[2022] KEHC 621 (KLR)

Republic v Mary (Criminal Case E018 of 2022) [2022] KEHC 621 (KLR) (Crim) (14 June 2022) (Ruling)

Neutral citation: [2022] KEHC 621 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Case E018 of 2022

LN Mutende, J

June 14, 2022

Between

Republic

Prosecution

and

John Gitau Mary

Accused

Ruling

1. John Gitau Mary, the Accused, was arraigned in court on March 22, 2022 following allegations of having contravened the provisions of Section 203 as read with Section 204 of the Penal Code, information that he denied.

2. On the May 24, 2022, the Director of Public Prosecutions(DPP) through learned Counsel Mr. Okeyo filed a Nolle Prosequi seeking to discontinue the criminal charges against the accused pursuant to the provisions of Article 157 (6) (c) (9) of the Constitution, an application that is vehemently opposed.

3. The intention to terminate the charge against the accused is based on grounds that the accused is a Kenya Defence Forces (KDF) officer and major witnesses in the matter are from KDF. That according to the provisions of Section 133 of the KDFAct the matter falls under the jurisdiction of the Court Martial as the deceased was an army officer just like the accused.

4. The application by the DPP is contested. It is argued by learned Counsel for the defence, Mr. Musyoki that the case can only be withdrawn with the permission of the court and after satisfactory reasons are given. He argued that Section 133 of the KDFActempowers the Court Martial to hear and determine civilian offences but the same law under Section 56 of the Act prohibits the Court Martial to interfere with civil offences where civil courts have jurisdiction.

5. That Section 3, 4 and 5 (2) and schedule 1 of the Criminal Procedure Code vests the High Court with jurisdiction to determine the case of murder. That the Court Martial is silent on the jurisdiction of the Presiding Officer and the qualifications, and, that Section 133 of the KDF Act is in conflict with Section 56 of the Act.

6. He concluded by arguing that the accused would not enjoy the benefit of his constitutional rights under Article 50 of the Constitution as the KDF Actdoes not provide for bond/bail.

7. In a rejoinder Mr. Okeyo argues that the Court Martial is seized of jurisdiction to determine the matter.

8. I have duly considered rival arguments by both Counsels. The State through the DPP has notified this court of the intention to terminate the case. Special powers granted to the DPP to terminate a suit as provided by the basic principles and laws of the State are provided for in Article 157 (6) (7) (8)of the Constitution as follows:(6)The Director of Public Prosecutions shall exercise State powers of prosecution and may—(a)Institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed;(b)Take over and continue any criminal proceedings commenced in any court (other than a court martial) that have been instituted or undertaken by another person or authority, with the permission of the person or authority; and(c)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 (b).(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.

9. Following the discretion granted to Parliament by Article 157 (12) of the Constitution, it enacted the Office of Director of Public Prosecutions Act (ODPP Act) which gives effect to Article 157 of the Constitution and for associated/related purposes.Section 25 (1) of the ODPP Act provides that:The Director may, with the permission of the court, discontinue a prosecution commenced by the Director, any person or authority at any stage before delivery of judgement...

10. In exercise of its discretion pursuant to the constitutional mandate to terminate these proceedings the DPP sought leave based on the fact that the accused will be indicted again but before the Court Martial.

11. It is not in dispute that the accused is an officer commissioned in the Defence Forces based at Embakasi Garrison – Nairobi. Further, no argument has been raised to counter the fact of the deceased having been an officer in the service of the Defence Forces. Section 133 (1) of the Kenya Defence Forces Act (Act) provides that:A person subject to this Act who commits a civil offence whether in Kenya or elsewhere, shall be, on conviction by a court-martial—(a)If the civil offence is treason or murder, sentenced to death; and(b)In any other case, liable to any punishment which a civil court could award for the civil offence if committed in Kenya being one or more of the punishments provided for by this Act, or such punishment, less than the maximum punishment which a civil court could so award, as is provided for by this Act.

12. A Civil Court is defined by the KDFActas any court of ordinary criminal jurisdiction. A civil offence is defined by the Act to include offences committed under some written law other than the Act or an act or omission which if committed in Kenya would constitute an offence. The offence of murder is deemed to be an act or omission that offends the law as provided by the Penal Code, a written law contemplated under Section 2 and 133 of the KDFAct. The Act therefore expressly grants the Court Martial jurisdiction to determine murder charges and Section 133 (1) (a) of the Act is clear on that fact such that it does not leave room for doubt.

13. It is argued that Section 133 is in conflict with Section 56 of the KDF Act. Section 56 of the Act states that :Nothing in this Act or any order, disciplinary code, rules, regulations or manual shall affect the jurisdiction of any civil court to try a person for any offence triable by a civil court…Section 211 of the KDF Act provides thus:(1)Nothing in this Act restricts the offences for which a person may be tried by a civil court, or the jurisdiction of a civil court to try a person subject to this Act for an offence other than an offence under Part VI.(2)Where a person—(a)a) Is tried by a civil court for a civil offence; and(b)Has already been sentenced to or awarded punishment for an offence under Part VI consisting of an act or omission that constitutes (whether wholly or in part) the civil offence, section 63 of the Interpretation and General Provisions Act (Cap. 2) shall not apply but the civil court shall, in sentencing the person, have regard to the punishment imposed in respect of the offence under Part VI.Murder is not one of the offences captured under Part VI of the Act.

14. According to Section 5(2) of the Criminal Procedure Code (Code) as read with the 1st schedule to the Code, the offence of murder is triable by the High Court. But, Section 5(1) of the Code is also clear it provides thus:An offence under any law other than the Penal Code (Cap. 63) shall, when a court is mentioned in that behalf in that law, be tried by that court.

15. In the instant case the fundamental issue is the fact of parties herein, the victim and accused having been people serving in the Military. The court best placed to hear the matter would be the Court Martial.

16. It is urged that the jurisdiction of the Court Martial is silent on the jurisdiction of the Presiding Officer and qualifications. Section 160 (1) of the KDF Act provides thus:(1)In the case of any proceedings, the courts martial established under Article 169 of the Constitution shall consist of—(a)A Judge Advocate, appointed under section 165, who shall be the presiding officer;(b)At least five other members, appointed by the Defence Court-martial Administrator if an officer is being tried; and(c)Not less than three other members in any other case.

17. The Judge/Advocate is a Magistrate or an advocate of not less than ten years standing.

18. It is expressed that the accused is apprehensive of not having a fair trial as envisaged in Article 50 of the Constitution and in particular the question of bail which is subject to the law that is very clear. Section 42 of the KDF Act provides that:All persons subject to this Act shall enjoy all rights and fundamental freedoms enshrined under Chapter Four of the Constitution unless limited to the extent specified in Article 24(5) of the Constitution, this Act or any other Act.

19. The question I should therefore grapple with is whether the DPP has acted in the interest of justice and in good faith?. With that in mind I must bring to my mind the fact of the DPP having the mandate to exercise the power. This is a matter where witnesses have not been availed to testify, therefore a question of witnesses being recalled to testify will not arise.

20. Following the provisions of the law, the court must be bound by tenets of fair trial which include not limiting the rights as espoused in Article 50 of the Constitution. It has therefore not been demonstrated that the application has been made in bad faith and/or following abuse of prosecutorial powers.

21. In the result, the proceedings against the accused for the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code be and are hereby terminated pursuant to the provisions of Article 157 (6) (c) and (9) of the Constitution. Accordingly, the accused is discharged.

22. It is so ordered.

DATED, SIGNED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 14TH DAY OF JUNE, 2022. L. N. MUTENDEJUDGEIn the Presence of:AccusedMr, Musyoki for AccusedMr. Okeyo for DPPCourt Assistant – Mutai