[2015] KEHC 1332 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT EMBU

CRIMINAL REVISION NO. 13 OF 2015

REPUBLIC……………………………………………………APPLICANT

VERSUS

MOSES MWANIKI KINYUA & 5 OTHERS...............RESPONDENTS

R U L I N G

This is an application for revision against the orders of Hon. A.G. Kibiru in his ruling delivered on 9/4/2015 Cr. Case No. 1772 of 2010 brought by the Director of Public Prosecution. It seeks for orders to quash the order of the magistrate and to re-open the prosecution case. The application was disposed of by the court relying on the application and the replying affidavits. Ms. Matere represented the applicant while Mr. Joe Kathungu represented the respondent.

The facts leading to this application are that on the 9/4/2015, the case went before the trial magistrate for hearing in the morning hours. During the call-over the case was mentioned and given time allocation 11. 30 a.m.

The prosecutor on duty on the material day was SP. E. Imbwaga and was not present during the morning call-over. However, he was informed that the case had been given time allocation to be herd at 11. 30 a.m. by the prosecutor who was holding his brief. At the material time, SP. Imbwaga was handling cases for re-allocation in Court No. 5. At 11. 30 a.m. SP Imbwaga did not attend court for hearing as scheduled. The court adjourned the matter to 2. 30 p.m. The case was called out again at 3. 00 p.m. and still the prosecutor was absent. The court therefore ordered the prosecution case closed for want of prosecution.

The applicant argues that the prosecutor SP Imbwaga was still busy in court No. 5 and was unable to break to attend the trial court and explain his predicament. It was stated that efforts to get a colleague to hold his brief were futile. The applicant further argued that the trial magistrate who was aware of the predicament of the prosecution, ought to have been more cautious by adjourning the case to another day instead of ordering it closed.

The applicant argues that the magistrate ought to have satisfied himself that there were no witnesses by asking the court clerk whether there was anybody who had attended court for that case or better still, send the court clerk to find out whether Court No. 5 was still in session. It is further argued that the witness who had attended court on the material day was a crucial witness and if the case is not re-opened the prosecution will be highly prejudiced.

Mr. Kathungu opposed the application arguing that it was not supported by an affidavit and that he was aware that contrary to the submissions of the applicant, SP Imbwaga was not sitting in Court No. 5 on the material day. He relied on his own affidavit and argued that during the call-over IP. Wanyoike was holding brief for the court prosecutor SP. Imbwaga who was said to be mentioning some matters in Court No. 5. The court was told that SP. Imbwaga will be available to proceed with the hearing at 11. 30 a.m.

Mr. Kathungu in his affidavit said that on the material day Court No.5 was hearing civil cases. After the criminal case was adjourned by the trial court in the morning, he proceeded to Court No.5 where he had a Divorce Cause No. 22 of 2014 which was for hearing on that day. The court was dealing with civil cases on that day and what SP. Imbwaga was handling in that court were pleas and mentions. He left Mr. Kathungu in that court and went away at 10. 30 a.m. The divorce case was fully heard and the counsel returned to the trial court at 11. 30 a.m. He depones that SP. Imbwaga was not in court No.5 after 10. 30 a.m. on the material day.

Mr. Kathungu said he returned to Mr. Kibiru's court and found that due to the absence of the prosecutor, the case had been adjourned to 2. 30 p.m. At around 3. 00 p.m. the case was called out again but the prosecutor was still absent. There was no one to hold brief for the prosecutor in court or to explain where he was. As such his whereabouts remained unknown for the whole day. Being an old case of over 5 years where the respondent has faithfully attended court, the trial court had no alternative but to have it closed. He urged the court to dismiss the application.

I have perused this application and noted that the applicant has provided very scanty information to this court. The typed proceeding annexed to this application was only for the 9/4/2015 when the orders complained of were made. This court would have needed more information relating to the case in order to prepare a fair and just ruling. This information may include the proceedings of the case showing how many times the case had come for hearing and what had transpired. This information would have been helpful to this court in determining whether the trial magistrate was justified in ordering the closing of the prosecution's case at that stage. In an application of this nature, the court is bound to consider prior circumstances that may have led the magistrate to make the orders sought to be quashed in this application.

In the prevailing circumstances, the court found it fit to call for the lower court record for examination before writing the ruling. I perused the court record and the status of the court file Cr. Case No. 1772 of 2010 maybe briefly stated. The plea was taken on 9/9/2010. The 6 accused persons face six counts of Stealing by Servant contrary to Section 281 of the Penal Code. After the plea the case did not take off for 2 years until the 1/8/2012 when 3 witnesses were heard. Thereafter it was adjourned several times until 9/5/2015 when it was ordered closed by the magistrate. This is indeed an old case which has dragged for more than 5 years and to which the prosecution has not shown commitment in its disposal I suppose that the prosecution did not want to disclose this very important shortcoming on their part to the court for reasons well known to them.

The application was not supported by an affidavit which makes it difficult to verify the truth of the information provided therein. It is important that an application of this nature be supported by an affidavit sworn by a person who is well versed with the facts of case. The question then arises as to why the state counsel, or SP. Imbwaga did not put an affidavit to support this application. In the absence of such an affidavit the court is placed at a disadvantage of determining the truth of the allegations contained in the application.

The replying affidavit by the counsel for the respondent stated that Court No.5 was dealing with civil matters on the material day and he attended a full hearing in Divorce Cause No. 22 of 2014 as he waited for the trial court to resume for the hearing of Criminal Case No. 1772 of 2010. He saw the prosecutor SP Imbwaga leave the court around 10. 30 a.m. It is therefore unlikely that SP. Imbwaga was in Court No. 5 for the whole day as alleged. SP. Imbwaga prosecutes criminal cases on behalf of the Director of Public Prosecution and had concluded his mission in Court No. 5 by 10. 30 a.m. after the court took pleas and mentioned the criminal cases. The court believed the averments of the affidavit of Mr. Kathungu that SP. Imbwaga had left Court 5 at the time the divorce case was being heard. The argument that the prosecutor was in court No. 5 the whole day cannot be true.

The applicant argued that the trial magistrate ought to have exercised caution before dismissing the case. It is my considered opinion that adjourning the case 2 times and waiting for the prosecutor the whole day demonstrates a lot of patience on the part of the trial magistrate. It was not the duty of the trial magistrate to send his court clerk to court No. 5 to look for the prosecutor as the applicant claims. Neither was it his duty to find out whether there were witnesses waiting in court. Even assuming that any witness was waiting in court, the case could not have proceeded without the prosecutor.

This application is brought under Section 362 of the Criminal Procedure Code which is designed to correct any irregularity, illegality or impropriety of any order made by the trial court. I find that the trial magistrate did not commit any irregularity, illegality or any impropriety in this matter for this court to address under Section 362.

The orders made were reasonable in the circumstances with the magistrate having accommodated the prosecution in a trial that has dragged for 5 years.

I find no merit in this application and I dismiss it accordingly.

It is hereby so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 1ST DAY OF OCTOBER, 2015.

F. MUCHEMI

JUDGE

In the presence of:-

Mr. Kathungu for the Respondents

Mms. Nandwa for the State/Applicant