[2020] KEHC 1001 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CRIMINAL DIVISION

CRIMINAL REVISION NO. 175 OF 2020

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

VERSUS

SALIM ABOUD ALI alias SALIM ABOUD SULTRI

SALIM ABUDA KHALID alias SURVIVOR.........................................RESPONDENT

R U L I N G

1. PW 1 was stood down when the defence objected to production of inventory which was allegedly made upon arrest of the Respondent an allegations that it had been made up otherwise it should have been supplied together with copies of statements.

2. Mr. Abubakar to the Respondent argued that on 26/11/2019 some documents were supplied and that on 5/12/2019 it was indicated that the prosecution would not be supplying any further documents. When supplying statements of witnesses and documentary exhibits on 26/11/2019 prosecuting counsel indicated that they had not complied fully with pre-trial required another mention date to supply more statements.

3. On 5/12/2019 the same prosecuting counsel who had asked for a mention date informed the court that the prosecution shall not be supplying documents and that the hearing date of 19/12/2019 be maintained. It appears that no proceedings took place on 19/12/2019. On 23/12/2019 due to ill health of Ms. Maina another date was taken for 2/1/2020.

4. On 2/1/2020, PW 1 took witness stand but was stood down when the defence counsel objected to productions of inventory and the court upheld the objection by the defence counsel.

5. Aggrieved by the order of the court the office of Director of Public Prosecution filed the application for revision seeking that order of the court denying them an opportunity to supply any further documents be revised.

6. The application was canvassed by way of written submissions which were highlighted by counsel by counsel in open court. Ms. Mwangeka argued that the trial court in making the order barring prosecution from supplying any further documents was improper and a misapprehension of the right to fair trial as per Article 50(2)(j) which requires the accused to be informed in advance of the evidence the prosecution intends to rely on.

7. Ms. Mwangeka argued that the trial Magistrate issued a blanket order which stripped them of right to supply evidence and conduct proper trial. It was submitted that the Respondent will be at liberty to request for time to prepare himself once new evidence is done.

8. Mr. Abubakar Advocate to the Respondent on the other hand argued that the application was incompetent as it touches on the discretion of the trial court. It was argued that authorities relied upon by the Applicant/state were distinguishable and not relevant on the present case as there was no illegality or impropriety proved. Respondents counsel argued further that appellants are estopped from seeking to raise an order made in exercise of the Magistrates discretion since they gave impression that there were no more documents to supply and thus a hearing date was taken.

9. It was the Respondents argument that an inventory is a document made during investigations and was therefore not new evidence discovered on the course of trial and they suspected it was manufactured and will be highly prejudicial to the Respondent. It was argued that application does not meet the requirements of Section 362 to 364 of the Criminal Procedure Code.

10. In reply Ms. Mwangeka argued that revision was not seeking to interfere with the discretion of the trial court but seeks to correct impropriety by trial court which barred the prosecution from adducing evidence. Ms. Mwangeka brought it to the attention of the court that different prosecution counsel handled the matter and that may be reason of oversight.

11. The court has perused the trial courts record and it shows that Maina was for state on 26/11/2019 when Charge Sheet, Government Analyst Report, Copy of Exhibit Memo Form and Copy of Statements of witnesses were supplied to defence. Ms Maina asked the court for a further mention to supply further statements which she indicated as phone conversation which extracts were to be made.

12. On 5th December, 2019 Ms. Maina was still the prosecuting counsel and she informed the court there was no more evidence to be supplied. She urged the court to maintain the hearing date of 19/12/2019. On 19/12/2019, Ms. Maina was unwell and hearing did not proceed as Ms. Ochola who held brief was not conversant with the matter. Matter was mentioned on 23/12/2019 when the Mr. Mutua held Ms. Maina’s brief and said she was still indisposed. On 2/1/2020, Mr. Masila for state was the prosecuting counsel and he put PW 1 on witness stand.

13. The order made by the trial Magistrate was based on the facts in the trial courts record and therefore in exercise of the trial Magistrates discretion. The applicant has not shown this court what was incorrect about that order considering that the prosecution confirmed they were ready for the trial and confirmed the hearing date only to unleash an inventory which from the record had not been supplied to defence as required under Article 50(2) (c) and (j) of the constitution.

14. What Ms. Maina said was yet to be supplied were extracts of Mobile phone which later turned out to be unavailable and she confirmed the hearing date of 19/12/2019. Claiming that several prosecuting counsel handled pre-trial and that may have led to oversight is a confession of incompetence on the part of ODPP.

15. It is not expected that any prosecuting counsel would proceed to put a witness in the witness box without having checklist of documents supplied to defence and having a pre-trial with the witness prior to any hearing.

16. The prosecution has not shown how the trial court committed impropriety on issuance of the order. How did the trial Magistrate fail to observe standards of honestly or modesty by making an order based on facts derived from the records made during the proceedings that the prosecution participated in?

17. It is my consideration that the order made by the trial court herein could only be challenged by way of an appeal and not revision. Revision is reserved for error apparent on the face of records; an illegal order erg where a minor is locked up in fail contrary to the Children Act.

18. The application herein lacks merit and is dismissed. The trial court file should be returned for trial in Criminal Case No. 1815 of 2019 to continue.

Dated, signed and delivered online by MS TEAMS, this 10th day of December 2020

HON. LADY JUSTICE A. ONG’INJO

JUDGE