[2022] KEHC 16106 (KLR)

Republic v Nthiga (Criminal Revision E090 of 2022) [2022] KEHC 16106 (KLR) (7 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16106 (KLR)

Republic of Kenya

In the High Court at Embu

Criminal Revision E090 of 2022

LM Njuguna, J

December 7, 2022

Between

Republic

Prosecution

and

Joseph Kirimi Nthiga

Respondent

Ruling

1. The matter before this court is an application on revision dated 28. 07. 2022 and wherein the applicant seeks for orders that:i.Spent.ii.This court be pleased to call for the record in Criminal Case No. 113 of 2018, Republic v Joseph Kirimi Nthiga for purposes of satisfying itself on the correctness, legality and propriety of the orders of Hon. Nyakweba (S.P.M.) on 13. 07. 2022. iii.Any other order that this court may deem fit.

2. The application is premised on the grounds on its face and further supported by the affidavit sworn by Diana Irungu. The application herein is founded on the premise that the trial court did not judiciously exercise its discretion by declining to allow contrary to the law which allows the court to postpone or adjourn matters on such terms as it thinks fit for such a time as it considers reasonable. The applicant was thus aggrieved that the trial court forced it to close its case prematurely and therefore, it approached this court to exercise its revisionary powers to satisfy itself on the correctness, legality and propriety of the orders of Hon. Nyakweba (S.P.M.) on July 13, 2022.

3. The respondent vide a replying affidavit sworn on 14. 10,2022 deposed that it was not true that the trial magistrate failed to judiciously exercise his powers to allow the adjournment by the applicant. That in fact, the trial magistrate had been gracious enough in granting the prosecution adjournments even when clearly, the prosecution did not deserve; that the plea was taken on November 19, 2018, almost four years ago and the prosecution intended to call five witnesses but only brought four witnesses after so much back and forth. It was deposed that the prosecution was granted a last adjournment on February 13, 2020 when the police file was not availed in court and a similar adjournment was granted on March 15, 2021 when they brought PW2 and PW3 to testify and sought more time to call the remaining witnesses. The respondent swore that the court previously exercised its discretion wisely by giving the prosecution a second chance and despite that, and after a year, the applicant still sought for another last adjournment which the trial court rightly declined. That the record of the court bears witness that the case which is a simple assault case has dragged in court for a period of over four years because of laxity of the applicant. It was its case that the respondent’s right to fair hearing has indeed been breached and that court orders are not to be issued in vain. Further that the applicant did not close its case prematurely in that the prosecution refused to bring their witnesses to court despite persistent pleas by the court to do so. That this application is an abuse of the court process, in that, the accused has been waiting for justice for over a period of three years and that justice delayed is justice denied. It was thus prayed that this court dismisses the application herein.

4. The application was canvassed by way of written submissions. The applicant submitted that this case started on March 6, 2019 and by July 13, 2022, only the doctor and the investigating officer were left to testify after four witnesses had already testified. That the prosecution was prepared to proceed on March 6, 2019 but because the trial court was on transfer, the case did not take off. On July 1, 2019, one prosecution witness testified and on February 13, 2019, at the request of the prosecution, the case was adjourned and further, the trial court was not sitting on 30. 11. 2020; on 15. 03. 2021, the prosecution proceeded with two witnesses and on the subsequent date, the matter did not proceed at the instance of the prosecution but a reasonable explanation was granted. On September 29, 2021, the prosecution had witnesses but the defence counsel was indisposed. That on July 13, 2022, one witness testified and the prosecution asked for summons against the doctor and the said request was denied, thus the prosecution was compelled to close their case.

5. It was submitted that the application herein is based on among other laws, section 362 of the CPC which gives this court the power to request a subordinate court’s records and determine for itself the accuracy, validity and propriety of the findings of a lower court. Further that, section 364 (1) (b) permits this court to review a subordinate’s court’s order. It was its case that section 205 of the CPC provides guidance on adjournments before subordinate courts and that this section makes it clear that the court may decide to adjourn a case at its discretion but the discretion must be used fairly and justly based on reasonable grounds. The applicant placed reliance on the case of Republic v Paul Mutuku Magado [2019] eKLR.

6. The applicant submitted that it was not solely to blame for the adjournment in that, the court and the respondent equally shared the responsibility. That the complainant is equally entitled to a fair hearing of his case and reliance was placed on the case of Republic v Thomas Kipramoi [2018] eKLR. In the end, it was submitted that the Constitution vide Article 165 confers this court unfettered jurisdiction to hear all matters and thus this court has the jurisdiction to hear and set aside the orders of the trial court as the same have resulted to a miscarriage of justice. It was thus prayed that the application herein be allowed.

7. The court has considered the application, replying affidavit and the submissions by both parties and it forms the view that it has been called upon to determine whether the application has merits. The power of the High Court in revision is contained in Section 362 through to 366 of the Criminal Procedure Code (Cap 75). Section 362 specifically provides as follows;“362The 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”.

8. Section 364(5) provides as follows;“Unless an appeal lies from a finding, sentence or order, and no appeal is brought, no proceeding by way of revision shall be entertained at the insistence of the party who could have appealed”.

9. It is clear from the above provisions of the Criminal Procedure Code that the High Court has wide powers in its exercise of revision jurisdiction. However, there are some limiting factors to those powers.

10. The High Court can exercise and indeed exercises revisionary jurisdiction in “any criminal proceedings” in question. The statutory demarcation of this jurisdiction under Section 362 of the Criminal Procedure Code is limited to determining the correctness, regularity or legality of any orders issued by a subordinate court except for an order of acquittal.

11. However, it must be appreciated that revision is not a substitute for an appeal but is exercised to confirm the correctness or otherwise of orders issued by the sub-ordinate courts and proceed to issue directions on how the proceedings in questions shall proceed in line with Article 165(b) of the Constitution (Supra). Justice Odunga in Joseph Nduri Mbuvi v R in Criminal Revision 4 of 2019 stated:-“In my view, the revisionary jurisdiction of the High Court should only be invoked where there are glaring acts or omissions but should not be a substitute for an appeal. In other words, parties should not argue an appeal under the guise of a revision. It is for this reason that the decision whether or not to hear the parties or their advocates is discretionary save for where the orders intended to be made will prejudice the accused person. As was stated by the High Court of Malaysia in Public Prosecutor v Muhari bin Mohd Jani and Another [1996] 4 LRC 728 at 734, 735:““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”.”

12. It is the contention of the applicant that a travesty of justice has been visited upon him as he was denied an adjournment given that the trial court did not judiciously exercise its powers of adjournment under the law which allows the court to postpone or adjourn matters on such terms as it thinks fit for such a time as it considers reasonable. On the other hand, the respondent maintains that the applicant had been granted adjournments in the past with the preceding one being a last adjournment and hence the trial court did not err by rejecting the adjournment.

13. After perusing the reasons advanced for and against the application and being cognizant that Article 50 of the Constitution provides that everyone is entitled to the right to be heard and that the same constitution also provides for a fair hearing, I turn for guidance to the case of Hitila v Uganda [2969] 1 E.A. 219, the Court of Appeal of Uganda held that in exercising its power of revision the High Court could use its wide powers in any proceedings in which it appeared that an error material to the merits of the case or involving a miscarriage of justice had occurred. It was further held that the Court could do so in any proceedings where it appeared from any record that had been called for by the Court, or which had been reported for orders, or in any proceedings which had otherwise been brought to its notice.

14. This therefore means that revision is not a call to superintend the subordinate courts but to address an error material to the merits of the case as already observed above.

15. Was there an error material to the merits of the case herein? The Alaska Supreme Court in Re Curda, 49 P.3d 255, 261 held as follows:“All judges make legal errors. Sometimes this is because legal principles are unclear. Other times the principles are clear, but whether they apply to a particular situation may not be. Whether a judge has made a legal error is frequently a question on which disinterested, legally trained people can reasonably disagree. And whether legal error has been committed is always a question that is determined after the fact, free from the exigencies present when the particular decision in question was made. Further, Judges must be able to rule in accordance with the law which they believe applies to the case before them, free from extraneous considerations of punishment or reward. (Emphasis added). This is the central value of judicial independence. That value is threatened when a judge confronted with a choice of how to rule-and judges are confronted with scores of such choices every day-must ask not “which is the best choice under the law as I understand it,” but “which is the choice least likely to result in judicial discipline?”

16. The trial magistrate has been faulted for having failed to judiciously exercise his powers of adjournment under the law which allows the court to postpone or adjourn matters on such terms as it thinks fit for such a time as it considers reasonable. That by the time the application herein was being filed, the applicant submits that it still had two witnesses to testify and as a result, has sought before this court that the decision by the trial court be set aside and it be allowed to present the two remaining witnesses.

17. The question that arises is whether it will be in the interest of justice, given the circumstances of this case to allow the applicant an opportunity to reopen its case and present the two witnesses. It is not lost to this court that the case herein was first brought before the trial court on November 19, 2018 and from the record, the applicant had indicated that it would call four witnesses to support its case. From the record of adjournments, it is outright that the prosecution bore the biggest blame even if it has defended itself and has attributed the delay to all the parties herein.

18. The Supreme Court of Uganda considered circumstances under which an adjournment would be granted. [SeeFamous Cycle Agencies Ltd & 4 Others v Masukhalal Ramji Karia SCCA No. 16 of 1994 [1995] IV KALR 100]. Also see Odunga J (as he then was ) in the case of Mbithuka Titus v Jackline Mutindi [2020] eKLR where he held the view that:While the Appellant contends that there is a usual practice that a first application for adjournment ought to be granted, I am not aware of such practice and if there is such a practice it is not grounded in law. Any application for adjournment whether the first or the tenth must be grounded in law.

19. In the case herein, the appellants cry foul that the trial court erred by failing to judiciously exercise its powers of adjournment but that notwithstanding, its important to note that the applicant previously had been granted two last adjournments and on the day when the matter was supposed to be heard, one witness testified and thereafter, it stated that it required summons to issue to the remaining two witnesses. In the circumstances, could the trial magistrate be faulted for having exercised his powers injudiciously as alleged, in compelling the applicant to close its case?

20. Judicial independence is not a privilege of the individual judicial officer. It is the responsibility imposed on each officer to enable him or her to adjudicate a dispute honestly and impartially on basis of the law and the evidence, without external pressure or influence and without fear of interference from anyone. [SeeR vs Beauregard, SC of Canada, (1987) LCR (Constn) 180 at 188].

21. Because the judiciary is designed to be independent, judicial officers must have discretion in order for the legal system to function properly. Discretion refers to the power or right given to an individual to make decisions or act according to his/her own judgement in the given circumstances unfolding before him/her. Judicial discretion is therefore the power of a judicial officer to make legal decisions based on his or her opinion but within general legal guidelines.

22. In the instant case, the trial magistrate stated his reason for declining a further adjournment after the last two adjournments had been allowed a year apart. It is my humble view that a judicial officer must be given the latitude within which to exercise his/her judicial duties especially where no evidence of bias has been availed by a party.

23. In view of the foregoing, it is my finding that;i.The applicant’s application for revision lacks merit and the same is hereby dismissed.ii.The file be remitted back to the trial court for further hearing and determination.

24. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 7TH DAY OF DECEMBER, 2022. L. NJUGUNAJUDGE…………………………………………..for the Applicant……………………………..…………for the Respondent