[2022] KEHC 3307 (KLR)

Republic v Njeru; Jibril & another (Interested Party) (Criminal Revision E332 of 2021) [2022] KEHC 3307 (KLR) (Crim) (5 July 2022) (Ruling)

Neutral citation: [2022] KEHC 3307 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Revision E332 of 2021

JM Bwonwong'a, J

July 5, 2022

Between

Republic

Applicant

and

Francis Nyaga Njeru

Respondent

and

Ahmed Rashid Jibril

Interested Party

Farrah Ali

Interested Party

(Being application for revision of the ruling and/order of Hon. J. Kamau SRM, dated 12 July 2021 in Milimani Chief Magistrate’s Court in Criminal Private Prosecution Case No. E705 of 2021, Francis Nyaga Njeru v 1. Director of Public Prosecutions 2. Director of Criminal Investigations and 1 Ahmed Rashid Jibril 2. Farrah Ali)

Ruling

The case for the Republic/applicant 1. The Republic through its chief prosecutor (DPP-Ms Evelyne Onunga) applied under certificate of urgency for revision of the order of the lower court (Hon. J. Kamau SRM, dated 12 July 2021).

2. The application of the DPP seeks the following orders.1. Spent.2. An order be issued to the lower court to forward its record for revision.3. An order to set aside the order of the lower court that granted the respondent leave to institute a private prosecution against the interested parties, 1 Ahmed Rashid Jibril 2. Farrah Ali, on charges of conspiracy to defraud, making a false document, and forgery, all of them being offences under the Penal Code (Cap 63) Laws of Kenya.4. An order be issued to stay the proceedings in the private prosecution pending the hearing determination of the present application.

3. The application is supported by 19 grounds that are set out on the face of the notice of motion dated 26th July 2021; with the major grounds being the following.

4. The interested parties were charged with the offence of conspiracy to defraud contrary to section 317 of the Penal Code in Milimani Chief Magistrate’s court in Criminal Case No. 2144 of 2019.

5. Further investigations disclosed that the subject matter in Milimani Chief Magistrate’s court in Criminal Case No. 2144 of 2019, was also the subject matter in Milimani Chief Magistrate’s court in Criminal Case No. 1043 of 2016, in which the respondent (Francis Nyaga Njeru) is the accused.

6. Messrs Onyango Opiyo advocates for the respondent wrote a letter to the DPP and claimed that the respondent was granted leave on 15th April 2021 by the trial court (Hon. Aganyo, RM) to file a private prosecution against the interested parties.

7. Thereafter on 12th July 2021 the lower court (Hon. J. Kamau SRM), upon application by the respondent granted him leave to file a private prosecution vide notice of motion dated 26th July 2021 in Milimani Chief Magistrate’s Court in Criminal Private Prosecution Case No. E705 of 2021, Francis Nyaga Njeru v 1. Director of Public Prosecutions 2. Director of Criminal Investigations and 1 Ahmed Rashid Jibril 2. Farrah Ali, the latter two being cited as interested parties.

8. The trial magistrate (Hon. J. Kamau SRM) granted the respondent leave to file a private prosecution in the absence of the DPP and the Director of Criminal Investigations.

9. I decline to set out the averments in the affidavit of Ms Evelyne Onunga on behalf of the Republic/applicant because this is an application for revision.

The case for the Francis Nyaga Njeru/Respondent. 10. The respondent filed written submissions in opposition to the application for revision by the Republic. It was his submission that he was lawfully granted permission to file a private prosecution against the interested parties by the trial court (Hon. Aganyo, RM) on 15th April 2021 in Milimani Chief Magistrate’s court in Criminal Case No. 2144 of 2019.

11. He therefore argued that the lower court in Milimani Chief Magistrate’s Court in Criminal Private Prosecution Case No. E705 of 2021, Francis Nyaga Njeru v 1. Director of Public Prosecutions 2. Director of Criminal Investigations and 1 Ahmed Rashid Jibril 2. Farrah Ali, cannot be faulted for giving him permission to prosecute the interested parties, because the permission granted by trial court (Hon. Aganyo, RM) 15th April 2021 in Milimani Chief Magistrate’s court in Criminal Case No. 2144 of 2019, was not challenged by the respondents and the Republic.

12. He further submitted that:“One would argue or ask of what business does the DPP have in the Private Prosecution case given that they have adamantly indicated that they do not wish to prosecute the matter and even downed their tools.”

13. I decline to set out the averments in the affidavit of Francis Nyaga Njeru (the respondent herein), because this is an application for revision.

The submissions of the interested parties 14. They have submitted that the permission that was granted to the respondent was done in their absence. They have therefore supported the DPP that the said order be revised and be set aside.

15. They have further submitted that the law as set out in Kimani v Nathan Kahara [1983] eKLR, was not followed in that the permission to prosecute them was done in their absence. They have also submitted the same principles set out in Kimani v Nathan Kahara, were followed in Floriculture International Ltd & Others, High Court Misc. Civil Application No. 114 of 1997.

Issues for determination 15. I have perused the record of the proceedings of the lower court in Milimani Chief Magistrate’s Court in Criminal Private Prosecution Case No. E705 of 2021, Francis Nyaga Njeru v 1. Director of Public Prosecutions 2. Director of Criminal Investigations and 1 Ahmed Rashid Jibril 2. Farrah Ali, as requested for by the Republic /applicant.

16. As a result, I have found that the magistrate’s court (Hon. J. Kamau SRM) on the 12th July 2021 granted the complainant (Francis Nyaga Njeru) permission to prosecute the interested parties, in their absence. This was also done in the absence of the DPP and the Director of Criminal Investigations. In doing so the learned Senior Magistrate did not follow the law as set out in Kimani v Nathan Kahara,supra; which requires that permission to prosecute privately be granted in the presence of the accused persons and any other persons.

17. In the circumstances, I find that the order of that court was issued irregularly and is therefore set aside pursuant to this court’s powers of revision in section 362 as read with section 354 of the Criminal Procedure Code (Cap 75) Laws of Kenya.

18. The argument that the respondent (Francis Nyaga Njeru) had been granted permission to prosecute the interested parties by the other magistrate’s court (Hon. Aganyo, RM) on 15th April 2021 in Milimani Chief Magistrate’s court in Criminal Case No. 2144 of 2019 is invalid. It is invalid for the following reasons. First the issue of granting permission to the complainant was not an issue before that court. Second, the purported grant of permission to prosecute privately amounted to what the law calls an orbiter dictum, that is a by the way statement. Third, even the statement by that court giving the parties a right of appeal against her order was equally invalid. The reason being that a right of appeal is only granted by a statute and in the absence of such a statute an aggrieved party has no right of appeal. See Anarita Njeru Karimi v Republic (No.2) [1979] KLR 162. It is also for these reasons that I do hereby set aside the order of that court (Hon. Aganyo, RM) that was issued on 15th April 2021 in Milimani Chief Magistrate’s court in Criminal Case No. 2144 of 2019.

RULING SIGNED, DATED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 5TH DAY OF JULY 2022. J M BWONWONG’AJUDGEIn the presence of-Mr. Kinyua court assistant.Ms. Joy for the Republic/applicant.Ms. Owora holding brief for Ms. Opiyo for the respondentMs. Mumbi for the Interested parties.