[2024] KEHC 9673 (KLR)

Republic v Kanyenze alias Pentagon; Mulondo & another (Victims) (Criminal Revision E171 of 2022) [2024] KEHC 9673 (KLR) (24 July 2024) (Ruling)

Neutral citation: [2024] KEHC 9673 (KLR)

Republic of Kenya

In the High Court at Machakos

Criminal Revision E171 of 2022

MW Muigai, J

July 24, 2024

Between

Republic

Applicant

and

Michael Kanyenze Alias Pentagon

Respondent

and

Vincent Mulondo

Victim

Ashdarn Mandela

Victim

Ruling

1. The Respondent was charged with 3 Counts before the Chief Magistrate’s Court at Mavoko in Criminal Case No. E1153 of 2021. On the 1st count he was charged with assault of Vincent Mulondo Watiko and 2nd count he was charged with the offence of assault to Alashdan Mandela contrary to Section 251 of the Penal Code and on count 3, the accused was charged with malicious damage to property contrary to Section 339(1) of the Penal Code, damage of mobile phone Make Huawei mate8 the property of Vincent Mulondo Watiko.

2. On 17th May 2022, the prosecutor averred that the file was reviewed together with the allegation of the accused and the complainant. The accused indicated that he was hurt. The prosecutor then requested to have the matter withdrawn under Section 87 (a) CPC and that both parties be charged with affray

3. On 17. 5.2022, the Trial Magistrate Hon. S Jalango (PM) disallowed the application to have the matter withdrawn under section 87(a) of the CPC on grounds that the prosecution had not addressed the issue of the counts namely assault on different complainant in Count 2 and malicious damage to property in Count 3.

Application 4. The Applicant ( Republic) via a letter dated 23rd November 2022, averred that the trial magistrate erred in disallowing the prosecution’s request to withdraw the matter under section 87 A.

5. It was contended that the Office of the DPP received a police file 44E/336/2021 for advice whereas the criminal case No. 1153 of 2021 had already been registered in Mavoko Law courts. After scrutinizing the file it came to the attention of the prosecution counsel that that both the accused and the victim needed to be charged with the offence of affray contrary to Section 92 of the Penal Code.

6. The applicant requested that the court be pleased to revise, review and set aside the orders of the Trial Court.

Applicant’s Submissions 7. Vide submissions filed in court on 29. 03. 2023, the prosecution counsel relied on Article 157 of the Constitution which provides the mandate of the ODPP and the case of Peter Ngunjiri Maina vs DPP (2017)

8. It was submitted that the prosecution counsel in Mavoko acted in due regard to public interest, the interest of administration of justice and the need to prevent and avoid abuse of the legal process

9. Reliance was made to Section 362 of the criminal procedure code and the case of Public Prosecutor vs Muhari bin Mohd Jani and Another (1996) 4 LRC on the revisionary powers of the high court

10. The Court was urged to revise, review and set aside the trial court orders in the interest of justice.

Respondent’s Submissions 11. On behalf of the Respondent it was submitted that the issues for determination were whether the applicant had established a prima facie case for revision, whether the parties will be adversely affected by the applicant’s application to withdraw the charges and whether the trial magistrate erred in law and in fact by disallowing the prosecution’s request to withdraw the matter.

12. On the 1st issue, reliance was made to Article 157 (6) © of the Constitution of Kenya 2010 on the mandate of the DPP to discontinue a case at any stage before judgement.

13. Reliance was made to the case of Musyoki Kimanthi vs Inspector General of Police and 2 others(2014) eKLR

14. It was submitted that in order to ensure that both parties are not prejudiced the applicant saw it fit to withdraw the matter and prefer a more justifiable charge.

15. On the 2nd issue, it was submitted that the accused reported an assault , the victim in attempt to overshadow the accused complaint also filed a complaint and his complaint was registered first in court and that there was already an injustice contrary to Article 48 of the Constitution.

16. It was submitted that the parties shall not be affected if the application is allowed infact the matter shall be handled justly.

17. The court was urged to allow the application to revise, review and set aside the trial court’s orders.

Victim’s Submissions 18. The Victim Vincent Mulondo filed his submissions on 15th March 2023 and submitted that the issues for determination were whether the applicant had established a prima facie case for revision, whether the parties will be adversely affected by the applicant’s application to withdraw the charges and whether the trial magistrate erred in law and in fact by disallowing the prosecution’s request to withdraw the matter under Section 87 a of the CPC

19. On the 1st issue reliance was placed on Article 165(6) of the Constitution and Section 362 of the CPC on the High court supervisory powers of the subordinate courts

20. Reliance was made to Article 157(11) of the Constitution and it was thus submitted that the power to allow or refuse withdrawal of a case was discretionary

21. Reliance was made to the case of Republic vs Kennedy Onsarigo Sebe & 3 others [2019]eKLR to buttress the issue of discretion

22. It was submitted that the application was brought in bad faith and an abuse of the judicial process. The victim averred that there was bias in arrest of the accused despite him having reported assault as the police claimed it was a land dispute thus civil in nature and that it was clear that there was a concerted effort by a section of police officers to protect the accused and other land cartels.

23. Reliance was made to the case of George Taitimu v Chief Magistrate’s Court Kibera & 2 Others [2014] eKLR, R vs Izlam A Omar and Joseph Nduvi Mbuvi vs Republic (2019) eKLR.

24. It was submitted that the applicant had not submitted a prima facie case for revision and thus the application be dismissed

25. On the 2nd issue, reliance was made to Article 48 and 159(2) of the Constitution on access to justice to all

26. It was submitted that if the DPP was allowed to drop the charges against the accused, there will be substantial injustice to the accused as their right to access to justice will have been violated and yet there will be no prejudice suffered by the accused should the application be dismissed.

27. Reliance was placed in the case of DPP v Jackson Cherono[2019] eKLR.

28. On the 3rd issue it was submitted that the Trial Court was right in disallowing the prosecution request for withdrawal as it was marred with illegalities and was an abuse of the legal process

29. It was their final submission that the court find the application by the prosecution is devoid of merit as the applicant has not established a case for revision.

Determination 30. The Court considered the application together with the pleadings and written submissions.

31. I have perused the record of the trial court and these facts emerge:i.The accused took plea and pleaded not guilty to all the counts he was being accused of;ii.The prosecution made an application to have the matter withdrawn under Section 87 (a) of the CPC and the trial magistrate disallowed the application on grounds that the prosecution had not addressed the issue of two counts of assault on a different complainant Alashdan Mandela, count 2 and 3 of malicious damage to property.iii.The Trial Magistrate further noted that the continuation of the matter cannot stop the DPP from preferring charges against the complainant. He stated that the matter was to proceed for hearing on the 15th August 2022

32. The issue for determination is whether the Court should allow the DPP to withdraw the criminal case No. E1153 of 2021or not.

33. The jurisdiction of the High Court is provided as follows;Section 362 of CPC spells out the power of the High Court to call for records 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.

34. Article 157 of the Constitution provides on prosecution powers of the DPP as follows; Article 157 (6) (c) the Director of Public Prosecutions shall exercise State powers of prosecution and may—subject to clauses (7) and (8), discontinue at any stage before judgment is delivered any criminal proceedings instituted by the Director of Public Prosecutions or taken over by the Director of Public Prosecutions under paragraph;(7)If the discontinuance of any proceedings under clause (6)(c) takes place after the close of the prosecution’s case, the defendant shall be acquitted;(8)The Director of Public Prosecutions may not discontinue a prosecution without the permission of the court;(11)In exercising the powers conferred by this Article, the Director of Public Prosecutions shall have regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process. Section 87A of the Criminal Procedure Code provides:87. In a trial before a subordinate court a public prosecutor may with the consent of the court or on the instruction of the Attorney General at any time before the judgment is pronounced withdraw from the prosecution of any person and upon withdrawal:-(a)if is made before the accused person is called upon to make his defence, he shall be discharged but the discharge of an accused person shall not operate as a bar to subsequent proceedings against him on account of the same facts,(b)if is made after the accused person is called upon to make his defence he shall be acquitted.

35. Under the provision, the power to allow or refuse a withdrawal of a case is discretionary. The application before me before court is brought seeking the exercise of the court’s supervisory powers over subordinate courts, powers vested in the High Court by S 362 and 364 of the Criminal Procedure Code. I have dutifully examined the record of the criminal proceedings in the case No. E1153 of 2021 and written submissions of the parties.

36. On 4/4/2022, the Prosecution intimated intention to withdraw the matter. The watching brief Counsel on record objected to withdrawal of the matter as there was no consultation with the Complainant and no good reason was advanced for withdrawal. The matter was adjourned for I hour In those proceedings, the prosecution made an application to withdraw the case under S 87(a)CPC

37. On 17th May 2022, the prosecutor averred that the file was reviewed together with the allegation of the accused and the complainant. The accused indicated that he was hurt. The prosecutor then requested to have the matter withdrawn under Section 87 (A) and that both parties be charged with the offence of affray.

38. The application was opposed by the defence on the basis that it would be prejudicial to the accused persons. It was submitted that if the DPP was allowed to drop the charges against the accused, there will be substantial injustice to the accused as their right to access to justice will have been violated and yet there will be no prejudice suffered by the accused should the application be dismissed.

39. The Applicant highlighted the Constitutional and statutory powers of the DPP in facilitating prosecution of cases in Court in Article 157 of Constitution. The power of revision by the Court is illustrated in Public Prosecutor vs Muhari bin Mohd Jani & another [1996] 4 LRC 728 at 734 & 735; The object of revisionary powers of the High Court is to confer upon the High Court a kind of Paternal or supervisory jurisdiction in order to correct or prevent miscarriage of justice….

40. The Respondent/Accused person submitted that the Prosecution is acting with due regard and interest of administration of justice as there was a witness who witnessed the Accused person being hit by a man. The Victim on the other hand also claimed that he was hit by the Respondent. The Respondent made a report before the victim and had filed a charge against the victim but victim fast tracked and Respondent was charged with the offence of assault. The Respondent/Accused person was denied the opportunity to access justice despite reporting an assault against the victim and presenting the P3 Form as evidence of assault.

41. The Victim/Complainant submitted that on 3/11/2021 he was accosted by a gang of rowdy men with crude weapons on his premises with his employees and was bleeding. He reported the matter and was informed it is a civil and land matter. He sought medical attention and brought p3 form. He was requested to drop compliant, received threats and been sought to drop charges.

42. The victim /Complainant opposed withdrawal of charge as there are 2 more charges relating to malicious damage of his phone and assault to another Complainant such that withdrawal of charges to bring new charge of affray does not fit in.

43. The victim/respondent also submitted that all persons are entitled to access justice , be heard before an independent impartial and competent Tribunal or Court as provided by Article 159 (2)(a); Article 48 & Article 50 of the Constitution.

44. In the case of Walingo v Directorate of Criminal Investigation & 4 others; Seno & another (Interested Parties) (Constitutional Petition E028 of 2022) [2024] KEHC 2889 (KLR) Chemitei J observed;“The ultimate decision of what steps ought to be taken to enforce the criminal law is placed on the officer in charge of prosecution and it is not the rule, and hopefully it will never be, that suspected criminal offences must automatically be the subject of prosecution since public interest must, under our constitution, be considered in deciding whether or not to institute prosecution……….”Therefore, the mere fact that the DPP’s decision differs from the opinion formed by the investigators is not a reason for interfering with the constitutional and statutory mandate of the DPP as long as he/she believes that he/she has in his/her possession evidence on the basis of which a prosecutable case may be mounted and as long as he takes into account the provisions of Article 157(11) of the Constitution as read with section 4 of the Office of Public Prosecutions Act, No 2 of 2013. 137. Conversely, the mere fact that the investigators believe that there is a prosecutable case does not necessarily bind the DPP.

45. The Court of Appeal in the case of Commissioner of Police & another v Kenya Commercial Bank Ltd & 4 others [2013] eKLR persuasively found that the High Court can stop a process that may lead to abuse of power and held that: -“The courts must wait for the investigations to be complete and the suspect charged. By the same token and in terms of article 157(11) of the Constitution, quoted above, in exercising powers donated by the law, including the power to direct the Inspector General to investigate an allegation of criminal conduct, the DPP is enjoined, among other considerations, to have regard to the need to prevent and avoid abuse of the legal process. The court on the other hand is required to oversee that the DPP and the inspector general undertake these functions in accordance and compliance with the law. If it comes to the attention of the court that there has been a serious abuse of power, it should, in our view, express its disapproval by stopping it, in order to secure the ends of justice, and restrain abuse of power that may lead to harassment or persecution.”

46. The Court finds that the application before the Court for revision, as gleaned from the Trial Court record, does not disclose any incorrectness, illegality or impropriety by the Trial Court nor lack of taking into account public interest, the interests of the administration of justice and/or abuse of the legal process by the Prosecution/Office of Director of Public Prosecution. Each stakeholder in the Criminal justice system exercised its Constitutional & Statutory mandate as provided by law. Whereas the ODPP is vested with mandate of prosecution, the same in withdrawal of cases is subject to Trial Court’ s discretion that ought to be exercised judiciously. The parties/Counsel to the trial made detailed submissions disclosing circumstances and reasons for positions they each took with regard to withdrawal of the matter in Court and each made compelling arguments to the position taken. ODPP sought withdrawal of the case against the Respondent in light of evaluation of evidence in order to prefer the appropriate charge. The victim/complainant cast aspersions on the application for withdrawal citing events that allegedly occurred during investigations that would curtail enforcement of his human rights. In the instant case, there is no evidence that the application to withdraw the charges under S 87(a) CPC was brought in bad faith or was an abuse of the court process.

47. The charge sheet contains criminal charges against the accused person on the one hand and a complainant(s)/victim on the other hand.

48. The caveat to the withdrawal of the case is subject to the concurrence of the Trial Court. To do so, the DPP should present reasons justifying withdrawal amendment or consolidation of the charges. The Parties to the Trial did not divulge all that is contained in submissions before the Trial court so as to enable the Trial Court determine the application based on informed decision on presentation of all relevant facts. It is on revision before the High Court that numerous matters have emerged that ought rightfully to be presented before the Trial Court. In the absence of which the Court exercised judicial discretion and refused the withdrawal of charges.

49. However, the exercise of discretion in the circumstances must, like all other discretionary powers be exercised judiciously and ensure justice all the parties. The duty of the Court must of necessity be to balance the rights of the parties in a case.

50. The case of Republic –Vs- Sekento [2019]eKLR Hon. R. Nyakundi J had this to say at page 4 of his Ruling;“To consider the application, the trial court was under a duty to appraise the provisions of section 87(a) subject to Article 157 (6), (7), (8) and (10) of the Constitution, on the power conferred upon the Director of Public Prosecution to commence, continue or discontinue any proceedings pending before a court of law. That the spirit and tenor of judicial discretion is to advance the objects and principles of a right to a fair trial under Article 50 of the Constitution.”

51. The Judge at page 5 proceeds to state;“The importance of the right for the prosecutor to be allowed to withdraw the charge at any stage of the proceedings before final judgment should not be denied merely on grounds of prejudice on the part of the accused…..The Act of a likelihood to re-open the case against an accused person should not be a bar to decide to withhold consent under S 87(a) of the Criminal Procedure Code. The Constitutional provisions of Article 50 engraves fair trial rights until final judgment is pronounced by the Court. It is therefore immaterial for the Court under S 87(a) of the Criminal Procedure Code to prohibit withdrawal on grounds that the accused would suffer prejudice if fresh charges are to be filed by the State.”

52. There is no bar to the DPP or and the Police continuing with investigations or even receiving new evidence once the accused has been charged and put to trial. Hon D.Majanja J in George Taitimu –Vs- Chief Magistrate’s Court Kibera & 2 Others [2014]eKLR stated;“I would also add that DPP and the Police are not prevented from continuing investigations or even receiving new evidence once the accused has been charged and in the course of trial. The duty of the prosecutor is bring the new information and evidence to the attention of the accused and for the court to give the accused the opportunity to interrogate the new evidence and adequate time to prepare his defense. Likewise, after discharge of the accused under section 87(a) of the CPC, the court cannot prevent further investigations into the subject of the trial.”“Section 87(a) of the CPC gives the learned magistrate broad discretion to accept or reject an application for withdrawal of charges presented by the prosecutor. Such discretion has to be exercised judiciously taking into account the facts of each case and in particular whether the application is brought in the public interest, the interests of administration of justice and the need to prevent and avoid an abuse of the legal process.”

53. On perusal of the Court record the Trial Court declined withdrawal of the charges as the Prosecution had not made any mention of the way forward with regard to Count 2 & 3 of the charge sheet save for Count 1 only.

54. The DPP intimated that new information was found which would lead to change in the charges and the need to charge the complainant with the offence of affray. However, if all the rights under Article 50 are enforced, I find no prejudice that would be suffered by the accused persons nor the Complainant. The Trial Magistrate gave valid reasons for the refusal of the withdrawal of the charges herein especially with regard to the other 2 Counts of the Charge Sheet.

55. The exercise of discretion by the Trial Court was proper. The refusal to allow a withdraw of the case under S 87(A) was regular in the prevailing circumstances.

56. Ultimately, the Court shall uphold the enforcement of each party in trial process and enforce Article 48 50 & 159 (2) of the Constitution allowing each party their day in Court right to be heard, right to present evidence and allow the Trial Court determine the matter on merit.

Disposition 1. The order refusing withdrawal of the charges in CM Criminal Case No. E1153 of 2021 is hereby upheld.It is so ordered.

JUDGMENT DELIVERED SIGNED & DATED IN OPEN COURT IN MACHAKOS HIGH COURT ON 24/7/2024. (VIRTUAL/PHYSICAL CONFERENCE).M.W.MUIGAIJUDGEIN THE PRESENCE OF:MS MASABA H/B OMOKE -FOR THE VICTIMMS KABURU FOR ODPP-PRESENTGEOFFREY/PATRICK –COURT ASSISTANT(S)