[2023] KEHC 23693 (KLR)

Republic v Migiro & 3 others (Criminal Case E009 of 2023) [2023] KEHC 23693 (KLR) (19 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23693 (KLR)

Republic of Kenya

In the High Court at Nyamira

Criminal Case E009 of 2023

WA Okwany, J

October 19, 2023

Between

Republic

Prosecutor

and

Ezekiel Mogeni Migiro

1st Accused

Peris Ondara

2nd Accused

Dennis Ondara Clement

3rd Accused

Peter Njoroge Kirika

4th Accused

Ruling

1. I have considered the objection raised by Counsel for the defence over the decision by Counsel for the State to allow the Counsel watching brief for the victims to respond to the defence’s objection to the production of the Exhibits by PW9. Participation of victims in criminal trials is provided for under Article 50 of the Constitution which stipulates as follows: -(7)In the interest of justice, a court may allow an intermediary to assist a complainant or an accused person to communicate with the court.(9)Parliament shall enact legislation providing for the protection, rights and welfare of victims of offences.

2. The Victims Protection Act No 17 of 2014 gives effect to Article 50 (9) through Section 9 thereof as follows: -(9)Parliament shall enact legislation providing for the protection, rights and welfare of victims of offences.

3. In the case of Joseph Lendrix Waswa v Republic [2020] eKLR the Supreme Court recognized the need to protect victims in criminal trials and rendered itself as follows: -“63. The emerging picture therefore, is that the criminal justice processes should empower victims and that their voices should be heard –not only as witnesses for the prosecution but as rights holders with a valid interest in the proceedings and the outcome of the cause….70. …A victim can participate in a trial in person or via a legal representative. So then, who determines the manner and extent of a victim’s participation in a trial"71. Once a victim or his legal representative makes an application to participate in a trial, it is the duty of the trial Court to evaluate the matter before it, consider the victim’s views and concerns, their impact on the accused person’s right to a fair trial, and subsequently, in the judge’s discretion, determine the extent and manner in which a victim can participate in a trial. Since participatory rights are closely related to the rights of the accused and the right to a fair and expeditious trial, they should be granted in a judicious manner which does not cause undue delay in the proceedings and thus prejudice the rights of the accused.”

4. The Supreme Court at Paragraph 77 of its above cited case outlined the parameters of victims’ participation in criminal trials as follows: -a.The applicant must be a direct victim or such victim’s legal representative in the case being tried by the Court;b.The Court should examine each case according to its special nature to determine if participation is appropriate, at the stage participation is applied for;c.The trial Judge must be satisfied that granting the victim participatory rights shall not occasion an undue delay in the proceedings;d.The victim’s presentation should be strictly limited to “the views and concerns” of the victim in the matter granted participation;e.Victim participation must not be prejudicial to or inconsistent with the rights of the accused;f.The trial Judge may allow the victim or his legal representative to pose questions to a witness or expert who is giving evidence before the Court that have not been posed by the prosecutor;g.The Judge has control over the right to ask questions and should ensure that neither the victim nor the accused are not subjected to unsuitable treatment or questions that are irrelevant to the trial;h.The trial Court should ensure that the victim or the victim’s legal representative understands that prosecutorial duties remain solely with the DPP;i.While the victim’s views and concerns may be persuasive; and no doubt in the public interest that they are acknowledged, these views and concerns are not to be equated with the public interest;j.The Court may hold proceedings in camera where necessary to protect the privacy of the victim;k.While the Court has a duty to consider the victim’s views and concerns, the Court has no obligation to follow the victim’s preference of punishment.

5. Having regard to the above cited statutory and case law over the subject of victims’ participation. I find that it will serve the interest of justice to allow Counsel for the victims, who is already a participant in this trial, to respond to the objection raised by Counsel for the defence as the objection touches on the admissibility of evidence that the prosecution seeks to rely on in advancing their case. My take is that the admissibility or non-admissibility of the evidence is purely a legal issue. It is a matter in which the victims’ view and concerns may be presented.

6. I find that the participation of the victims’ Counsel on the issue of admissibility of evidence will neither delay nor prejudice the accused persons’ rights as Counsels submissions will not necessarily be binding on this court. In any event, Counsel for the defence will still be at liberty to respond to the submissions.

7. For the above reasons I exercise my discretion and allow Counsel for the victims to respond to the objection raised.

8. It is so ordered.

RULING DATED, SIGNED AND DELIVERED AT NYAMIRA VIA MICROSOFT TEAMS THIS 19TH DAY OF OCTOBER 2023. W. A. OKWANYJUDGE