[2018] KEHC 3793 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

JUDICIAL REVIEW NO. 31 OF 2012

IN THE MATTER OF AN APPLICATION BY S M & M W M FOR LEAVE TO APPLY FOR AN ORDER OF PROHIBITION

AND

IN THE MATTER OF NYAHURURU PRINCIPAL MAGISTRATE’S COURT CRIMINAL CASE NO. 598 OF 2011 – REPUBLIC VS S M

IN THE MATTER OF NYAHURURU PRINCIPAL MAGISTRATE’S COURT P & C 41 OF 2011

REPUBLIC.............................................................................................APPLICANT

VERSUS

NYAHURURU SNR PRINCIPAL MAGISTRATE COURT.........RESPONDENT

H N..........................................................................................INTERESTED PARTY

S M...................................................................EX-PARTE APPLICANT/SUBJECT

JUDGMENT

1. The Application herein relates to a matter involving the care and protection of children. The Applicant separated from his wife. He apparently sold all or most of his property, and moved away to Mombasa leaving the wife and his four children to fend for themselves in Nyahururu.

2. The Children’s Department in Nyahururu became seized of the matter and apparently brought two separate cases: Nyahururu PMC P&C No. 41 of 2011 and Nyahururu PMC Crim. Case No. 598 of 2011. There is no question both cases relate to the same set of circumstances: the allegations that the Applicant neglected his minor children and refused to provide for them. The charge in Nyahururu PMC Crim. Case No. 598 of 2011 is “willfully causing a child to be in need of care and protection contrary to section 127(1) as read with section 127(1)(b) of the Children’s Act, No. 8 of 2001. ”

3. I am uncertain to the exact nature of Nyahururu PMC P&C No. 41 of 2011 but its title would indicate that it is not, in theory, supposed to be a criminal case but a Child Protection and Care file. In any event, it would appear from a decision by Justice Anyarra Emukule dated 10/06/2011, that the case took a criminal turn. The criminal turn was strong enough for the Learned Judge to conclude that the Applicant was being subjected to double jeopardy in violation of his constitutional rights. This led the Learned Judge to issue the following order in Nakuru High Court Revision No. 41 of 2011:

The Prosecution must clearly choose to prosecute the Applicant under Nyahururu PMC P&C No. 41 of 2011 and Nyahururu PMC Crim. Case No. 598 of 2011. To do otherwise would clearly put the Applicant into double jeopardy, and he would be shuttling between the two Courts maintaining the same defence. It would be grossly unfair to him, and cause further estrangement between the Applicant, his wife and the affected children.

I therefore declare as invalid the simultaneous trial of the Applicant in Nyahururu PMC P&C No. 41 of 2011 and Nyahururu PMC Crim. Case No. 598 of 2011, as this would indeed violate and infringe upon the Applicant’s dignity, fundamental rights and freedoms enshrined in the Bill of Rights under Articles 28 and 29 of the Constitution.

Whichever course the Prosecution elects, I direct the trial Court to observe the provisions of Section 90 of the Children’s Act 2001 regarding parental responsibility.

4. The Applicant now complains that the Nyahururu Magistrate’s Court and the Prosecution have ignored the direction by the Learned Judge. He says that the two have persisted in prosecuting both cases despite the clear directions by the Learned Judge. He therefore seeks the following orders:

1. That an order of Prohibition be issued, prohibiting Nyahururu Senior Principal Magistrate’s Court from taking further proceedings and executing any orders, decrees, warrants or any other kind of execution in Nyahururu PM Criminal Case No. 598 of 2011 and Nyahururu PM P & C No. 41 of 2011

2. That an order or certiorari be issued to remove to this court for purposes of quashing the proceedings, orders, decrees, warrants or any other proceedings in Nyahururu PM Criminal Case No. 598 of 2011 and Nyahururu PM P & C No. 41 of 2011 that took place and/or were granted and issued after the 10th June, 2011.

3. Any other consequential orders and directions that the Honourable Court may deem fit to grant.

4. That the costs of the application for leave and the substantive motion be borne by the Interested Party.

5. The response by the State, through the Office of the Director of Public Prosecutions, is simple: that the State has elected to pursue Nyahururu PMC Crim. Case No. 598 of 2011 and that to stay or quash proceedings in that criminal trial is unwarranted and would amount to interfering with the constitutional mandate of the DPP to prosecute crimes detected and investigated.

6. On my part, I see little controversy. The direction by the Learned Judge in the Criminal Revision is clear: the State can choose to proceed with only one of the two cases. The other one must be permanently stayed. The Learned Judge was quite clear that whichever course is taken, the provisions of Section 90 on parental responsibility must be observed. That direction was never appealed against or varied by the Court. The State says that it has elected to pursue Nyahururu PMC Crim. Case No. 598 of 2011. So be it. In that case Nyahururu PMC P&C No. 41 of 2011 must be permanently stayed as per the directions by Judge Emukule. It is hereby so stayed. The Learned Judge was persuaded that any orders on parental responsibility under Section 90 of the Children’s Act can be made in either case. Therefore, if there are any existing orders made under Section 90 of the Children’s Act in Nyahururu PMC P&C No. 41 of 2011, those orders shall simply be transferred to Nyahururu PMC Crim. Case No. 598 of 2011 and enforced there.

7. The upshot, then, is the following:

a. An order of prohibition shall issue prohibiting the Respondent from taking any further proceedings and executing any orders, decrees, warrants or any other kind of execution in Nyahururu PMC P&C No. 41 of 2011.

b. The Respondents shall be at liberty to prosecute, with due expedition, Nyahururu PMC Crim. Case No. 598 of 2011.

c. There will be no order as to costs.

8. Orders accordingly. Delivered at Nakuru this 4th day of October, 2018

............................

JOEL NGUGI

JUDGE