[2022] KEHC 15537 (KLR)

Republic v Sigat & 4 others (Criminal Revision E062 of 2021) [2022] KEHC 15537 (KLR) (Crim) (1 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15537 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Revision E062 of 2021

JM Bwonwong'a, J

November 1, 2022

Between

Republic

Prosecutor

and

Khalifa Abdulahi Sigat

1st Accused

James Muli Koti

2nd Accused

Joseph Odhiambo Sirawa

3rd Accused

Edward Kongo Onchonga

4th Accused

Nelson Nkanae

5th Accused

Ruling

The case for the accused/applicants 1. Counsel for the accused persons made an oral application for review of the denial of bail by this court based on change of circumstances. Counsel submitted that they are not able to conduct an effective defence for their clients because the prosecution has not supplied them with certain documents as ordered by the court on November 29, 2021.

2. Since the order of this court dated November 29, 2021 is the basis of the instant application, it is important to reproduce it. The terms of that order are as follows:“Entire defence be supplied with extract of1. O/B of September 17, 2018 of Changamwe police station2. Extract of cells register of September 17, 2018 of Changamwe police station3. A copy of the entire investigation diary4. An inquest file prepared by DCIO Changamwe police station/division5. The recommendation of DCIO that an inquest be held.”

3. On September 27, 2022 the case was taken out of the hearing list for that day and was set down for mention the following day on September 28, 2022 to enable the Independent Policing Oversight Authority (IPOA) and DPP comply with the order of the court dated November 29, 2021.

4. On September 28, 2022 counsel for the 2nd accused (Ms. Irene Ndegwa) and Mr Mwangi for the 3nd accused were not in court. The 2nd accused applied to be assigned counsel for his defence.

5. As a result, the case was set down for mention on October 3, 2022. The court on that same day ordered for the issuance of a witness summons to be served by IPOA upon the OCS Changamwe police station to produce the cells register.

The evidence of the OCS Changamwe police station x 6. On October 3, 2022 the OCS Changamwe Police station (No 23xxx8 C I Abdinur Hussein Dakane) in obedience to the court summons attended court. He testified as follows. He took over the station from CI Wanyoike on December 7, 2021. He further testified that this was the first time that he had received a communication from IPOA that the documents were needed by this court in relation to this case. He received this information from IPOA on September 29, 2022.

7. He continued to testify that the documents that were required by IPOA were as follows:1. Occurrence book for the period starting September 1, 2018 to September 20, 2018. 2.Cells register for the period of September 18, 2018 to December 2, 2018. 3.The OCS testified that the cover and last pages of the said cells register for September 18, 2018 and December 2, 2018 are missing.

8. Upon cross examination by the prosecution (Ms. Maina), the OCS testified that entry No September 17, 2018 for serial numbers 1 to 41 in respect of the cells register are missing, but the corresponding OB entries for September 17, 2018 were in existence and were intact. In other words, the corresponding entries of the OB were not missing.

9. When he was cross examined by Mr Ayora, for the 1st accused, the OCS testified that since December 7, 2021 to September 29, 2022, he had never received any request from IPOA or any police station or a court order to produce the foregoing documents.

10. The OCS also testified that the OB entries and the entries for the cells register for any particular date are always the same for any given date. And that he realised that the entries for the cells register for September 17, 2018 were missing, when he received the summons from this court.

11. The OCS further testified that the deceased was booked in the OB under OB No 100 on September 18, 2018 as an unknown person, since he refused to give his name. The deceased was taken to hospital under OB No 117 time 2245 hours and the same is reflected in the cells register.

12. Furthermore, the OCS testified that the OB and cells register are not part of what is handed over from the previous OCS and that the same OB and cells register are shared by the traffic and CID police.

13. It is clear from the provisions of the IPOAActNo. 35 of 2011, that it is vested with extensive investigatory powers by virtue of section 7 of that act, which are set out below as follows.“7(1)The authority shall have all the powers necessary for the execution of its functions under this Act, and without prejudice to the generality of the foregoing, the authority shall have the power—(a)To investigate the service on its own motion or on receipt of complaints from members of the public, and for that purpose, to gather any information it considers necessary by such lawful means as it may deem appropriate, including by—(i)Requisition of reports, records, documents or any information from any source, including from the Police, irrespective of whether that source is located within or outside Kenya and irrespective of whether any other person or body, other than a court of law, has already instituted or completed a similar investigation or similar proceedings;(ii)Entering upon any establishment or premises, including Police premises, on the strength of a warrant, and subject to any relevant law, where the premises are a private home or dwelling;(iii)Seizing and removing any object or thing from any premises, including Police premises, which may be related to the matter under investigation, and in respect of which a receipt shall be given to the owner or person apparently in control of the object or thing;(iv)Interviewing and taking statements under oath or affirmation from any person, group or members of organizations or institutions and, at its discretion, to conduct such interviews in private;(v)Summoning any person to meet with its staff, or to attend any of its sessions or hearings, and to compel the attendance of any person who fails to respond to its summons;(vi)Administering oaths or affirmations before taking evidence or statements where necessary;(vii)Summoning any serving or retired Police officer to appear before it and to produce any document, thing or information that may be considered relevant to the function of the Authority;(viii)Ensuring that where necessary, the identities of complainants or witnesses are not disclosed to their detriment;(ix)Recommending to the Director of Public Prosecutions the prosecution of any person for any offence;(x)Investigating any death or serious injury occurring or suspected of having occurred as a result of police action.(b)To take over on-going internal investigations into misconduct or failure to comply with any law if such investigations are inordinately delayed or manifestly unreasonable;(c)Where appropriate, to provide relevant information to enable a victim of unlawful police conduct, to institute and conduct civil proceedings for compensation in respect of injuries, damages and loss of income;(d)Require the Director of Public Prosecutions to provide it with his response to any recommendation made by the Authority to prosecute any person or body;(e)Require the Service to within a specified, reasonable time, provide it with information on issues relating to policy, its implementation and its effectiveness, and its response to any recommendation made to it by the Authority;(f)Subject to the approval of a complainant, and only if it is not a serious complaint, reconcile or mediate on any matter within its mandate; and(g)Exercise any other power provided for in this Act or any other law which is necessary for the effective performance of its functions.(2)The Authority may in the exercise of its powers under this Act, request and receive such assistance from the or any other governmental or international body or person as may in its opinion be necessary in the exercise of its powers.(3)The Authority may in exceptional circumstances regarding matters of national importance submit a report simultaneously to the National Assembly and the Cabinet Secretary if such a matter requires urgent consideration for the well-being of the people of Kenya.”

14. It is important to note that IPOA would lawfully request any police station for any information that it requires for investigations purposes. It is also authorized to recommend to the Director of Public Prosecutions of any person for any offence in terms of section 7 (1) (a) (ix) of the IPOA Act. It therefore follows that IPOA lacks prosecutorial powers, which are constitutionally vested in the DPP’s office except for offences of contempt of court, private prosecutions and offences under the Defence Forces Act. It also follows that the spokesman of IPOA in court is the DPP which includes prosecution counsel. The DPP is also the spokesman for all governmental investigatory agencies for cases filed in court excluding cases that are tried by courts martial under article 157 (6) (a) (b) of the Constitution of Kenya

15. All defence counsel informed the court that they were not ready to proceed to hearing unless and until they were provided with the documents set out in this court’s order of September 29, 2021. As a result, the hearing of this case had to be taken out of the hearing list for 4th and October 5, 2022.

The case for the respondent prosecution 16. Ms. Maina for the prosecution opposed the application for review of the order which refused the grant of bail to the accused. The first ground of opposition was that the issue was raised on a date that was set down for mention. The second ground for opposition was that the prosecution faced challenges including compilation of the documents they were required to disclose to the defence.

Issues for determination 17. I have considered the application for review of the order denying bail to the accused.

18. As a result, I find that the following are the issues for determination.1. Whether the issue of an application can be raised during a mention in court.2. Whether the prosecution have been diligent in their disclosure obligations.3. whether I should review the order refusing bail/bond

Issue 1 19. I find that the defence were entitled to raise the issue of the court order dated September 29, 2021 directing the prosecution to disclose to the defence materials they intended to rely upon during trial. This obligation is imposed upon the prosecution by article 50 (2) (j) of the 2010 Constitution of Kenya, which provides as follows:(2)Every accused person has a right to a fair trial, which includes the right-(j)to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence;

20. It is clear therefore that the prosecution has not discharged its constitutional disclosure obligation close to now one year. I find that they have not been diligent. This clear from the evidence of the OCS Changamwe Police station (No 23XXX8 C I Abdinur Hussein Dakane), whose credible evidence was that he was not aware that the Occurrence book for the period starting September 1, 2018 to September 20, 2018 and the cells register for the period of September 18, 2018 to December 2, 2018 were required in court until he was served wit a court summons to appear in court on September 3, 2022.

21. It was therefore proper for defence counsel to raise the issue of non-disclosure when the case was for mention; since it was a matter that did not require any investigation. All that the defence counsel did was to bring to the attention of the court that its order had not been complied with.

Issue 2 22. The prosecution is constitutionally obliged to disclose to the defence the material they intend to rely upon. The basis of that obligation is set out in article 50 (2) (j) of the Constitution which is coached in the following terms:(2)Every accused person has the right to a fair trial, which includes the right-(j)to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence;

23. The purpose of this provision is first and foremost intended to avoid trial by ambush. Secondly, it is intended to enable the defence to prepare for their defence which includes the defence strategy that is to be used during trial. Additionally, the prosecution is also required to disclose any material that came into their possession in the course of their investigations, which they do not intend to rely upon in the trial.

24. The foregoing constitutional disclosure obligation was approved by the Court of Appeal (Omolo, O’Kubasu and Onyango JJA) in Thomas Patrick Gilbert Cholmondeley vs Republic [2008] eKLR, where that court pronounced itself in the following terms:We think it is now established and accepted that to satisfy the requirements of a fair trial guaranteed under section 77 of our Constitution, the prosecution is now under a duty to provide an accused person with, and to do so in advance of the trial, all the relevant material such as copies of statements of witnesses who will testify at the trial, copies of documentary exhibits to be produced at the trial and such like items. If for any reason the prosecution thinks it ought not to disclose any piece of evidence in its possession, for example, on the basis of public interest immunity, they must put their case before the trial judge or magistrate who will then decide whether the claim by the prosecution not to disclose is or is not justified.”

25. Furthermore, it should always be borne in mind that materials gathered in the course of investigations is public property in the possession of the investigating agency as a trustee. If there is any challenge to the disclosure of the material, the public prosecutor is bound to make an application to have his claim for non-disclosure in open court for resolution. This court told the prosecutor to do so in its order of May 4, 2022. Up to date no such application has been made.

26. It is important to point out that within that period of about one year to date the prosecution (DPP) on behalf of IPOA and the police has not made any application in court to seek a judicial determination in respect of any challenges that the DPP is facing. This court is not in a position to know whether those challenges are of a legal nature or administrative challenges. In this regard, article 10 (2) (c) of the 2010 Constitution of Kenya requires transparency and accountability in the conduct of governance of public affairs, which includes the administration of justice.

27. The unchallenged and credible evidence of the OCS Changamwe Police station (No 23XXX8 C I Abdinur Hussein Dakane), was that he was not aware that the Occurrence book for the period starting September 1, 2018 to September 20, 2018 and the cells register for the period of September 18, 2018 to December 2, 2018 were required in court until he was served with a court summons to appear in court on September 3, 2022; which is almost a year since the order for disclosure was handed down.

28. In view of the delay of up about one year within which the prosecution failed to discharge their constitutional disclosure obligations, I find that the prosecution was not diligent in the discharge of their duty.

Issue 3 29. The prosecution has forced the following adjournments, when this case was fixed for hearing. On 4th and May 5, 2022, on 28th and September 29, 2022 and on 3rd, 4th, and October 5, 2022.

30. The law in this regard is that where the prosecution is causing delay in the hearing and determination of the case the court may grant bail/bond. In this regard, I find as persuasive the decision of this court (Kimaru, J as he then was) in Guyo Gorsa Boru v Republic [2020] eKLR, where that court observed that: -Some of the grounds that constitute changed circumstances include where the prosecution has inordinately or unjustifiably failed or delayed to avail witnesses before court; where it is established that from the evidence already presented in court by the prosecution witnesses, the likelihood that conviction will ensue was remote; where the health status of the accused has changed and requires medical attention that cannot be provided when he is in remand custody; that the accused has been able to partially meet the terms the court imposed for his release on bail pending trial and where it is established that the basis upon which the charges were laid against the accused has changed. This may include where the charge facing an accused is reduced from a more serious charge to a less serious one. The above list is not exhaustive but is meant to serve as a guide when the court is considering whether there exists changed circumstances to warrant the review of denial or grant of bail.”

31. In the present application, it is clear that the prosecution has not shown good cause as to why it has not complied with the court order of September 29, 2021 in respect of its constitutional disclosure obligations. The prosecution has not made any formal application in court to have any challenges they are faced with in court for judicial resolution. All that the court is being told is that it is faced with undisclosed challenges.

32. As a result of prosecution disclosure strategy, the hearing and determination has been delayed, which if prolonged might prejudice the fair trial of the case.

33. There are two issues raised by Mr Omari that merit attention. The first one is that there is not in place a prescribed procedure of making an application for bail/bond or a review of an order where bail/bond has been refused. TheConstitution in its wisdom does not prescribe the rules of procedure and practice on how a party may approach the court in these matters. This is wisely left to the implementing statute such as the Criminal Procedure Codeand rules of the court.

34. It has been the practice in this court for a party to move it by way of a notice of motion supported by an affidavit of the party; in applications that raise evidentiary issues. The source of this practice and procedure is section 3 of the Judicature Act (Cap 8) Laws of Kenya, which requires the court to apply the practice and procedure of the English courts of justice; which is couched in the following terms:3 (1)The jurisdiction of the Supreme Court, the Court of Appeal, the High Court, the Environment and Land Court, the Employment and Labour Relations Court and of all subordinate courts shall be exercised in conformity with-(a) theConstitution; (b) subject thereto, all other written laws, including the Acts of Parliament of the United Kingdom cited in Part I of the Schedule to this Act, modified in accordance with Part II of that Schedule; (c) subject thereto and so far as those written laws do not extend or apply, the substance of the common law, the doctrines of equity and the statutes of general application in force in England on the August 12, 1897, and the procedure and practice observed in courts of justice in England at that date: Provided that the said common law, doctrines of equity and statutes of general application shall apply so far only as the circumstances of Kenya and its inhabitants permit and subject to such qualifications as those circumstances may render necessary. CAP 8 Judicature [Rev 2018] 6 (2) The Supreme Court, the Court of Appeal, the High Court, the Environment and Land Court, the Employment and Labour Relations Court and all subordinate courts shall be guided by African customary law in civil cases in which one or more of the parties is subject to it or affected by it, so far as it is applicable and is not repugnant to justice and morality or inconsistent with any written law, and shall decide all such cases according to substantial justice.”

35. However, where the issue raised is one of pure law it is sufficient to draw the attention of the court to it. The court may also take judicial notice of that same issue.

36. It is therefore not correct that that there is no prescribed procedure by which an aggrieved party may approach the court.

37. If the issue raised involves or touches on matters of alleged facts, it is necessary for that issue to be brought to attention of the court by way of an affidavit.

38. The second matter raised by Mr Omari is in respect of an allegation that IPOA is punishing the accused persons in opposing their release on bail/bond. This was an allegation of a factual nature that ought to have been raised by way of an affidavit. In raising this issue Mr Omari was inviting the court to make a finding in the absence of affidavit evidence; which I hereby decline to do so. In other words, the court was being requested to engage in a speculative exercise, which is legally impermissible.

39. Finally, Mr Omari urged the court to resort to its inherent powers to review the denial of bail to his client, the 4th accused. Review of the denial of bail was done pursuant to the court’s inherent powers, since there is no statutory and constitutional basis for it. The usage of inherent powers of the court was raised and addressed in the case ofStanley Munga Githunguri v Republic (1986) KLR 1 and the English cases cited therein.

40. After considering all the foregoing matters, I find that there has been a change in the circumstances of this case; which is the failure of the prosecution to timeously discharge its disclosure obligations; which forced the court to twice adjourn the trial that had been scheduled for trial.

41. I am therefore entitled to review the order denying bail/bond to the accused. I hereby do so by granting them bail/bond in the sum of shillings one million with two sureties of a similar amount to be approved by the Deputy Registrar of this court.

42. In the alternative, each accused may be released on a cash bail of shillings eight hundred thousand (shs 800, 000/-).

43. Additionally, the accused should report to IPOA once every two weeks during working days in every calendar month.

44. The accused will remain in custody until they comply with the terms of their release on bail/bond pending their trial.

RULING SIGNED, DATED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 1ST DAY OF NOVEMBER, 2022. J M BWONWONG’AJUDGEIn the presence of-*Mr. Kinyua: Court AssistantMs. Peris Maina for the RepublicMr. Omayio holding brief for Mr. Ayora for the 1st accusedMr. Mwale for the 2nd accusedMr. for the 2nd accusedMr. Gachoka for the 3rd accusedMr. Omari and Mr. Omayio for the 4th accusedMr. Gachoka holding brief for Mr. Osanjo for the 5th Accused.Ms. Kimotho for IPOAMr. Shikanga for IMLU