[2020] KEHC 3652 (KLR)

REPUBLIC OF KENYA

IIN THE HIGH COURT OF KENYA

AT MOMBASA

CRIMINAL REVISION NO. 175 OF 2020

REPUBLIC......................................................................................PROSECUTOR

VERSUS

SALIM ABOUD ALI aliasSALIM ABOUD SULTRI SALIM

ABUDA KHALID aliasSURVIVOR.............................................RESPONDENT

RULING ON REVISION

1. On 17th July, 2020, the Office of the Director of Public Prosecutions (ODPP) filed an application by way of a letter dated 15th July, 2020 seeking revision of the order made by the lower court on 2nd January, 2020 denying the prosecution the right to rely on an inventory which had not been supplied to the defence during pre-trial stage. On27th July, 2020 when this matter came up fordirections, Mr. Muthomi, Prosecution Counsel, brought to thiscourt’s attention another application by way of a letter from the said office,dated 17thJuly, 2020 which wassupplemental to the application dated 15th July, 2020.

2. In the application dated 17th July, 2020, the ODPP sought an order for stay of the lower courtproceedings until the hearing and determination of theirapplication for revision, dated 15th July, 2020.

3. Mr.Aboubakar,Counsel for the respondentstrongly opposed the application forstay of the lower courtproceedings. He submitted that his client was at Shimo-la-Tewa Prison with bullet wounds and needed treatment whichwas not available in the said prison. Hepointedout that the respondent had not been able to secure a surety in his case and that was the reason whyhe was still in custody. It was stated that in the lower court case, PW1 was stood down after he tried to produce an inventory which had not been availed to the defencebefore the hearing of the prosecution case started.

4. The respondent's Counselstated that the lower court case was scheduled for hearing on 29thJuly, 2020 and PW1 was the only witness who would be referring the said inventory. It was submitted that thiscourtonly has powersto make an order for stay of proceedings after hearing the application for revision filed on 15th July, 2020.

5. In responding to the submissions made by the respondent's Counsel, Mr.Muthomistated that the defence Counselcould not dictate to the ODPPhow they should proceed with their case. He stated that they havea theoryof their case and a reason as to why they started off the lower court case with theparticular 1st witness who intended to produce the inventory, which was objected to. The Prosecution Counsel indicatedthat theyneeded to have proceedingsthat flow.

6. The Prosecution Counsel submitted that the respondent had the obligation toraise the bond required, which would enable him to go for treatment. It was stated that in their1st application tothis court, the ODPPhad made reference to a press statement made by the Inspector General of Police in regard to the respondent.

7. Mr. Muthomi further submitted that it was a misconception for the respondent'sCounsel to state that this court cannot issue orders for stay of proceedings, atan interim stage. He stated that no prejudice would be occasioned to the respondent if the said orders were issued.

8. Mr. Aboubakar responded by submitting that jurisdictionis conferred bythe Constitution and/orby statute and it would be unprocedural for this court to grant orders for stay of proceedings at an interim stage as Section 364 of the Criminal Procedure Code makes no provision for such an eventuality.He was of the view that the ODPP’s intention was tosneak in the inventory.

Determination

The issue for determination is if an interim order for stay proceedings of the lower court case should be granted.

9. Inthis matter the applicant’sCounselprayed for stay of the lower court proceedings due to the fact that when PW1 was adducing evidence in the lower court, hes ought to rely onan inventory and produce the same, but it turned out that it had not been supplied to the respondent's Counsel during the pretrial stage.

10. This court notes that the Criminal Procedure Code does not contain provisions for each and every scenario that is likely to arise during a criminal trial and what acourt is supposedto do when faced with certain predicaments. As such, Section 364 of the Criminal Procedure Code does not address the issue of stay of proceedings. It must however not be forgotten that each court has in herentpowers to deal with matters that come be foreit so that the ends of justice are not defeated.In such circumstances, a court is required to exercise it discretion judiciously and if such a matter has been addressed through judicial precedents, a court can fall back to the same, when making a decision on a matter before it.

11. This court’s findingonthe nature of the application made to stay proceedings of the lower court pending the hearing and determination of the revision application herein is nothing new, but has been dealt with, time without number, by both the High Court and the Court of Appeal.

12. In Republic v The Kenya Anti-CorruptionCommission & 2 Others Civil Application No. Nairobi 51 of 2008 (unreported ),the Court of Appeal (in thelead judgment of Tunoi JA) (as he thenwas) expresseditselfthusonthe issue of stayof criminal proceedings –

“It would appear logical to say that it seems that the courtcan [grant an order of stay] if petitioned on timeto stay the order and/or decree of the superiorcourt which in turn have the effect of staying the criminalproceedings inthe superior court.Further, as to whetheritcan do soor not dependson theparticular circumstances of each case and especially so, what exactly theapplicant is asking the court to do andhow the court is approached.”

13. Similarly, in Berkeley North Market &Others v AttorneyGeneral& others, Civil Application No. Nairobi 74 of 2005 (unreported ) the courtrendereditselfon the factorsto be consideredin an application for stay of criminalproceedings in the followingmanner:-

“At this stage, onan application for stay of criminalproceedings, it is not for this court to make a final determination, we onlyneed tobe satisfied that a solebonafide contention isnot unarguable or frivolous.”

14. Thiscourt has supervisory jurisdiction conferred on it under Article 165(6) and (7) of the Constitution of Kenya. The said Article provides as follows:-

“(6). The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function but not over a superior court.

(7) For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.”(emphasis added).

15. This court has considered the brief submissions made by each Counsel and the applicable law. Contrary to Mr. Aboubakar’s submissions thatthis court has no jurisdiction to grant the prosecution interim orders for stay of the lower court proceedings, it is my finding that although the provisions of Sections 362-364 of the Criminal Procedure Code do not expressly provide for the same, the said provisions do not prohibit the grant of orders for stay of proceedings in a matter that is pending hearing before the subordinate court. Article 165(6) of the Constitution confers jurisdiction to the High Court to make anyorder or give any direction it considers appropriate. It cannot therefore be said that appellate courts lack jurisdiction to grant interim orders. The two decisions referred to by this court indicate that in appropriate cases, courts have at an interim stages granted orders for stay of proceedings in criminal cases.

16. This court has considered Mr. Aboubakar’ssubmissionsthat the lower court case can still proceedon to hearing pending the determination of the application for revision as there are other witnesses available totestify,save for PW1 who is required to produce the inventory, which was objected to in the lower court. Since the lower court case is at its infancy,it isonly reasonable that this court determines the application for revision first before the lower court case can proceed for further hearing. This court does not have the benefitof witness statements and theinventory in issue so as to confirm that only PW1 will be making reference to it as stated by Counsel for the respondent.

17. This court is of the considered view that failure to grant the prayer for stay of the lower court proceedings may render the application dated 15th July, 2020 nugatory. Justice has been equated to a sword that cuts both ways, infavour of an accused person and the complainant. It is no different in this case.

18. My finding therefore is that it is reasonable andjust togrant an orderfor stay of the lower court proceedings inMombasa Chief Magistrate’s Court Criminal Case No. 1815 of 2019,Republic v SalimAboud Ali aliasSalimAboudSultriSalimAbuda Khalid alias Khalid aliasSurvivor.

19. Mr. Aboubakar pointed out that his clientis nursing gunshot wounds and needs treatment. Since this court has stayed the proceedings in the lower court, I hereby order that the applicant shall be escorted to Coast Province General Hospital for treatment after proper security has been put in place.The arrangements for his treatment and his return to prison must be in line with the applicable Ministry ofHealth Covid-19 guidelines.

It is soordered.

DELIVERED, DATED and SIGNED at MOMBASA on this 28thday of July, 2020. Ruling delivered through Microsoft Teams online platform due to the outbreak of covid-19 pandemic.

NJOKI MWANGI

JUDGE

In the presence of:-

Mr. Muthomi, Prosecution Counsel,for the DPP - applicant

Mr. Aboubakar for the respondent

Mr. Oliver Musundi- Court Assistant.