mr. G. Oduor, Chief Magistrate,

Limuru delivered in Limuru CMCC No. 513 of 2016)

JUDGMENT

1. In Limuru Senior Principal Magistrate’s Criminal Case No. 513 of 2015, the two Respondents herein, John Thuku Gicheha and Ben Maina Macharia were charged with eleven counts of being in possession, in the course of trade, of counterfeit goods contrary to section 32(a) of the Anti-Counterfeit Act of 2008. In all the counts, the charge alleged that the Respondents were in possession of various gas cylinders which were alleged to be counterfeit goods.

2. The Respondents were arraigned on 26/06/2015. They denied the charges and were admitted to bail. The hearing was fixed for 12/08/2015. In the intervening period, Counsel for the Respondents, on instructions from the owner of the vehicle in which the alleged counterfeit gas cylinders were found made an application for the release of the Motor Vehicle. After a contested hearing, the Learned Trial Magistrate ordered the vehicle released on certain conditions.

3. When the case came up for hearing on 12/08/2015 as scheduled, the Prosecutor asked for an adjournment after informing the Court that he was holding brief for the gazetted Anti-counterfeit prosecutor. The adjournment was granted and a new date given. The new date was 11/11/2015. On that date, again, the Prosecutor asked for another adjournment. The reason recorded is that the Prosecution did not yet have sufficient instructions from the Complainant, the Petroleum Institute of East Africa. Although opposed, the Learned Trial Magistrate, again, permitted the adjournment. It was marked as the last adjournment.

4. The new scheduled hearing was 14/12/2015. Again, the Prosecutor asked for an adjournment. This time, the reason advanced was that the gazetted Anti-Counterfeit Prosecutor was on leave. The Prosecutor also informed the Court that the charge sheet will need to be amended to include a third Accused Person. Again, Counsel for the Defence vigorously opposed the Application for adjournment as being in bad faith. The Court responded by summoning the Anti-Counterfeit Agency (ACA) Prosecutor “to come and state whether or not they are serious in prosecuting the matter.” A mention date of 19/01/2016 was scheduled.

5. On 19/01/2016, the Learned Trial Magistrate was indisposed.

6. The matter next came up for hearing on 08/04/2016. Mr. Chege, for the ACA appeared and applied to substitute the charge sheet. His Application was allowed despite objections by the Defence Counsel. A new mention date of 28/06/2016 was scheduled. On that date, the Prosecutor informed the Court that it now intended to proceed with the original charge sheet. Hearing was scheduled for 28/09/2016.

7. On 28/09/2016, both Respondents and their Advocate, Mr. Mari were in Court. So was the Prosecutor, Mr. Ng’etich. Mr. Mari informed the Court that he was ready to proceed since the matter had really delayed. Mr. Ng’etich informed the Court that he had no instructions. Mr. Mari reminded the Court that it has ordered the last adjournment on 11/11/2015 and 14/06/2016. He pointed out that the Respondents were suffering a lot of prejudice due to the delay by the Prosecution, and applied for the Court to acquit the Respondents.

8. The Court gave a short ruling thus:

For the reason given by Mr. Mari for the Accused, and due to the fact that the Anti-Counterfeit Agency which is the Complainant was aware of today’s hearing, and is absent without cause, both Accused Persons are acquitted under section 202 of the CPC.

9. This is the order that the State is appealing against.

10. There has been a lot of confusion propagated by the ODPP in this matter: including attaching the proceedings of a separate but companion case as the proceedings of this appeal. The Respondent’s arguments have mainly centred on these lapses by the Prosecution. On my part, I have focused on the substantive matters raised on appeal.

11. The State seeks to overturn the order by the Learned Trial Magistrate based on the argument that it was erroneous. As I understand it, Mr. Kinyanjui for the State, made four arguments in favour of the Appeal.

12. First, Mr. Kinyanjui argues that it is not clear who Ngetich was; and whether he represented the ACA on the day the order was made. His argument is that Ngetich is the resident prosecutor in Limuru and that, therefore, ACA was not represented. I would easily dispose of this argument: Under the Constitution, the power of Prosecution is donated only to the DPP. The DPP’s representative was in Court. It is not denied that he had authority to conduct the matter on behalf of the DPP. That he was holding brief for Mr. Kamau of ACA as he had previously done was immaterial.

13. Second, Mr. Kinyanjui complains that Mr. Mari misguided the Court on the issue of last adjournment order. The argument is that Mr. Mari was wrong to inform the Court that the Court had given the last adjournment and that he exaggerated the number of adjournments – which were six and not ten as claimed by Mr. Mari.

14. I do not think much comes out of this complain by Mr. Kinyanjui. The fact of the matter is that the Court exercised its mind to the facts of the case and determined that it should not grant another adjournment. As outlined in the history of the case above, it is also true that the Court had, on two previous occasions indicated that the adjournment sought by the Prosecution would be the last one.

15. Third, Mr. Kinyanjui says that the application for acquittal was unprocedural since it was made before a formal application for adjournment was made by the Prosecution. I am not sure I understand the exact nature of this objection. The truth of the matter is that there was a prosecutor in Court who indicated that he had “no instructions.” It was, then, open for the Court to make appropriate orders.

16. The last ground by Mr. Kinyanjui is that it was wrong for the Court to dismiss the case under section 202 of the CPC. He gives three reasons for his opinion. One, he says that section 202 only applies when the Accused has attended Court in obedience of summons which was not the case here. Here, Mr. Kinyanjui argues, the Respondents had attended Court pursuant to an adjournment. Mr. Kinyanjui makes this ultra-technical argument on the one hand while, on the other hand, he lambasts the Court for applying section 202 of the Criminal Procedure Code mechanically.

17. Two, Mr. Kinyanjui says that under section 202, a case can only be dismissed if there has been Notice to the Complainant. In this case, he argues, the DPP and not the ACA was the complainant. Since Mr. Ngetich was present in Court, it was a misdirection for the Court to dismiss the Court under that section.

18. Three, Mr. Kinyanjui insists that it was an abuse of discretion for the Court to dismiss the case under section 202 of the CPC. The section, he argues, has the proviso: “unless for some other reason [the Court] thinks proper to adjourn…” Given this proviso, Mr. Kinyanjui insists that the Court ought to have taken into consideration a number of factors before dismissing the case. He enumerated the following four reasons that he says the Court failed to consider:

i. That the matter was of great public interest given that there was public outrage over the existence of fake or counterfeit gas cylinders in the area;

ii. That the Court was aware that some goods were seized pursuant to section 28(3) of the Anti-Counterfeit Act. They needed a determination on whether they were counterfeit or not.

iii. That ACA was acting statute and that public bodies are generally overworked and sometimes have meagre resources.

iv. That ACA was in no way attempting to derail the course of justice and was not acting in bad faith.

19. On my part, after due analysis of the case and the context, I am not persuaded that it was correct for the Learned Trial Magistrate to dismiss the case under section 202 of the CPC. However, I do not agree with the State that the order for dismissal of the charges and the acquittal of the Accused Persons was, in the circumstances, unwarranted. The Learned Trial Magistrate based his argument on both the fact that the Prosecution had not shown seriousness in prosecuting the case, as well as the purported absence of the complainant under section 202 of the CPC.

20. I would readily agree with Mr. Kinyanjui, following the reasoning of Justice Lenaola in DPP vs Nairobi Chief Magistrate’s Court & Another (2016) eKLR, that the DPP is the functional complainant for purposes of section 202 of the CPC and that it is inappropriate for a Court to dismiss a matter under that section when a Prosecutor is present in Court.

21. At the same time, however, looking at the history of the case and the context, I am persuaded that it was not an abuse of the Court’s discretion for the Learned Trial Magistrate, in the specific circumstances of this case, to refuse to allow another adjournment and to proceed to acquit the Respondents.

22. The history of the litigation, in my view, tells the narrative of a Prosecution that was lackadaisical in pursuing the prosecution. The Respondents were first presented to Court on 26/06/2015. More than a year and three months later, their case had not taken off for a variety of excuses proferred by the Prosecution which, respectfully, sound flippant: that the ACA Prosecutor was on leave; or that the attending Prosecutor did not have instructions; or that the Prosecution intended to amend the charges; or that the Prosecution had decided, after all, to revert to the original charge sheet, and so forth. Given this history, the Learned Trial Court was justified to bring to an end the criminal trial the Respondents were facing. I find no fault in the Learned Trial Magistrate’s use of deployment to dismiss the charges and acquit the Respondents.

23. This does not, however, conclude the matter. There is the issue of the exhibits – namely the gas cylinders which the State insists are counterfeit goods, and, therefore, dangerous goods to be released to the market. Following the Court’s orders acquitting the Respondents, the Court went ahead to make an order that all the exhibits held by the Anti-Counterfeit Authority (ACA) be returned to the Respondents.

24. The State is aggrieved by this order as well. The State’s principal argument in this regard is that the Court failed to take into account the provisions of section 28(3) of the Anti-Counterfeit Act in making that order. That section requires a trial Court to make a finding as to the status of the alleged counterfeit goods – which, the State argues, the Trial Court failed to do.

25. Section 28 of the Anti-Counterfeit Act provides as follows:

(1) Where any goods are seized and detained under section 23, they shall be returned, less any portion thereof which has been reasonably utilized for the purpose of any test or analysis, to the person from whom they were seized within a period of three months after the date of seizure unless, within such period, some person is charged with an offence under this Act and it is alleged that such offence was committed in relation to or in connection with such goods.

(2) Where a prosecution for an offence under this Act is commenced within the period mentioned in subsection (1), and any person is convicted of that offence, the court which made the conviction may order that any goods seized and detained in relation to or in connection with which such offence was committed shall be forfeited to the Government for destruction at the expense of the person so convicted.

(3) The court before which a person is charged with an offence under this Act shall, whether such person is convicted of the offence or not, order that any goods in his possession which appear to the court to be counterfeit goods or to be tools used or intended to be used for making counterfeit goods, be destroyed or otherwise dealt with as the court may deem appropriate.

(4) Where a person charged with an offence under this Act absconds and does not appear in court or where counterfeit goods are seized but are not claimed, an inspector may apply to have the counterfeit goods forfeited to the State for destruction.

26. To my mind the wording of section 28(3) is clear: it mandatorily requires a Trial Court to make a determination whether the goods in question are counterfeit goods or not and then, following such determination, making an appropriate order for destruction or any other appropriate order. Justice Majanja in Republic vs National Printing Press (2017) eKLR arrived at the same textual reading of the section.

27. In the present case, the Learned Trial Magistrate, probably because he did not have the benefit of arguments from both parties, did not consider the import of section 28(3) of the Anti-Counterfeit Act before ordering the release of the goods. Consequently, he made no findings about the status of the goods seized by ACA. He was statutorily required to do so. To this extent, the order for release of the goods given by the Learned Trial Magistrate was erroneous. The same is hereby reversed.

28. The upshot is that the order directing that the goods seized by the Anti-Counterfeit Authority should be returned to the Respondents is hereby set aside. In its place, there shall be an order directing the Magistrate’s Court to make a finding under section 28(3) of the Anti-Counterfeit Act about the status of the alleged counterfeit goods, and then thereafter make an order that the Court deems fit regarding the goods. Needless to say, the Trial Court should only make these findings and orders after hearing arguments and presentations by the various parties.

29. Orders accordingly.

Dated and delivered at Kiambu this 4th day of June, 2018.

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

JOEL NGUGI

JUDGE