[2023] KEHC 23855 (KLR)

Republic v Namwenya & another (Criminal Revision E081 of 2023) [2023] KEHC 23855 (KLR) (18 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23855 (KLR)

Republic of Kenya

In the High Court at Embu

Criminal Revision E081 of 2023

LM Njuguna, J

October 18, 2023

Between

Republic

Applicant

and

Victor Jairus Namwenya

1st Respondent

Charles Waweru Kimathi

2nd Respondent

Ruling

1. The applicant has filed revision dated 24th July 2023 under certificate of urgency, being aggrieved and dissatisfied by the order of Hon. Ambasi Embu Chief Magistrate’s Court Anti-Corruption Criminal Case No. E001 of 2021. The applicant now seeks stay of proceedings for purposes of satisfying itself on the correctness, legality and propriety of the findings and orders as well as the regularity of the proceedings giving rise thereto. The applicant also seeks that the court revises and sets aside the order of 18th May 2023.

2. The supporting affidavit to the application stated that the respondents were charged with the offence of receiving a bribe contrary to Section 6(1)(b) of the Bribery Act 2016 as read with Section 18(1) thereof. That during the hearing, the applicant had lined up its witnesses and they testified, save for PW8 who was an officer from the Ethics and Anti-corruption Commission and who was stood down by the trial magistrate. That counsel for the 2nd respondent objected to the testimony of PW8 on the basis that he was not qualified and was not gazetted as an expert in transcription logistics. That the applicant stated that PW8 was a public officer properly trained and who carries out the work of transcribing and transliterating at the Ethics and Anti-Corruption Commission, and he was intended to testify on the voices in the audio recording between PW1 and the 1st respondent. It was the applicant’s case that PW8 was dismissed without being allowed a chance to be cross-examined on his veracity. That the delay in filing the revision was occasioned by a delay in acquiring typed proceedings.

3. In response, the 1st respondent stated that the application is totally devoid of merit and should not be entertained by the court. That PW8 was incompetent to testify before the court as an expert witness but may be treated as a “lay” witness as he does not hold the relevant qualifications to testify as a transcriber, neither is he gazetted as one. That the applicant disadvantaged itself by presenting PW8 as an expert witness yet they had a host of experts to choose from if they wanted to do so. That the applicant was made aware of its right of appeal and should have explored that instead of a revision. The 2nd respondent also stated his response in similar terms and added that PW8 did not qualify to give expert testimony under Section 48 of the Evidence Act, even if it is alleged that he worked as a transcriber.

4. The revision was certified as urgent and a temporary order was issued staying the proceedings in Chief Magistrate’s Anti-Corruption Criminal Case No. E001 of 2021 pending hearing and determination of the revision. However, the court later vacated those orders stating that the applicant had withheld information from the court when the application was considered exparte.

5. The revision herein was canvassed by way of written submissions and both parties complied.

6. The applicant, in its submissions, reminded the court of its powers to revise the ruling of the trial court as provided under section 362 of the Criminal Procedure Code and the cases of R. Vs. Jagani & Another (2001) KLR 590 and Samuel Njuguna Githinji Vs. R (1992) eKLR. They stated that PW8 was not introduced as an expert witness but rather as an officer working at EACC for the past 6 years as an operations assistant and that he was not expected to give expert testimony without the relevant experience in the field. They relied on the definition of “expert witness” according to the Black’s Law Dictionary, 6thEdition. That PW8 was still introducing himself when counsel for the respondents objected prematurely to the witness. That the respondent’s counsel would have had a chance to cross examine the witness once he had testified. That the dismissal of the witness is prejudicial to the prosecution’s case and should be revised. Reliance was further placed on the case of Pamela Zipporah Moriasi Vs. Republic (2021) eKLR.

7. The respondents submitted that they raised an objection when PW8 sought to produce a transcript of a voice recording as an exhibit in the case. That the response by the prosecution was that the witness, by virtue of the fact that he was working as an officer at EACC, was a qualified witness. That the witness admitted that he did not have the required experience and expertise to produce the evidence. That the testimony would and should be rendered inadmissible in any event as the person producing it is not qualified to do so. They referred to Section 48 of the Evidence Act which provides for opinions of experts and that the experts must be qualified in the field and be able to instruct the court on the science or art relevant to the case. They relied on the Court of Appeal decision in the case of Mutonyi Vs. Republic (1982) KLR 203 as 210.

8. In my view, the issue for determination is whether the trial court’s ruling dated 18th May 2023 is correct. In order to do so, this court reminds itself of its powers under Section 362 of the Criminal Procedure Code as follows:“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.”

9. In the Malaysian case of Public Prosecutor Vs. Muhari bin Mohd Jani and Another [1996] 4 LRC 728 at 734, 735 it was held:“The powers of the High Court in revision are amply provided under Section 325 of the Criminal Procedure Code subject only to subsections (ii) and (iii) thereof. The object of revisionary powers of the High Court is to confer upon the High Court a kind of “paternal or supervisory jurisdiction” in order to correct or prevent a miscarriage of justice. In a revision the main question to be considered is whether substantial justice has been done or will be done and whether any order made by the lower court should be interfered with in the interest of justice…If we have been entrusted with the responsibility of a wide discretion, we should be the last to attempt to fetter that discretion…This discretion, like all other judicial discretions ought, as far as practicable, to be left untrammeled and free, so as to be fairly exercised according to the exigencies of each case”.

10. The kind of supervisory jurisdiction to be applied in this instance is limited to the lower court’s findings, sentences, orders and regularity of any proceedings. I shall explain. In interrogating the findings of the court according to the ruling in question, upon perusal of the lower court file, the trial magistrate recorded the arguments from both sides and found that PW8 was not qualified to testify as an expert in transcription. The court noted that PW8 cannot be allowed to testify or produce any evidence with respect to transcription because he was only an operation assistant at the EACC.

11. Section 48 of the Evidence Act provides:48. Opinions of experts.(1)When the court has to form an opinion upon a point of foreign law, or of science or art, or as to identity or genuineness of handwriting or finger or other impressions, opinions upon that point are admissible if made by persons specially skilled in such foreign law, science or art, or in questions as to identity, or genuineness of handwriting or fingerprint or other impressions.(2)Such persons are called experts.

12. If PW8 had been allowed to testify, he would have produced a report which is in the category of testimony that can only be produced by an expert. That is to say, only an expert in the field of transcribing and distinguishing voices within an audio voice recording. In my view, this is a specialized field and cannot be done by anyone on mere lay-man’s prowess. The respondents rightly submitted that the person’s qualifications coupled with knowledge in a certain field is what empowers him to testify as an expert. For instance, if a medical practitioner were to testify in a murder trial, the court first of all notes the academic and professional qualifications before allowing the witness to testify and produce documents.

13. PW8 is indeed learned but not qualified to testify and produce documents relating to transcribing as the same should be done by an expert in the field. On the applicant’s argument that the witness was not introduced as an expert witness, usually, the court does not accredit a witness as an expert witness as a title but rather by the contents of the specialized evidence produced. The 9thEdition Black’s Law Dictionary defines “expert witness” as:A witness qualified by knowledge, skill, experience, training, or education to provide a scientific, technical, or other specialized opinion about the evidence or a fact issue.

14. In the premises, I find no basis to revise the ruling of the trial court. Therefore, the application lacks merit and is hereby dismissed.

15. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 18TH DAY OF OCTOBER, 2023. L. NJUGUNAJUDGE