[2023] KEHC 27027 (KLR)

Republic v Kiplagat & 8 others (Criminal Revision E010 of 2023) [2023] KEHC 27027 (KLR) (Anti-Corruption and Economic Crimes) (18 October 2023) (Ruling)

Neutral citation: [2023] KEHC 27027 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Anti-Corruption and Economic Crimes

Criminal Revision E010 of 2023

NW Sifuna, J

October 18, 2023

Between

Republic

Applicant

and

Hon. Henry Rotich Kiplagat

1st Respondent

Kennedy Nyakundi Nyachiro

2nd Respondent

Jackson Njau Kinyanjui

3rd Respondent

David Kipchumba Kimosop

4th Respondent

William Kipkemboi Maina

5th Respondent

Paul Kipkoech Sereme

6th Respondent

Francis Chepkonga Kipkech

7th Respondent

Titus Muriithi

8th Respondent

Geoffrey Mwangi Wahungu

9th Respondent

Ruling

1. This ruling is on a revision application arising from proceedings in Nairobi Cm’s Court Anti-corruption Case No 20 of 2019 Republic v Hon Henry Rotich Kiplangat & 8 others. The case is on-going in the Nairobi Chief Magistrate’s Anti-Corruption Court at Milimani Law Courts. It is currently before Hon E Nyutu, a Senior Principal Magistrate in that Court.

2. The application which is dated September 12, 2023, was filed pursuant to the provisions of article 165 (6) and (7) of the Constitution, as well as section 362 of the Criminal Procedure Code (cap 75 Laws of Kenya). By it, the applicant the Director of Public Prosecutions (DPP), sought the following orders:1. (Spent).2. A stay of proceedings in Nairobi Cm’s Court Anti-corruption Case No 20 of 2019 Republic v Hon. Henry Rotich Kiplangat & 8 Others, pending the determination of this Application.3. A stay of proceedings in Nairobi Cm’s Court Anti-corruption Case No. 20 of 2019 Republic v Hon Henry Rotich Kiplangat & 8 Others, pending Hon Eunice K Nyutu’s determination of the applicant’s Application for her recusal; and which Application is still pending before her for a Ruling.4. The setting aside of the directions issued on September 12, 2023 by the said Hon Eunice K Nyutu in the said Criminal Case, fixing it for mentions for directions on the said recusal Application.5. That this Court calls for the said trial court’s record, for perusal as to the legality, propriety and correctness of the impugned proceedings.6. That the said Nairobi Cm’s Court Anti-corruption Case No 20 of 2019, be handled by a magistrate other than Hon Eunice K Nyutu.

3. The application has cited various grounds enumerated therein, and which principally accuse the said learned trial magistrate of bias, that the applicant has stated, was exhibited in her declining to allow adjournments that the applicant considers to have been merited; that she has been compelling the prosecution witnesses to proceed, and setting short timelines. This is the substance of the DPP’s grievance in this application.

4. The application was supported by the supporting affidavit of Geoffrey M Obiri, a Prosecution Counsel working at the Office of the DPP; and who is also the one that signed the certificate of urgency and the motion itself. The application was disposed by way of written submissions. Notably, only the DPP the applicant filed submissions dated October 13, 2023. The Advocates for the Accused persons did not file any submissions, and neither did they file any response to them- either in support or in opposition. The submissions reiterated the same lamentations paraded in the application and the supporting affidavit.

5. The reason for the accused persons finding it needless to file any submissions on the application, is indeed deducible from the DPP’s own filed submissions. Which in paragraph 12 stated as follows: “Only counsel representing one accused person filed a response to the recusal of the trial magistrate, and in our honest opinion this shows that a majority of the counsels agree with our claim that there is manifest bias.”

6. In any case as would predictably and obviously be expected, this application favours and promotes the interests and welfare of the accused persons. Hence the accused did not file any opposition to it, and it was unopposed. That leaves this application with no opposition at all, thus rendering it an application against the trial court and the said magistrate, who having not been joined in these proceedings could not file any response and therefore had no one to speak for theM Thereby making this a one-sided show. Pretty much like the mugithi music’s one-man guitar.

7. Ordinarily, a revision court or appellate court such as this, would expect some response. But by the very nature of revision proceedings it is expected to simply peruse the record and determine whether or not to upset the impugned decision and condemn the impugned proceedings.

8. In my view this is an unfair scenario, unless the applicant for a revision files the application and leaves it to the High Court to decide. Where the applicant is allowed to argue the application or file submissions, it would be prudent and in accordance with the rules of natural justice, that the trial magistrate whose conduct of the proceedings or decision is impugned is given a chance to file an explanation stating his or her version of the events.

Analysis and Determination 9. Upon receiving the application and certifying it for urgent hearing, I called for the record of the trial court i.e the original court file. The said record was availed to me for perusal and appraisal, and to inform my determination of the application. In reaching this determination, I have read the applicant’s application, supporting affidavit and written submissions, as well as the relevant law and applicable legal principles relating to criminal revision.

10. I have identified two principal issues for determination in this application. Namely: (1) Whether I should grant the orders sought by the DPP in this application, and (2) What directions should I issue, for the forward march of Nairobi Cm’s Court Anti-corruption Case No. 20 of 2019? My determination is this Application turns, on these two issues.

11. In Kenya, the High Court’s power of criminal revision (revisionary jurisdiction) is provided for in article 165 (6) and (7) of the Constitution, as read together with sections 362 and 364 of the Criminal Procedure Code. Under the latter legislative provisions, the High Court may call for a record of a subordinate or other inferior Tribunal, an examine it as to its “legality, correctness, legality, propriety or regularity”. The use of these specific words is, in my view, deliberate. Musyoka J in Serogo Alex & 3 others v Republic [2022] eKLR, stated that a revision largely turns on technicalities relating to legality, propriety, regularity or correctness of the decision.

12. The power was again aptly summarized by Odunga J (as he then was) in Joseph Nduvi Mbuvi v Republic [2019] eKLR, as follows:“In my considered view, the object of the revisional jurisdiction of the High Court is to enable the high Court in appropriate cases, whether during the pendency of the proceedings in the subordinate court or at the conclusion of the proceedings to correct manifest irregularities or illegalities and give appropriate directions on the manner in which the trial, if still ongoing, should be proceeded with.“In other words, the High Court’s revisionary jurisdiction includes ensuring that where the proceeding in the lower court has been legally derailed, necessary directions are given to bring the same back on track so that the trial proceeds towards its intended destination without hitches. Not only is the jurisdiction exercisable where the subordinate court has made a finding, sentence or order but goes on to state that it is also exercisable to determine the regularity of any proceedings of any such subordinate court as well.”

13. Freelance and wanton revisions (especially interlocutory revisions), can really interfere with the decisional independence of subordinate courts, and the smooth running of their proceedings. Hence the need for regulation and moderation. As even in some extreme extents amount to arm-twisting of those subordinate courts and tribunals. In Joseph Nduvi Mbuvi v Republic [2019] eKLR, Odunga J (as he then was) stated that the revisionary jurisdiction of the High Court, should not be used to micro-manage subordinate courts.

14. This court cannot use the power of revision to micro-manage proceedings in the lower court. For instance, as is urged in this revision, probe the deservedness of every adjournment sought by the parties in the trial court and interrogate the trial court’s every decision on each application for an adjournment. This will be an absurdity. On an adjournment, this court can only be called upon to intervene in exceptional, manifest and extreme circumstances. For instance where a denial of adjournment, has resulted in a violation of the constitutionally protected right to a fair hearing. Provided also that the revision does not result in an absurd consequence such as an unnecessary disruption of the trial court’s diary.

15. Apart from the instant Application, there has been another revision Application arising from the same proceedings i.e Nairobi Anti-Corruption Criminal Revision No 20 of 2019. Both by the DPP. There is also the recusal Application for this same magistrate’s recusal, and which is still pending Ruling before her. This is therefore a three-front military like attack, as all the three applications are ostensibly aimed at frustrating and eventually ousting the trial magistrate from the case. These incessant, sustained and almost nuisancical persistent adverse efforts by the prosecutor, are in my view among other ulterior motives, calculated to oust the learned trial magistrate from the case. Ostensibly for her firm stand on procrastination and match-fixing by the prosecutor.

16. To sit in the Anti-Corruption Court, a judicial officer needs to have a spine of steel. Because corruption like a dragon or devourer, fights back so viciously and tirelessly. Like a hurricane, it wishes not to leave anything in its wake, except destruction. An Anti-Corruption Court should have the resilience of the fictional Lemuel Gulliver of Jonathan Swift’s fiction, Gulliver’s Travels (1726). The more he was tormented by the vicious Liliputians, the stronger he became.

17. The other two applications and this instant application together with the prosecutor’s other negative energies, were made in respect of the same trial proceedings and targeted the same judicial officer. These were for motives other than the promotion of the rule of law, the protection of rights and the administration of justice. They are manifestly made in bad faith. With the pre-meditated intention of intimidating, blackmailing, arm-twisting, frustrating the trial magistrate and subdue her into dancing to the prosecutor’s whim To put her at his beck and call.

18. That is not only an abuse of the court process, but also an affront to judicial authority and judicial independence. I refuse to be part of such a reckless and deviously conceived malicious uncanny attack on the dignity, authority and independence of the trial court. It is a horse I cannot place my bet on; and in remaining true to my oath of office, I refuse to toy along. The High Court should in exercising its revisionary jurisdiction not be complicit, or watch hopelessly, helplessly, desperately and delight in a bullish litigant or litigator trampling the independence, dignity and authority of the subordinate court. Or passively watch the multi-prong lynching and onslaught the office of the DPP has in this case mounted against the learned trial magistrate.

19. The prosecution should not be allowed to with gusto initiate criminal proceedings, and then later for mysterious reasons or no reason at all, become cosy with the defence, and start intimidating and provoking the court with the hope of thereby securing complicity in the unweighted or extra-legal withdrawal or termination of the case. Judicial officers are dispensing a divine role in the temple of justice, hence should not be the guinea pigs, scapegoats or sacrificial lambs for a sneaky and schemy prosecution that has abdicated its public prosecutorial role and become an agent of the defence.

20. A trial court, and even a revision court such as this, should resist being an actor in a choreographed scheme whose final mission is the frustration and subsequent premeditated withdrawal or termination or abandonment of a case that is supposed to be prosecuted to its logical end. It is sad for the prosecution “to abandon its seat” and join the defence in collapsing the case. It is deplorable that the prosecution has in this case trained its guns on the trial magistrate (its presumed soft target), and not its adversary the accused.

21. The prosecution should find a more honourable and sensible way of abandoning its own case. As of now this case is on its own as the prosecutor has abandoned its corner and joined the defence. This was a very unfortunate case of a sustained and persistent onslaught on the magistrate by the prosecutor. This he did through intimidation, harassment, blackmail, insubordination and outright bullying.

22. This is a case where the prosecutor instead of prosecuting the case, chose to take on the presiding magistrate. In such a scenario, the accused persons simply sat back with folded hands, and enjoyed the unfolding drama. I must call out the leaned prosecutor for this. With remote prospects of ever being put on their defence, such accused persons may even start regretting their having committed substantial finances and resources on the needless hiring of defence counsel. As their interests and aspirations in the case are effectively being pursued by the prosecutor.

23. A public prosecutor must conduct the case in a manner that promotes the public interest and the public good. To abandon these two aspirations, and embark on advancing the narrow agenda and private interest of the defence, is an abdication of public duty. The motivation for such dereliction of duty, could be spurred by inter alia, Kenya’s lack of formal mechanisms or outfit for holding public prosecutors liable for negligent or willful loss of cases.

24. Had we any, such clear sabotage, frustration, scuttling, scattering, and the bungling of cases would be a thing of the past. Especially when the cases involve a public agenda, national security, safety of the citizenry, or arise from loss of public funds such as in this instant which alleges loss or misappropriation of over Ksh 63 billion of public funds. Parliament or the Office of the Public Prosecution (ODPP) itself ought to develop regulations for making public prosecutors accountable for the manner in which they conduct cases, and hold them accountable for negligent as well as willful, premeditated and connived loss of cases.

25. Afterall they are under article 232 of the Constitution expected to discharge their duties with competence and high standards of ethics. While article 10 binds them to act with patriotism, integrity, transparency and accountability. They should therefore not act in a manner that betrays the public good, the public interest, or their duty of patriotism. In Asian countries such as Singapore, Malaysia and India, employment in public service such as office of public prosecutor, is considered not only a privilege, but a higher calling as well.

26. In criminal cases, a public prosecutor has a duty to prove the case brought to trial and plead for an appropriate judgement. He should prosecute with honesty, diligence, appropriate vigour (and not negative energy); and should believe in the case. He should not be involved in uncanny, shadowy, and mischievous designs or schemes aimed at defeating the case or engineering its loss.

27. Such designs and schemes are not only improper, mutinous and unethical, but also erode the public confidence in the office of public prosecutor. By the public nature of his work and patriotic duty, his conduct and performance should be beyond reproach, honourable, and in consortium with the ethics of the legal profession.

28. That was not the case here. Clearly, the prosecution’s (or is it the DPP’s?) wish to withdraw this case having been rejected by the trial magistrate, this prosecutor instead of pursuing the avenue of appeal, instead embarked on a discernibly choreographed pattern of willfully killing the case by attrition and have it die a “natural death”. This action is condemnable, and I hereby condemn it loudly.

Final Orders 29. I have in this ruling found that this revision was spurred and motivated by motives and shadowy interests, rather than the rule of law and the administration of justice. The same is manifestly devoid of law, lacks merit, and is principally an affront to judicial independence and the administration of justice. It should therefore deservedly suffer but one fate; dismissal.

30. It is therefore hereby dismissed accordingly. With the consequence that the proceedings in the trial court in Nairobi Anti-corruption Case No. 20 of 2019 should resume forthwith, and proceed without any adjournment(s) except such as the trial magistrate may in deserving circumstances certify and record.

31. I further direct that this case be proceeded with and be completed within six (6) months from the date of this ruling, except as may be certified by the trial court, and for reasons to be recorded by it. This ruling be served by the deputy registrar, upon the new director of Public Prosecutions, for noting and compliance.

32. This court having found Mr Obiri’s conduct in those proceedings condescending, inappropriate, unethical and uncalled for, I hereby order him to tender an unconditional verbal apology to the trial court when it resumes sittings, and thereafter prosecute the case in accordance with his public duty as a public prosecutor and the professional ethics of the legal profession.

33. In future, Kenya should have regulations that provide for liability and sanction for investigators and public prosecutors who bungle cases or lose them through neglect or willful conduct such as the one adopted by the prosecutor in the case the subject of this application. Such will be in line with article 10 and article 232 of the Kenya Constitution.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 18TH DAY OF OCTOBER 2023. PROF (DR) NIXON SIFUNAJUDGE