[2022] KEHC 195 (KLR)

Republic v Sammy (Criminal Case 36 of 2019) [2022] KEHC 195 (KLR) (15 March 2022) (Ruling)

Neutral citation: [2022] KEHC 195 (KLR)

Republic of Kenya

In the High Court at Machakos

Criminal Case 36 of 2019

MW Muigai, J

March 15, 2022

Between

Republic

Prosecution

and

Anthony Kilonzo Sammy

Accused

Ruling

1. On 8th March, 2022, the Victims Counsel, Ms. Odembo sought permission to ask questions to the Prosecution witness (PW1) which application was objected to by the Accused Counsel.

2. This court directed based on the Supreme Court decision ofJoseph Lendrix Waswa vs. Republic [2020] eKLR on the role of the victim’s lawyer and the Prosecutor, that the Prosecutor shall re-examine the witness and if any relevant issues are left out, the victim’s counsel would raise them after gave the Victim’s advocate an opportunity to ask the questions he wanted to ask. The Victim’s Counsel proceeded to ask what he termed as concerns and views of the victim.

3. According to the Accused person’s counsel, in view of the fact that the Prosecution cross-examined the witness and after re-examination the Victim’s counsel cross-examined the witness, the Accused person counsel sought to be given an opportunity to put further questions to the witness.

4. The DPP contends that the role of the victim’s advocate is limited to views, concerns and rights. He opposed questions to PW1 as the matter would take longer to conclude. On the other hand, the Accused person’s advocate is of the view that the right so the accused person would be taken into consideration and that he has a right to cross examine all parties presented by the Prosecution and the watching brief counsel.

ANALYSIS AND DETERMINATION 5. Section 9 of the Victim Protection Act, 2014 provides for the rights of a victim during the trial process as;(1)A victim has a right to —(a)be present at their trial either in person or through a representative of their choice;(b)have the trial begin and conclude without unreasonable delay;(c)give their views in any plea bargaining;(d)have any dispute that can be resolved by the application of law decided in a fair hearing before a competent authority or, where appropriate, another independent and impartial tribunal or body established by law;(e)be informed in advance of the evidence the prosecution and defence intends to rely on, and to have reasonable access to that evidence;(f)have the assistance of an interpreter provided by the State where the victim cannot understand the language used at the trial; and(g)be informed of the charge which the offender is facing in sufficient details.(2)Where the personal interests of a victim have been affected, the Court shall—(a)permit the victim's views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court; and(b)ensure that the victim's views and concerns are presented in a manner which is not—(i)prejudicial to the rights of the accused; or(ii)inconsistent with a fair and impartial trial. [Emphasis mine](3)The victim's views and concerns referred to in subsection (2) may be presented by the legal representative acting on their behalf.

6. Section 13 of the Victim Protection Act, 2014 provides that;Where a victim is a complainant in a criminal case, the victim shall, either in person or through an advocate be entitled to—(a)subject to the provisions of the Evidence Act (Cap. 80), adduce evidence that has been left out;(b)give oral evidence or written submission [Emphasis mine]

7. A victim is defined in Section 2 of the Victims Protection Act,2014 as any natural person who suffers injury, loss or damage as a consequence of an offence;

8. Still on victims, Section 4(2)(b) of the Witness protection Act provides that;-“Every victim is as far as possible given an opportunity to be heard and to respond before any decisions affecting him or her is taken.”

9. Taking into consideration the provisions of the law, it is not in dispute that the Victim through himself or his counsel has a place in the criminal trial, the question of who a victim was also discussed in the the Court of Appeal in the case of I P Veronica Gitahi & another v Republic [2016] eKLR, where the court observed that:“By section 2 (VPA) a victim is defined to include any natural person who suffers injury, loss or damage as a consequence of an offence, a definition wide enough to include the deceased’s mother and uncle who are represented by Mr. Ndubi in this appeal…it would be unconscionable of us to deny him audience in this court when he was allowed, on specific terms to participate in the trial court.”

10. This court in Republic vs. Joseph Lentrix Waswa [2016] eKLR dealt with the question of whether a counsel watching brief for the family of a deceased in a criminal matter can actively participate in the trial on behalf of a victim? And if so to what extent? Lady Justice Ali Aroni stated that:-“29. From the Cited Articles of the Constitution 2010, provisions of the Victim Protection Act 2014 and cases cited from within and outside, the law has shifted the traditional parameters of a victim in a criminal case and therefore the arguments advanced by the defence are certainly out of place and would if adopted by court be contrary to the provision of the Constitution and the Victim Protection Act, and by all means against progressive jurisprudence. The victims counsel can no longer be considered a passive observer.30. However the participation cannot be active and parallel to that of the prosecutor as advanced in the Indian case of Sathyavani and as advocated by counsel for the family herein The above Indian case in that regard is distinguishable as the Victim Protection Act 2014 gives the parameters of involvement during trial to include; the victim’s views and concerns at various stages of the trial as the court may determine either directly by a victim or his/her representatives, at plea bargaining, at the level of sentencing or where a decision is likely to affect the right of the victim and not thought out the trial and parallel to the prosecution.”

11. This Court in Republic v David Muchiri Mwangi [2018] eKLR made reference to Republic v Titus Ngamau Musila [2018] eKLR where the court stated as follows:-“The rights and interest of the victims in proceedings of a criminal nature under the provisions of the Victim Protection Act 2014 are only limited to situations where the court is making a determination in issue that affects them directly and has been stated well by Justice Abida Ali in the case of Republic v Joseph Lentrix Waswa Bungoma High Court Criminal Case No. 34 of 2014 thus:-“(24) As indicated earlier the subject is moot and there are conflicting High Court decisions on the subject as seen from authorities cited.(25) In I.P Veronica Gitahi & P.C Issa Mzee Vs Republic Criminal Appeal No. 23 of 2016}} the Court of Appeal sitting in Mombasa considered the subject and the decision of the trial court with approval where Muya J had stated;‘… will allow interventions only on matters of law at appropriate stages of the proceedings where and if necessary … I will also allow submissions as need be. The victim while granted reasonable access the prosecution file is not allowed (sic) to add any point of fact or any evidence. In the present case file (sic) or to question witnesses.’(26) The Court of Appeal did not interfere with the decision of the trial court and went further to consider the effects of the provisions of Article 2 (5), 50(7) and 9 of the Constitution 2010 and had this to say;‘Articles 2 (5) and 50 (7) and (9) of the Constitution, 2010 heralded a new dawn apart from enjoining the courts to apply general rules of international law, the Constitution mandates the courts, in the interest of Justice to allow an intermediary to assist a complainant (or an accused) to communicate with the court, …’(28) The rational behind the emerging jurisprudence in line with the provision of the Constitution 2010 is well captured In the case ofSathyavani Ponrani Vs. Samuel Raj(supra) The issue before court was whether a victim is entitled to be heard and take part in a criminal trial or not. The Court considered the role of the prosecutor and that of the victim at length and made the following observations:-‘The public prosecution conducts the prosecution whereas a victim ventilates his grievance. A public prosecutor conducts the case with a sense of detachment whereas the victim is attached to the case. A decision made in a case does not impact a public prosecutor which is not the case with the victim who is the affected party.”

12. Wakiaga J. in the above decision went on to state that:-“16. It is clear from the reading of the stated sections (4(2)(b) and 9(2) of the Victim Protection Act 2014 that the victims have a broader right to have their views heard at any stage of the trial where the court is making any decision that is likely to affect them and to receive information on the status of the case in which they are involved with the only limitation being that their participation does not affect the rights of the accused to fair trial…”

13. In Leonard Maina Mwangi vs. Director of Public Prosecutions & 2 others [2017] eKLR Lesiit J. held that:“67 ………The victim should be allowed to participate at any stage of the proceedings, subject to the limits set in law as discussed above. The court should set the parameters of this participation in line with the VPA, the Constitution and any other relevant law including allowing cross examination of witnesses.68. In regard to cross examination I must put a rider. The need for having a focused prosecution as opposed to a parallel or competitive one must be guarded jealously. It is important that whatever cross examination that takes place must be within what is contained in the evidence provided by the defence and prosecution as the one they intend to rely on. That was the accused persons will not be taken by surprise or ambushed. A failure to observe this rule would be highly prejudicial to the accused person and may compromise fair trial.69. Adducing evidence through cross examination cannot therefore, be viewed outside the evidence before the court. Participation by a victim is premised on already existing evidence. The other prerequisite is that such evidence is subject to the dictates of the Evidence Act as to relevance and admissibility, the rights of an accused to a fair trial and requirements of a fair and impartial trial. Therefore, even where the victim has been allowed to cross-examine witnesses thereby adducing evidence, it is not an open cheque, it must be within the limits set out herein above, and even then there should be no compromise to the standards required of a fair trial.75. Participation by victims does not of itself compromise the fair trial guarantees. It is how such participation is conducted that must be measured to guard against jeopardizing the rights of an accused, and it is the duty of the court to so ensure. The law recognises and supports victims’ participation so long it does not tip over the right of an accused to fair trial. Furthermore, by participating in the proceedings, a victim’s counsel does not take over the role of the prosecutor..I find that the cross-examination of witnesses by the advocates for the victims neither compromised the accused persons’ right to a fair trial, nor hindered the prosecution’s ability to conduct a focused prosecution of the matter. I find that the cross- examination of witnesses by the counsels for the victims was the best avenue that a victim could use to bring out the evidence that had been left out by the prosecution in the examination in chief, and which evidence was within the statement of the witness supplied to the defence and the victim.82. The court has to remain vigilant throughout the trial. It must satisfy itself:i)that the victim in their line of cross-examination are not infringing on the rights of the accused, orII)that the victims’ participation does not infringe on the right to fair trial.III)that the accused are not ambushed or embarrassed by new evidence being introduced by the victims, which has not been supplied to them.83. However having settled the rules of engagement at the Pre-Trial Conference stage, there is no need for the victims to always seek permission from the court before they cross-examine witnesses. The court retains the right to intervene and stop or give directions on the nature of cross-examination where necessary.”

14. In the case of Gideon Mwiti Irea vs. Director of Public Prosecutions & 7 Others [2015] eKLR where the court held that:“...under Section 13(1) of the VPA a complainant has the right to adduce evidence that has been left out....The law above is clear and simple. A victim who is a complainant in a criminal case can adduce additional evidence that has been left out…”

15. The Supreme Court in Joseph Lendrix Waswa v Republic [2020] eKLR held that;“We are of the view that the victim has no active role in the decision to prosecute, or the determination of the charge upon which the accused will finally be tried. This is the sole duty of the DPP. While the victim of a crime can participate at any stage of the proceedings as deemed appropriate by the trial Judge, a victim or his legal representative does not have the mandate to prosecute crimes on behalf of the DPP. The DPP must at all times retain control of, and supervision over the prosecution of the case. As such, the constitutional and statutory powers of the DPP to conduct the prosecution is not affected by the intervention of the victim in the process.76. Additionally, a victim cannot and does not wear the hat of a secondary prosecutor. When victims present their views and concerns in accord with section 9(2) (a) of the VPA, victims are assisting the trial Judge to obtain a clear picture of what happened (to them) and how they suffered, which the Judge may decide to take into account.

16. The Supreme Court has given principles and guidelines on how the court can handle such cases as follows;77. The applicant must be a direct victim or such victim’s legal representative in the case being tried by the Court;b.The Court should examine each case according to its special nature to determine if participation is appropriate, at the stage participation is applied for;c.The trial Judge must be satisfied that granting the victim participatory rights shall not occasion an undue delay in the proceedings;d.The victim’s presentation should be strictly limited to “the views and concerns” of the victim in the matter granted participation;e.Victim participation must not be prejudicial to or inconsistent with the rights of the accused;f.The trial Judge may allow the victim or his legal representative to pose questions to a witness or expert who is giving evidence before the Court that have not been posed by the prosecutor;g.The Judge has control over the right to ask questions and should ensure that neither the victim nor the accused are not subjected to unsuitable treatment or questions that are irrelevant to the trial;h.The trial Court should ensure that the victim or the victim’s legal representative understands that prosecutorial duties remain solely with the DPP;i.While the victim’s views and concerns may be persuasive; and no doubt in the public interest that they are acknowledged, these views and concerns are not to be equated with the public interest;j.The Court may hold proceedings in camera where necessary to protect the privacy of the victim;k.While the Court has a duty to consider the victim’s views and concerns, the Court has no obligation to follow the victim's preference of punishment.

17. In balancing the rights of the Victim vis a vis that of the Accused person and also taking into account the role of the DPP, should the Victim advocate be allowed to go beyond raising concerns and views and go ahead to adduce evidence as per section 13 of the Victim’s Protection Act, 2014 then in line with fair trial principles and the right of reply accorded to the accused person, then he should have a chance to further question the witness as is the case here.

18. In this instance, the views and concerns are being raised at the trial stage in the form of questioning of the witness. It would not be fair to allow the questions to hang in the air without giving the accused person a chance to examine on the same. However, taking into consideration the time factor, it would be advisable to make such applications at the pre-trial stage to avoid delays during the trial so that directions can be taken on how to proceed.

19. The role of the Victim’s advocate as has been stated by this court should not be parallel to that of the prosecutor as it is this court’s assumption that in line with his rights, the victim was given access to all the evidence the prosecution intends to rely on and also had a chance to converse with the DPP so that if the Victim’s advocate were to make an application at the trial stage, it would be on new evidence or information that was left out at which point then and also depending on the circumstances, the Accused person would have a chance to further cross examine the witness.

20. This court in Leonard Maina Mwangi Supra where the intention to participate in the trial was expressed at the pre-trial stage ,observed that;“74. The only comment I wish to make about Mwiti Irea case, (supra) is fact section 13 of the VPA applies where the victim is the complainant in the criminal case. In the cited case, the complainant in the case was allowed to participate in the trial. The Constitutional Court held that there was nothing wrong for the complainant to take part in the trial and even call evidence if she required to do so. In the instant case, the victims are not the complainants, as the victims are deceased. By that I mean that the primary victims are the complainants in the case. Section 13 of the VPA does not therefore apply to this case.…………I find that the cross-examination of witnesses by the advocates for the victims neither compromised the accused persons’ right to a fair trial, nor hindered the prosecution’s ability to conduct a focused prosecution of the matter. I find that the cross- examination of witnesses by the counsels for the victims was the best avenue that a victim could use to bring out the evidence that had been left out by the prosecution in the examination in chief, and which evidence was within the statement of the witness supplied to the defence and the victim.”

21. The Court in in Leonard Mwangi (supra) gave orders that allowed the Victim’s counsel to if necessary examine the prosecution witnesses immediately following examination in-chief by the prosecution and before the defence.

22. This Court finds from the case law unpacked to aid interpretation and application of Section 9 & 13 of VPA a number of concerns arises;(a)The victim is now part and parcel of Court proceedings.(b)The victim’s counsel present concerns and views of victim.(c)The application by victim’s counsel may be made at any stage of the proceedings.(d)The victim representation is not restricted to any process as victims counsel is entitled to cross-examine or present evidence or file submissions or reply to application.

23. So long as;(a)The role of DPP/Prosecution is not vitiated interfered with and/or;(b)That the tenets of fair trial are not compromised or prejudicial to the accused person.

24. The dilemma is practically the Court cannot anticipate or speculate what the victim’s Advocate may state upon the Court granting the Applicant the opportunity to raise views and concerns of the victim.

25. Further, matters are complicated by the fact once the victim’s lawyer states its position, views and concerns the Court and parties/counsel cannot unhear, discard or ignore what has been said.

26. So to ensure fairplay and to err on the side of caution even if as in this case the evidence adduced did not touch/refer to the accused person; it was new evidence as it was not in the police file or with the defence therefore cross-examination is granted to the defence for further cross –examination to PW.1.

27. Going forward, this Court is persuaded by the decision of Leonard Maina Mwangi (Supra) that rules of engagement should/shall be agreed upon on the Victim’s Advocate/legal counsel’s role going forward in these proceedings.

28. Further mention 4/04/2022.

DELIVERED SIGNED & DATED IN OPEN COURT ON 15THMARCH, 2022 (VIRTUAL CONFERENCE).M. W. MUIGAIJUDGE