Republic v Maina & 6 others (Miscellaneous Criminal Application E030 of 2023) [2026] KEHC 4982 (KLR) (16 April 2026) (Ruling)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KAJIADO MISCELLANEOUS CRIMINAL APPLICATION NO E030 OF 2023 REPUBLIC…………………………..………………………..……...APPLICANT VERSUS CHRISTOPHER MAINA ……………………….….….…1ST RESPONDENT JAMES MURIRA………………………….…………......2ND RESPONDENT BENARD NG’ANG’A.....……………………………........3RD RESPONDENT JOHN IGUTHI……………………………………….…….4TH RESPONDENT NICHOLAS MUYA...................................................5 TH RESPONDENT PETER WAITHUNGURI………………………..………..6TH RESPONDENT BENARD NDONGA……………………………..………..7TH RESPONDENT RULING 1. The brief background to the notice of motion dated 24th May, 2023 brought by the Director of Public Prosecutions (DPP) is as follows. On 18th January 2021 Christopher Maina, James Murira, Bernard Gichui, John Iguthi, Nicholas Muya, Peter Waithunguri and Bernard Ndonga were arraigned before the CM’s Court at Ngong in CM’s Criminal Case No. E169 of 2021 Judgment HC .Misc. Cr. Appln. No E030 OF 2023 1 (hereafter the subject case) as the 1st to 7th accused, respectively (hereafter the 1st to 7th Respondents respectively). 2. By the consolidated charge subsequently presented on 17.08.2022, the date earlier set for the hearing, the Respondents were jointly charged in count 1 with the offence of Intermeddling contrary to Section 45(1) as read with Section 45(2) of the Law of Succession Act. The particulars thereof being that on diverse dates between 4th September 2014 and 12th August 2018 at Ngong in Kajiado North sub-county within Kajiado County, without a grant of representation or any lawful authority, they jointly disposed of land parcel No. Kajiado/Ntashart/316, the property of the late Tipanko Ole Silonka and Magdalene ene Tipango. 3. The 5th Respondent separately faced a second count of Obtaining money by false pretences contrary to Section 313 of the Penal Code. In that on diverse dates between 4th September 2014 and September 2015, at Ngong in Kajiado North sub-County within Kajiado County, with intent to defraud he obtained the sum of sum of Ksh. 2.9 million from Tipanko Koisenke by falsely pretending that he was in a position to sell 10 acres of land being land parcel No. Kajiado/Ntashart/ 316, a fact he knew or believed to be false. Judgment HC .Misc. Cr. Appln. No E030 OF 2023 2 4. The Respondents denied the charges and the hearing was adjourned at the instance of the defence. Hearing eventually commenced on 1.11.2022 when three witnesses, including the complainant testified. Thereafter two more witnesses testified between 24.01.2023 and 12.05.2023 when the prosecution were granted the last adjournment to call the land registrar who had been bonded but was absent. The hearing was adjourned to 23.05.2013. 5. The proceedings of the latter date indicate that the prosecution counsel addressed the trial court as follows: ‘’I am not ready to proceed as we were to have the (land) registrar to testify. I am informed that the land registrar was not able to access the documents in relation to this case’’. 6. Only counsel for the 6th and 7th Respondent opposed the application for adjournment stating as follows: ‘’We oppose the application as the prosecution was granted a last adjournment. The land registrar was expected last time and he did not attend court. The submissions that documents were transferred is an afterthought and the registrar had time to Judgment HC .Misc. Cr. Appln. No E030 OF 2023 3 prepare ..the registrar is also not before the court. He ought to have come and explain (sic). We oppose the application’’. 7. The trial court in its ruling stated that: “ I note that the prosecution was granted a last adjournment. The last time the matter came up for hearing it was adjourned as the land registrar was not present. Investigation of the case ought to have concluded by now and all documents relating to the case ought to have been in the possession of the investigation officer. I do not therefore understand the reason being given that the land registrar is still looking for some documents in the land registry. The application for adjournment lacks merit and I disallow the same’’. 8. Whereupon the prosecution counsel applied to withdraw the charges under Section 87(a) of the Criminal Procedure Code (CPC) to which none of the accused persons expressed opposition. However the court proceeded to rule as follows: “I have considered the application by the prosecution and note that 5 witnesses have testified in the case. That being the position, I Judgment HC .Misc. Cr. Appln. No E030 OF 2023 4 decline to withdraw the case under Section 87(a) of the CPC and will give a ruling on case to answer.”(sic) 9. Directions were then given for the filing of submissions and the ruling scheduled for 5.07.2023. 10. The foregoing proceedings prompted the motion dated 24.05.2023 and expressed to be brought inter alia under Articles 46 and 165(6)(7), of the Constitution and Sections 362, 364 and 367 of the CPC. The motion was primarily seeking that this court be pleased to call for and examine the record of proceedings in the subject case so as to satisfy itself of the correctness, legality or propriety of the order dated 23rd May, 2023 closing the prosecution case before all the prosecution witnesses had testified, and be further pleased to review and set aside the said impugned order. 11. The motion was supported by the affidavit sworn by Linda Nyauncho, a prosecution counsel, who after setting out the history of the subject case stated that one key witness, the land registrar, failed to attend the trial court on the material date because the Ngong Land Registry had been relocated to Kajiado West and had not become operational, making it impossible to access necessary documents, including the original green card. By way of further Judgment HC .Misc. Cr. Appln. No E030 OF 2023 5 explanation for the witness’s absence, she averred that land records for several areas had officially been transferred from Ngong to the Kajiado West registry . She contended that without the testimony of the land registrar and the investigating officer, the prosecution case would be greatly prejudiced leading to an unjust outcome. 12. Asserting that the impugned order was likely to cause substantial injustice through denial of a fair opportunity for the prosecution to present its full case, the deponent stated that there was no legal justification for the trial court’s refusal of both the application for adjournment or the withdrawal of charges. 13. The motion was opposed through several affidavits sworn by the Respondents. Each deponent commenced with a rehashing of the history of the subject case, followed by a defence of the impugned orders. Through his replying affidavit dated 12th June, 2023, the 1st Respondent accused the prosecution of causing numerous adjournments and delays. In his view, the present motion was dishonest, prejudicial, and intended to further delay the conclusion of the trial, thereby infringing on the accused persons’ right to a fair and expeditious hearing. Judgment HC .Misc. Cr. Appln. No E030 OF 2023 6 14. He asserted that the trial court acted properly, in accordance with the law and case management guidelines, and that proceedings should be allowed to come to an end. Moreover, the prosecution had alternative remedies such as lodging an appeal and that the current application was premature, vexatious, and without merit. He therefore urged the court to dismiss the application. 15. The 2nd Respondent in his replying affidavit dated 22nd April, 2025, sworn on his own behalf and on behalf of the 3rd and 4th Respondents averred that the trial magistrate acted properly, lawfully, and within its discretion in closing the prosecution’s case on 23rd May 2023. He disputes the prosecution claims and supports the position that the decision of the trial court was justified and procedurally sound. He also sought to rely on the contents of the replying affidavit sworn by the 6th Respondent on his own behalf and on behalf of the 7th Respondent. 16. The contents of the latter affidavit include the contention that the trial court exercised its discretion properly in issuing the impugned orders. Asserting that the prosecution did not have an automatic right to withdraw a case under Section 87(a), the deponent contended that the trial court gave reasons for its decision. He further contended that the present application Judgment HC .Misc. Cr. Appln. No E030 OF 2023 7 does not rise to the legal threshold for review by way of setting aside the trial court’s orders. 17. Finally, he asserted that the trial court correctly applied the law, and balanced the interests of justice in favour of the Respondents. In his view, the motion was without merit and ought to be dismissed. The 5th Respondent did not file a response to the motion, and until 2.07.2025 when Mr. Ochich came on record for him together with the 2nd to 4th Respondents, in addition to the 6th and 7th Respondents, the 5th Respondent had not participated in the proceedings. Submissions 18. The DPP, by submissions dated 20th August, 2025 highlighted the relevant proceedings in the lower court and argued that the trial court denied the prosecution a fair opportunity to present its full case, which right applies equally to both the complainant and the accused, and in this case the complainant was deprived of that right. 19. On whether this court ought to exercise its revisionary jurisdiction to correct the trial court’s decision, the DPP asserted that the trial court’s insistence on closing the prosecution case amounted to a denial of the right to be heard on material evidence, which runs counter to Articles 50(1) and Judgment HC .Misc. Cr. Appln. No E030 OF 2023 8 159(2)(a) of the Constitution. Here contending that excluding the testimony of the remaining witnesses could likely cause substantial injustice, if not corrected. 20. Regarding the revisionary powers of the High Court donated under Sections 362 and 364 of the Criminal Procedure Code to examine the correctness, legality, and propriety of lower court proceedings, the DPP cited the case of Kurukivi v Director of Public Prosecutions (Criminal Revision E013 of 2023) [2024] KEHC 1174 (KLR). To the effect that the jurisdiction exists to correct any illegality, impropriety, or irregularity in subordinate court proceedings, and that a trial court’s discretion under Section 87(a) CPC must be exercised judiciously in light of public interest and the fair administration of justice. 21. The DPP further argued that while trial courts have discretion in granting adjournments or allowing withdrawal of charges, such discretion must be exercised judicially and in the interests of justice. It is submitted that in this case, the trial court acted improperly by denying the prosecution the opportunity to present crucial evidence, which action portends the risk of substantial injustice. Judgment HC .Misc. Cr. Appln. No E030 OF 2023 9 22. In conclusion, the DPP asserted that the Respondents will not suffer prejudice if the case is reopened. Counsel urged the court to intervene by setting aside the impugned order to allow the remaining witnesses (the Land Registrar and Investigating Officer) to testify. Or alternatively, to permit withdrawal of the charges under Section 87(a) of the Criminal Procedure Code with liberty to reinstate them. 23. The 1st Respondent did not file any submissions. The submissions of the 2nd to 7th Respondents were filed by Mr. Ochich on their behalf and are dated 15th July, 2025. The submissions equally revisit the proceedings in the lower court before addressing two questions, namely, whether the trial magistrate properly exercised discretion in declining the adjournment, and whether the court has the power to refuse withdrawal of a case under Section 87(a). 24. On the first issue, it was argued that the grant or refusal of adjournments in a trial is discretionary and the discretion must be exercised judicially in line with Article 159(2)(b) and (d) of the Constitution, which stipulates inter alia that justice should not be delayed. As was held in KMM vs CMK (2020) eKLR. Counsel cited repeated adjournments occasioned by the prosecution and eventual failure to present its final witness, as justifying the impugned decision. Judgment HC .Misc. Cr. Appln. No E030 OF 2023 10 25. On the exercise of the revisionary jurisdiction, by the High Court, counsel cautioned that the court should only intervene in cases of clear illegality or impropriety, citing inter alia Office of the DPP vs Oyier and Another (Criminal Revision E009 of 2023). 26. On the question of the trial court’s discretion to either allow or refuse an application for withdrawal under Section 87(a) of the CPC, counsel relied on Kariuki vs DPP (Criminal Revision EOB of 2023) [2024] KEHC 1174 (KLR) inter alia. In conclusion, the Respondents asserted that the trial court acted lawfully and properly exercised discretion in issuing the impugned order. And contended that no illegality or impropriety has been demonstrated to justify the High Court’s intervention under its revisionary jurisdiction. Consequently, the court was urged to dismiss the motion. Analysis and Determination 27. The Court has carefully considered the material canvassed in respect of the motion. There can be no dispute that the trial court was clothed with discretion to consider the two applications before it and to make the impugned orders as it deemed appropriate. However, the discretion to grant or refuse an adjournment or an application of withdrawal of a criminal case under Section 87(a) of the CPC must be exercised judicially, taking into account all the Judgment HC .Misc. Cr. Appln. No E030 OF 2023 11 relevant circumstances. In a nutshell, the DPP’s complaint is that the impugned order impacts adversely on the public interest and administration of justice, in that it resulted in a denial of the right to be heard, therefore running counter to Articles 50(1) and 159(2)(a) of the Constitution. Thus portending substantial injustice if not corrected. Evidently, the Respondents have a different view, and have strongly defended the impugned order. 28. The motion before this court invokes not only the court’s revision power under Section 362 of the CPC, which is somewhat limited, but also the supervisory power of the High Court under Article 165 (6) and (7) of the Constitution. 29. The supervisory jurisdiction over subordinate courts and any person, body or authority exercising a judicial or quasi-judicial function is derived from the Article 165 (6) and (7) of the Constitution, while Sections 362 and 364 of the CPC specifically provide for the power of revision donated to the High Court in respect of criminal proceedings in the subordinate court. The former provides as follows: - ‘’(6) The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority Judgment HC .Misc. Cr. Appln. No E030 OF 2023 12 exercising a judicial or quasi-judicial function, but over a superior court. (7) For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice’’. 30. On the other hand, Section 362 of the CPC provides that: - ‘’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’’. 31. The Court of Appeal in the case of Amuno v Republic (2025) KECA 1617 (KLR) observed with regard to the Sections 362 and 364 of the CPC that: ‘’In view of the above, it is patent that the powers of revision under Section 362 of the CPC are invoked to enable the court Judgment HC .Misc. Cr. Appln. No E030 OF 2023 13 satisfy 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 subordinate Court. Therefore, if the Subordinate court’s decision is wanting in its correctness, legality or propriety or the proceedings are irregular, the High Court will no doubt step in and correct the same. It follows that if no such situation arises, then the High Court cannot purport to exercise those powers therein and revise a lawful, legal and regularly issued order of the trial court.’’ 32. The provisions of Article 165(6) and (7) of the Constitution and Sections 362 to 367 of the CPC were considered by the Court of Appeal in Simiyu vs Nyakongo & Anor. (2023) KECA 66 (KLR), which was an appeal from a criminal revision decision in the High Court. In that case the appellant lodged an appeal to the Court of Appeal against the order of the High Court by which the Court reviewed and set aside the order of the Chief Magistrate’s Court in a criminal case, acquitting the appellant under Section 202 of the Criminal Procedure Code (hereinafter CPC), and ordered a reinstatement of the criminal Judgment HC .Misc. Cr. Appln. No E030 OF 2023 14 case and arraignment of the appellant before the lower court, to answer the charge he had faced previously in the same Court. 33. The appellant had argued before the Court of Appeal that the High Court erred in finding that it had supervisory jurisdiction under Section 362 and 364 of the CPC and Article 165 (3), (6) & (7) of the Constitution to entertain the 1st respondent’s application, to set aside the acquittal order made by the trial magistrate, and to re-instate the criminal charges in the criminal case. 34. The Court of Appeal considered the jurisdiction of the High Court under the foregoing provisions, and stated as follows: “‘Before we deal with the issues that arise in this appeal, let us first consider whether the jurisdiction of the High Court donated under Section 362 to 367 of the CPC, can be equated to the jurisdiction prescribed under Article 165 (6) & (7) of the Constitution. Mativo, J. (as he then was) in the persuasive authority in the case of Rana Auto Selections Ltd & 2 others v Kenya Revenue Authority & another (Judicial Review Application 9 of 2020) Judgment HC .Misc. Cr. Appln. No E030 OF 2023 15 [2021] KEHC 323 (KLR) had this to say about the purpose and application of supervisory jurisdiction of the High Court: ‘’Supervisory jurisdiction refers to the power of superior courts of general superintendence over all subordinate courts. Through supervisory jurisdiction, superior courts aim to keep subordinate courts within their prescribed sphere and prevent usurpation. In order to exercise such control, the power is conferred on superior courts to issue the necessary and appropriate writs. This power of superintendence is conferred by article 165 (6) of the Constitution. As was pointed out by Harries, C.J. in Dalmia Jain Airways Ltd. v Sukumar Mukherjee 1953 SC 58, this power is to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority and not for correcting mere errors. This power involves a duty on the High Court to keep the inferior courts and tribunals within the bounds of their authority and to see that they do what their duty requires and that they do it in a legal manner. But this power does not vest the High Court with any unlimited Judgment HC .Misc. Cr. Appln. No E030 OF 2023 16 prerogative to correct all species of hardship or wrong decisions made within the limits of the jurisdiction of the Court or Tribunal. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principle of law or justice, where grave injustice would be done unless the High Court interferes. As the Supreme Court of India stated unless there is grave miscarriage of justice or flagrant violation of law calling for intervention, it is not for the High Court under article 165 (6) of the Constitution to interfere.” 35. With regard to the provisions of sections 362 and 364 of the Criminal Procedure Code, the Court of Appeal proceeded to express the following view: “We now make reference to the persuasive judgment delivered by the Indian Apex Court in the case of Krishnan and Another v Krishnaveni and ano {1997} 4 SCC 241. The Court extensively interpreted the relevant provisions of the Indian Criminal Procedure Code, [which are quite similar to our own CPC, Sections 362 to 364 on the revisionary power of the High Court, and made the following observations: Judgment HC .Misc. Cr. Appln. No E030 OF 2023 17 ‘’It is seen that exercise of the revisional power by the High Court .................... is to call for the records of any inferior Criminal Court and to examine the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court and to pass appropriate orders. ....................Section 397 gives powers to the High Court to call for the records as also suo motu power under Section 401 to exercise the revisional power on the grounds mentioned therein, i.e., to examine the correctness, legality or propriety of any finding, sentence or order, recorded or passed and as to the regularity of any proceedings of such inferior Court, and to dispose of the revision in the manner indicated under Section 401 of the Code. The revisional power of the High Court merely conserves the power of the High Court to see that justice is done in accordance with the recognized rules of criminal jurisprudence and that its subordinates Courts do not exceed the jurisdiction or abuse the power vested in them under the Code or to prevent Judgment HC .Misc. Cr. Appln. No E030 OF 2023 18 abuse of the process of the inferior Criminal Courts or to prevent miscarriage of justice. The object of Section 483 and the purpose behind conferring the revisional power under Section 397 read with Section 401, upon the High Court is to invest continuous supervisory jurisdiction so as to prevent miscarriage of justice or to correct irregularity of the procedure or to meet out justice. ...........................The power of the High Court, therefore, is very wide. However, High Court must exercise such power sparingly and cautiously ...........................However, when the High Court notices that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior Criminal Court in its juridical process or illegality of sentence or order." (Emphasis added).” 36. The Court of Appeal concluded by stating that: Judgment HC .Misc. Cr. Appln. No E030 OF 2023 19 ‘’Undoubtedly the High Court’s power of revision under the provisions of Sections 362 and 364 of the CPC , and indeed under the entire spectrum of Sections 362 to 367 of the CPC , are limited to finding, sentence or order recorded or passed by a subordinate court, other than an order of acquittal. The provisions are clear that the High Court in exercise of the power of revision, may call for the record which has been reported for orders, or which otherwise comes to its knowledge. The High Court’s attention could be drawn through any medium including social media. That means that in the exercise of the power of revision, the High Court could also act suo motu. It is therefore safe to say that no formal mode of approaching the Court or of drawing the Court’s attention is required or is necessary before the revision process can be invoked. The power of revision is limited to examination of 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. Judgment HC .Misc. Cr. Appln. No E030 OF 2023 20 37. In juxtaposing the limited power of revision above against the wide spectrum of the supervisory powers donated to the High Court under Articles 165(6) and (7) the Court of Appeal had this to say: ‘’It is worth noting that under article 165 (6) of the Constitution takes a completely different approach and confers a supervisory jurisdiction on the High Court, not only over subordinate courts but is exercised over any tribunal, person, body or authority exercising a judicial or quasi-judicial function. The only rider is that the High Court cannot exercise the supervisory power over a superior court. This jurisdiction is also not limited to criminal proceedings only but covers proceedings of civil nature. Further it is not limited to the High Court 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, but in addition to the powers under the CPC , the Constitution has expanded the scope of the High Court’s power to “make any order, or give any direction it considers appropriate to ensure the fair administration of justice”. So that if the High Court in the exercise of its supervisory jurisdiction calls for a record and finds that there was an unfairness Judgment HC .Misc. Cr. Appln. No E030 OF 2023 21 in the administration of justice by the subordinate court, body or tribunal the High Court may intervene even if there may be no other challenge to the proceedings, order or sentence, whichever is the case”. 38. Thus, the supervisory power of this court under Article 165(6) of the Constitution as invoked here by the Applicant not only subsumes, but surpasses its limited revisionary power under Section 362 of the CPC. In the above case, the court found that: ‘’The learned High Court Judge was right when she found that the High Court had supervisory jurisdiction under article 165 (6) & (7) and Section 362 and 364 to make any order on revision and to give any direction it considered appropriate to ensure fair administration of justice. We go further and find that the decision reached by the learned Judge in this matter was justified for the reasons we have shown in this judgment’’. 39. Returning now to the undisputed facts of the instant case, the prosecution had already called three witnesses including the complainants on 1.11.2022 and two more by 12.05.2023 when the last adjournment was Judgment HC .Misc. Cr. Appln. No E030 OF 2023 22 granted. The record reflects that until that point, the defence had not opposed the prosecution applications for adjournment. 40. The record of the proceedings of 23.05.2023, specifically on the address by prosecution counsel, does not appear to capture the fuller explanation now offered in the affidavit supporting the present motion. This is because in the response address by Mr. Ochieng as captured in the lower court record of 23.05.2023, counsel for the 6th and 7th Respondent in opposing the application for adjournment adverted to the transfer presumably of land registry documents. He also stated that the registrar had had adequate time to prepare and should at least have attended court to give an explanation. 41. In the supporting affidavit to the instant motion, the prosecution attributes the failure to call the land registrar to administrative challenges, particularly the relocation of part of the Ngong Land Registry to Kajiado West land registry, which had affected access to crucial records and to the non- availability of the Land Registrar. Further, a copy of a duly served witness summons upon one Rahab, land registrar Kajiado West dated 21.05.2023 and notice dated 11.05.2023 regarding the establishment of the Kajiado West Land registry are attached to the affidavit as annexures LN2 and LN4, respectively. Judgment HC .Misc. Cr. Appln. No E030 OF 2023 23 42. It is not clear as to how much of the above information was placed before the trial court because in rejecting the application for adjournment the trial court observed that it ‘’did not understand the reason being given that the land registrar is still looking for some documents in the land registry’’. 43. Suffice to say that in as much as the case had been delayed, only one key witness, who had apparently been bonded, was outstanding. Given the nature of the offences, especially the first count which carries a high public interest element and the fact that the re-organisation of the registry had apparently happened after the last adjournment had been granted, the trial court ought to have, in balancing the competing rights of the parties before it, to a fair and also expeditious trial under Article 50(1) and 50(2) (e), invoked its powers to compel the attendance of the land registrar. Rather than force closure of the prosecution case and refuse withdrawal under Section 87(a) of the CPC. 44. It is true that the Constitution commands that justice must not be delayed. However, the process of administration of justice must also be seen to be fair to all parties before the court, especially by granting reasonable opportunity to present their respective cases. Moreover, a trial court which Judgment HC .Misc. Cr. Appln. No E030 OF 2023 24 has granted a last adjournment is not held hostage by its own order when considering a further request for adjournment, but still retains discretion to change course, where the justice of the case demands otherwise. Firmness must be exercised to ensure that the interests of justice are safeguarded at all times. 45. As indicated here, with the exception of counsel for the 6th and 7th Respondents, other Respondents did not state how a further adjournment would prejudice them. Before this court, they have correctly lamented the delay of thematter in the lower court even though by their own delayed responses to the present motion despite notice, it has taken over two years to conclude this matter. Having considered all the matters herein, the court is persuaded to intervene by invoking its jurisdiction under Article 165(6) and (7) of the Constitution and Sections 362 and 364 of the CPC to make an appropriate order, to give directions to ensure the fair administration of justice as follows: a. The order of the trial court issued on 23.05.2023 refusing adjournment to the prosecution and closing the prosecution case is hereby set aside. Judgment HC .Misc. Cr. Appln. No E030 OF 2023 25 b. The prosecution case is re-opened to enable the prosecution to summon remaining witnesses, namely, the land registrar and the investigating officer to testify before the trial magistrate, or the magistrate who may have since replaced him, pursuant to the provisions of section 200(3) of the CPC. c. The lower court file shall immediately be remitted to the CM’s Court at Ngong, to facilitate mention on 7.05.2026 for purposes of fixing a hearing date. DELIVERED AND SIGNED ELECTRONICALLY AT KAJIADO ON THIS 16TH DAY OF APRIL 2026. C. MEOLI JUDGE In the presence of: For the State: Ms. Kambaga For the Appellant: Mr. Ochich for the 2nd to 7th Respondents 1st Respondent: N/A C/A: Lepatei Judgment HC .Misc. Cr. Appln. No E030 OF 2023 26