[2022] KEHC 16016 (KLR)

Republic v Kariuki (Criminal Revision E256 of 2022) [2022] KEHC 16016 (KLR) (1 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16016 (KLR)

Republic of Kenya

In the High Court at Kiambu

Criminal Revision E256 of 2022

MM Kasango, J

December 1, 2022

Between

Republic

Applicant

and

Esther Wangui Kariuki

Respondent

(Being a criminal Revision Application from an order on declination of an adjournment at Kiambu Chief Magistrate’s Court (Hon. S. Atambo, CM) on 1st September, 2021 in Criminal Case No. 1860 of 2017)

Ruling

1. Esther Wangui Kariukiwas on 4th December, 2017 charged before the Kiambu Chief Magistrate’s Court in Criminal Case No. 1860 of 2017 with the offence of robbery with violence. She pleaded not guilty.

2. The Director of Public Prosecutions (DPP) by letter dated 1st September, 2021 requested this Court to call for the record of that criminal case file before the Kiambu Chief Magistrate’s court with a view to examining the order made by the trial court on 1st September, 2021 for this Court to satisfy itself as to the correctness, legality or propriety of that order. That letter partly stated:-“The court misapplied the law in closing the prosecution case and declining an adjournment on the basis of the grounds laid down by the prosecution. Closure of the prosecution case was premised on non-attendance of the last two prosecution witnesses who the prosecution explained their absence from court.Consequently, I apply for revision of the said orders for closing of the prosecution’s case and substitution with appropriate orders.”

3. Section 362 of theCriminal Procedure Code empowers the High Court to call for records of the trial case, which is the subject of this review. The commencement of the trial was delayed because the accused person sought several adjournments for various reasons, some of which included her allegation she was unwell. I have in total counted six adjournment that were granted to the accused.

4. The DPP obtained five adjournments from the trial court for reasons that ranged from unavailability of police file witnesses who did not attend when bonded one time because that the prosecuting counsel was unwell.

5. On 1st September, 2021 DPP prosecution counsel informed the trial court that there remained two witnesses who were yet to testify. The prosecution’s counsel stated that the two witnesses were police officer and one of them was attending a hearing before Bungoma High Court while the other one was the only police officer manning an unnamed police station. Prosecuting counsel informed the trial court that consequently the two officers were not present at the court on that day. He sought an adjournment. That adjournment was objected to by accused who complained of the delay which she stated was causing her to suffer in custody. The trial court declined to grant an adjournment for the following reasons:-“No valid reason why the 2 remaining witnesses are not in court despite being bonded.The accused person has been in custody for the last 3 years.Application for adjournment not merited hence declined.”

6. Prosecuting counsel thereafter informed the trial court that due to the seriousness of the offence the accused was facing, DPP would not withdraw the charge. The trial court ordered that:-“Prosecution case is closed.”

7. Section 205(1) of the Criminal Procedure Code provides that a trial court may, at its discretion adjourn a matter. That Section is in the following terms:-“The court may, before or during the hearing of a case, adjourn the hearing to a certain time and place to be then appointed and stated in the presence and hearing of the party or parties or their respective advocates then present, and in the meantime the court may allow the accused person to go at large, or may commit him to prison, or may release him upon his entering into a recognizance with or without sureties conditioned for his appearance at the time and place to which the hearing or further hearing is adjourned:Provided that no such adjournment shall be for more than thirty clear days, or, if the accused person has been committed to prison, for more than fifteen clear days, the day following that on which the adjournment is made being counted as the first day.

8. The issue for determination is, whether the DPP’s request for an adjournment in order to avail the remaining two witnesses was properly considered; whether the trial court’s exercise of its discretion not to adjourn the trial was exercised correctly/judiciously. The trial court when faced with an application as it was, for adjournment by DPP in situation where the trial court’s Ruling was liable to deprive the parties rights ought to have given reason for its Ruling. It is useful to consider what was stated in a Canadian case R. V. Schneider(2004) NSCA 151, thus:-“An extensive power is confided to the justices in their capacity as justices to be exercised judicially; and "discretion" means when it is said that something is to be done within the discretion of the authorities that that something is to be done according to the rules of reason and justice, not according to private opinion: Rooke's Case (1); according to law, and not humour. It is to be, not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself.”

9. I reiterate after the trial court was informed that the two remaining prosecution’s witnesses were police officers, and that one had attended Bungoma High Court, while another had been left alone manning a police station, the trial court failed to state in its ruling the reason why that explanation by the prosecution was not valid reasons for adjournment. The trial court, in light of the explanation of the absence of the two witnesses did not give reason for disregarding the explanation of the prosecution and for exercising its discretion as it did in declining an adjournment. It was incumbent for the trial court to exercise its discretion in a manner that was consistent with the rights of prosecution while balancing the rights of the accused. The trial court in its Ruling did not address the fact one police officer was attending Bungoma High Court nor did it address that the other police officer was absence because he was manning a police station. The Ruling did not respond to the grounds advanced for an adjournment.

10. I have considered the opposition raised by the accused to this revision but I am of the view that delay that is accessioned by this revision cannot be reason to permit an incorrect order, of failing to grant an adjournment to be sustained.

11. Section 364 of theCriminal Procedure Code grants this Court power to alter or reverse subordinate court’s orders that fail the test of correctness, legality or propriety.

Disposition 12. Bearing the above in mind, this Court makes the following orders:-a.The trial court’s order of 1st September, 2021 in Kiambu Criminal Case No. 1860 of 2017 is hereby reversed and set aside and is substituted with an order for adjournment as sought by the prosecution and accordingly the order closing the prosecution’s case vacated.b.b. The Kiambu Criminal Case No 1860 of 2021 shall be mentioned before the Chief Magistrate’s Court at Kiambu on 8th December, 2022 for the trial date to be fixed.c.This file shall henceforth be closed.

RULING DATED AND DELIVERED AT KIAMBU THIS 1ST DAY OF DECEMBER, 2022. MARY KASANGOJUDGECoram:Court Assistant: JuliaFor the Applicant instructed by (DPP): - Mr. GachariaFor Respondent Esther Wangui Kariuki :-Miss KaritaCOURTRuling delivered virtually.MARY KASANGOJUDGE