[2022] KEHC 16415 (KLR)

Rioba & another v Director of Public Prosecutions; Ochieng & 2 others (Interested Parties) (Criminal Petition E003 of 2021) [2022] KEHC 16415 (KLR) (3 November 2022) (Judgment)

Neutral citation: [2022] KEHC 16415 (KLR)

Republic of Kenya

In the High Court at Mombasa

Criminal Petition E003 of 2021

A. Ong’injo, J

November 3, 2022

Between

Vivian Moraa Rioba

1st Petitioner

Monica Wacheke

2nd Petitioner

and

Director Of Public Prosecutions

Respondent

and

Stephen Ochieng

Interested Party

Samuel Onjoro Omollo

Interested Party

Daniel Samuel Musta

Interested Party

Judgment

1. The petitioners herein Vivian Moraa Rioba and Monica Wacheke by a Petition dated November 29, 2021 prayed for: -a.A declaration that the Petitioners’ fundamental constitutional rights inter-alia, right to fair hearing and right to have a trial concluded without unreasonable delay has been violated by the Respondent.b.A declaration that the Respondent has infringed on the Petitioners fundamental right enshrined in articles 27, 28, 50 and 43 of the Constitution of Kenya 2010 and further that the Respondent has also violated the constitutional provision set out in Articles 10 and 47. c.The court to either quash the criminal charges facing the petitioners in Mombasa CR. Case No. 1401 of 2018 Republic vs Vivian Moraa Rioba & 10 Others ord.In the alternative, the court to direct that the said Mombasa CMC CR. Case No. 1401 of 2018 Republic vs Vivian Moraa Rhoba & 10 Others be heard and determined within a reasonable period of time possible considering the circumstances including listing of the matter and same allowed to proceed whether or not Mombasa High Court CR. Appeal No. 116 of 2019 will have been determined or not.e.Special damages in the sum of Kshs. 1,000,000/= being legal fees paid by the petitioners to defend criminal case.f.General damages against the Respondent plus interest at court rates from the date of filing of the petition till payment in full.g.Costs of the petition.h.The court do issue such orders and give such directions as it may deem fit to meet the ends of justice.

2. The petition is supported by the facts of the case at page 2 of the petition, particulars of breach of the constitutional provisions and fundamental rights by the Respondent and Affidavit sworn by the 1st Petitioner Vivian Moraaa Rioba on November 29, 2021.

3. The background to the petition is set out in the supporting affidavit sworn by the 1st petitioner on November 29, 2021 to the effect that she was an employee of Kenya Revenue Authority together with her co-petitioner and co-accused persons in Mombasa CMC CR. Case No. 1401 of 2018.

4. It is averred in the supporting affidavit that the petitioners and their co-accused were charged with the offence of conspiracy to impart and clear substandard brown sugar imported from Egypt and cleared at the Kilindani Port Mombasa.

5. That the Respondent called 27 witnesses and produced 100 documents to support charges against the petitioners and their co-accused.

6. That the Respondent alleged that the offences were committed by the petitioner and their co-accused in connivance with one another as each person allegedly played a role to have the said consignment released from the port without following due protocol.

7. The 1st Petitioner deposed that upon close of prosecution case the trial Magistrate found the petitioners A1 & A2 together with A3, A4, A5 & A11 had a case to answer and they were placed on defence whereas A6, A7, A8, A9 & A10 were acquitted under Section 40 Criminal Procedure Code.

8. That the court set matter for defence hearing on 4th & 5th March 2020. However prior to the date set for defence hearing the Respondent filed an appeal against part of the ruling in Mombasa High Court Criminal Appeal No. 116 of 2019 DPP vs Peter Nzuri Chidenge Mwadzwe & 5 Others: - Annexture ‘VMR – 3’.

9. That on 4th March 2020 when the petitioners and the interested parties were ready to tender their defence they were shocked to hear the Respondent asking the court to stay the hearing to await outcome of the said criminal appeal in the High Court.

10. That the petitioners and interested parties strongly opposed the said application by the Respondent. That the Respondent subsequent filed Mombasa High Court Criminal Revision No. 8 of 2020, DPP vs Vivian Moraa Rioba & 6 Others.

11. That after quite a delay the ruling of the said criminal revision was delivered – Annexture VMR – 4’. That the ruling on the Criminal Revision stopped any further proceedings in the Criminal Case until after the Criminal Appeal aforesaid is finalized.

12. The petitioner argued that the order of stay of the proceedings violates their constitutional and fundamental rights as follows: -a.As a result of the unreasonable conduct of the Respondent, CR. Case No. 1401 of 2018 has been pending in court without it either being heard on mentioned for over 2 years and there is a serious travesty of elementary justiceb.Although the Respondent was very quick in filing criminal revision no. 5 of 2020 which moved the court to issue drastic orders of indefinitely stay of the hearing of the criminal case No. 1401 of 2018 after getting those orders the Respondent has not moved the court to hear the appeal in CR. A. 114 of 2019. c.The petitioners have no capacity to fast track the hearing of the said criminal appeal case as they are not even parties therein.

13. The petitioners and interested parties are of the view the Respondent is playing mind games with them and they are lost with no idea when the issue that brought them so much frustration will end.

14. That the delay by the Respondent to have the appeal and the criminal matter determined is a blatant violation of the petitioners right as enshrined under article 50(2) (e) of the constitution of Kenya 2010 as the trial has been pending before court for the past 4 years and there are no signs of it being concluded anytime in the near future.

15. The petitioners and interested parties argue that as a result of being charged they were suspended from work and placed on half their salary and they have not had a chance to date to return to work to earn a living. That as a result of being confined to their houses and having nothing useful to do in terms of exerting their mental fortress they have suffered much stress and are now suffering grave punishment even while the said criminal case has not been determined. That they have been subjected to mental anguish and depression and which has taken a toll on their families as they are unable to fund for their families or even lead a normal life with the half salaries.

16. The petitioners and interested parties aver that there is no justification for being subjected to mental anguish and depression and the Respondent showed pay them general damages.

17. In response to the Application the Respondent vide a 30 paragraph replying affidavit sworn by Eunice Oloo on 4th day of March 2022 it was averred that the case against the petitioners and their co-accused is complex in nature, with voluminous documentation and involved many witnesses and is a great public interest case.

18. That at all material times the Respondent ensured that the case at the trial court had progressed expeditiously as enshrined under article 50(2) (e) of the Constitution and the petitioners did not find any fault in the manner which the prosecution steered the case at trial.

19. It was further averred that the Respondents were aggrieved by the ruling on case to answer delivered on November 22, 2019 wherein A1 to A5 were put on defence and whereas A6 to A11 were acquitted and they uptly sought to overturn the trial court’s ruling vide Mombasa High Court CR. A. No. 116 of 2019 and they cannot be faulted for exercising their rights of appeal guaranteed under the criminal justice system.

20. It was further deposed that in Mombasa High Court Case Cr. Rev. No. 8 of 2020 conservatory orders of stay pending the outcome of the Appeal were issued and the Executive Officer Mombasa Chief Magistrates Court directed to ensure that duly certified proceeding of the lower court were supplied within 14 days.

21. That despite those directions and several mentions for the proceedings of the lower court the same were not supplied and therefore delay cannot be attributed to the Respondent as they took necessary steps to have directions issued by the High Court in respect of the pending appeal and several directions were issued including summoning the officer in charge of Mombasa CMC. CR. Registry to show cause.

22. It was also deponed that COVID-19 pandemic also contributed to delay as it led to scaling down and eventual closure of most government facilities including the judiciary.

23. It was averred that the contents of the petition are materially untruthful, misconceived and an abuse of the court process. It was averred that the petitioner had not invoked the proper jurisdiction of the High Court as they are attempting to challenge the conservatory order of stay in favour of the Respondent through the back door. That they ought to have sought to set aside the stay orders as opposed to filing a petition.

24. That it is an abuse of the court process for the petitioners to seek the court to interfere with orders issued by a court of concurrent jurisdiction.

25. It was also argued that the Respondent will be prejudiced gravely if orders in the petition are granted as it will be unfairly & unlawfully denied the right to exercise its constitutional and statutory mandate in pursuing the provided legal mechanism of challenging unfair and unjust decision this occasioning an injustice.

26. The Respondent denied having derogated any of the petitioners’ and interested parties’ fundamental rights and freedoms as guaranteed in the constitution and that the petition should be dismissed.

27. This petition was canvassing by way of written submissions. The petitioners’ submissions were filed on March 22, 2022 whereas the Respondents submissions were filed on March 24, 2022. Advocates for the parties highlighted their submissions on May 20, 2022.

Petitioner’s submission 28. The petitioners submitted that article 50(2) (e) of the Constitution of Kenya 2010 provides that every accused person has the right to fair trial which includes the right to have trial begin and conclude without unreasonable delay.

29. It was further submitted that article 50(2) (e) is buttressed by the provisions of article 159(2) which provide that in exercising judicial authority, courts and tribunals shall be guided by the principle that justice shall not be delayed and is to be exercised without undue regard to procedural technicalities.

30. The petitioners relied on the decision in coalition for Reform and Democracy and Another vs Republic of Kenya & Another, Petition Nos. 628 & 630 of 2014 [2015] eKLR where Odunga, J. held: -“…it must be remembered that article 50 of the Constitution, is one of the ‘protected’ Articles by article 24 & hence cannot be limited.”

31. The petitioners argued that the Respondents violated their rights to have the criminal case before the Chief Magistrate’s Court concluded without unreasonable delay hence a violation of article 50(2) (e) of the constitution of Kenya 2010.

32. That the criminal trial has been pending before court for the past 4 years and there are no signs of the said matter being concluded anytime in the near future.

33. The petitioners referred the court to the decision in Republic vs AG & 3 Others Exparte Kamlesh Mansukhlal Pattni [2013] eKLR where it was held:“it cannot be gain said that Article 50(2)(e) of the Constitution is not limited to the commencement of the trial but also…”.

34. It was argued that the delay in determining appeal filed in the High Court against the ruling of the trial court dated 22nd November 2019 is a grave violation of the right to have a trial concluded without unreasonable delay as provided for under article 50(2) (e) of the constitutional of Kenya 2010.

35. The petitioners further contended that they have the right to equal protection and benefit of the law under articles 27 (1) of the Constitution and they are not an exception to the enjoyment of that rights they should be protected to have fair & speedy trial in equal manner as per the National Values enshrined in Article 10 of the constitution.

36. They argued that their co-accused were given preferential treatment and it is not fair that they should continue waiting until another case belonging to another party originally charged together is completed. It was argued that it would be fair to allow the Petitioners continue with their matter and whoever is dissatisfied with outcome is entitled to file for an appeal.

37. Further submissions by petitioners is that their right to Labour under article 15 of the International Covenant on Economics, Social & Cultural Rightshad been violated by the Respondents as they were stopped from work after being charged and they lost their ability to earn a living.

38. That the effect brought about by the suspension from work & earning half salary is that the petitioners & their families have to adopt a new lifestyle which is less comfortable as they have to do with only half of what they previously earned for the last 3 years. That this is in derogation to article 43 of the constitution.

39. The petitioners further argued that on being charged they were exposed to ridicule and their right to personal dignity as embodied in Article 28 of the Constitution violated. It is the petitioners new that the manner the Respondent has mixed up the pending Criminal Appeal No. 116 of 219 with the hearing of Criminal Case No. 1401 of 2018 lacks the principles of credibility, accountability transparency, good governance and the rule of law as provided for under articles 10 and 47 of the Constitution of Kenya 2010.

40. Reliance was made to the case of Republic vs Permanent Secretary, Ministry of Medical Services Ex-parte Puis Wanjala [2011] eKLR where the court quoted the case of Republic vs Commissioner of Co-operatives exparte Kirinyaga Tea Growers Co-operative Savings & Credit Society Ltd C.A. 39/97119991/EALR 245 in which the Court of Appeal warned that: -“…it is axiomatic that statutory powers can only be exercised validly if they are exercised reasonably. No statute ever allowed anyone on whom it confers power to exercise such power arbitrarily, capriciously or in bad faith…”

41. It was argued that there is no law that gives jurisdiction to stay an accused person’s trial so as to await an appeal in the matter of a former accused. In any event the law requests that all actions by the DPP to be fair, reasonable and just. On the issue of jurisdiction, the holding of owners of the motor vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR was relied on.

42. The case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] IKB 233 was relied on to support the position that whenever a public officer takes an unreasonable position the court has a duty to interfere so as to protect the rights of the citizens.

43. The Petitioners also relied on the case of Reuben Mwangi v DPP & 2 Others and UAP Insurance & Another (IP) [2021] eKLR is referred to show that order of certiorari & prohibition may be made when illegality procedural impropriety and in reasonableness are exhibited by a public officer: -

44. The petitioners urged the court to find that the Respondent has acted in an unreasonable manner and should be controlled as their actions are abusing the rights of the petitioners and the court should direct that the case be heard and determined within a reasonable period of time. The petitioners also prayed for special and general damages in terms of legal fees and for violations suffered while waiting for determination of trial against them. See Kenya Tourist Development Corporation v Sundowner Lodge Limted [2018] eKLR.

45. The petitioners argued that the Respondent instead of upholding their fundamental rights has completely failed and in fact trampled on their rights and they should be awarded damages. They relied on 2 authorities: Peter Ndegwa Kiai t/a Pema Wines & Spirits v AG &2 others (C.A. 243 of 2017) [2021] KECA 328 (KLR)(Civ) (17 December 2021) – where Kshs.5, 000,000/= was awarded as general damages for infringement of constitutional & fundamental rights and Edward Akongo Oyugi & 2 Others vs AG [2019] eKLR where High Court awarded between 6,000,000/= to Kshs. 20,000,000/=for violation of fundamental rights & freedoms enshrined in the constitution.

46. In the Respondents submissions dated March 22, 2021, it was argued that the exercise of their right of appeal under section 347 of the criminal procedure code cannot be construed as an infringement of the petitioners’ rights. It was submitted that the Respondent has always upheld and defended the natural values and principles of credibility, accountability, transparency, good governance and the rule of law at all times. That all administrative actions taken by the Respondent are in compliance and furtherance of articles 10 & 47 of the constitution of Kenya 2010.

47. The respondent argued that it is grossly it is grossly misleading & untrue for petitioners to allege that they acted in in a biased manner that was characterized by open contempt and ill will.

48. The Respondent identified 2 issues for determination namely: -i.Whether the Respondent caused delay on having the appeal determined.ii.What is the effect of orders from court of convenient jurisdiction?

49. The Respondent contended that delay in prosecuting appeal was due to unavailability of certified copies of proceedings in CR. Case No. 1401 of 2018 and not because of their fault. It was submitted that in pursuit of the said proceedings they wrote letters & visited the Registry severally but their efforts did not bear fruit. It was argued that the petitioners did not prove that the delay was as a result of the Respondent’s fault and the petition should fail.

50. On the issue of effect of orders from courts of concurrent jurisdiction the Respondent submitted that the Petitioners had not invoked the proper jurisdiction of the High Court. It was the Respondent’s view that the petitioners are challenging the conservatory order of stay through the back door. That they ought to have moved the court to set aside the orders on appeal. The holding on Bellevue Development Company Ltd v Francis Gikonyo & 7others [2018] eKLR was relied, on where it was held:-“I have no difficulty upholding the learned Judge?s holding that as a judge of the High Court he had no jurisdiction to enquire into or review the propriety of the decisions of the Judges, who were of concurrent jurisdiction as himself. In our system of courts, which is hierarchical in nature, judges of concurrent jurisdiction do not possess supervisory jurisdiction over each other. No judge of the High Court can superintend over fellow judges of that court or of the superior courts of equal status. That much is plain common sense. It has, moreover, been expressly stated in article 165(6) of the Constitution in these terms;“The High Court has supervisory jurisdiction over the subordinate courts and over any other person, body or authority exercising a judicial or quasi judicial function, but not over a superior court.” (Our emphasis)”

51. The Respondent also relied on the decision of Murithi J. in Civicon Limited v KRA & Another[2014] eKLR, Makau J. in Kennedy Mwaura Kibebe & 3 Others vs Annie Wanjiku Kibeh & 3 Others [2021] eKLR and Robert Alai Onyango vs Cabinet Secretary in charge of Health & 7 Others [2017] eKLR where a petition was struck out for reasons that the High Court’s supervisory jurisdiction is limited and cannot be exercised over superior courts.

52. The Respondent argued that this court cannot review the decision of a court of concurrent jurisdiction. The Respondent prayed that the petition be dismissed with costs.

Analysis and Determination 53. From the facts in the Petition, the affidavit in support of the Petition, the replying affidavit and the Submissions, it is not in dispute that the petitioners and the interested parties were charged in Mombasa Chief Magistrates Court CR. Case No. 1401 of 2018 with various offences in about 11 (Eleven) Counts.

54. It is also not in dispute that the petitioners and interested parties were found to have a case to answer and were placed on defence. It is also not in dispute that the Respondent filed appeal no. 116 of 2019 to challenge the ruling in CR. Case No. 1401 of 2018 where the trial Magistrate acquitted some of the accused persons under section 210 Criminal Procedure Code and placed the petitioners and interested parties on defence.

55. It has been brought to the attention of this court that the trial court declined to stay proceedings in the criminal trial and the Respondent filed High Court Criminal Revision No. 8 of 2020 in which the trial Judge issued orders staying the proceedings in Mombasa Chief Magistrate’s Court Criminal Case No. 1401 of 2018 pending the hearing and determination of High Court Criminal Appeal No. 116 of 2019.

56. What is falling for determination is whether this court can set aside and or review the orders in High Court Criminal Revision No. 8 of 2020 on account that the delay in determining Mombasa Chief Magistrate’s Court Criminal Case No. 1401 of 2018 has violated the fundamental rights and/or freedoms of the petitioners and the interested parties.

57. This court wishes to acknowledge that a delay of 4 years without having charges against one determined is an inordinate delay and this court sympathizes with the petitioners and the interested parties. I have however called for High Court Criminal Appeal No. 116 of 2019 and established that the same was filed on December 4, 2019 and that it was not until on May 20, 2022 that the Respondents were able to get Records of Appeal from the lower court and directions were taken that appeal be heard by way of written submissions. A perusal of the said appeal shows that mention is due on October 17, 2022 for highlighting of submissions.

58. The Records in the said file also show that as early as December 1, 2020 the court issued summons to Court Administrator for Mombasa Chief Magistrates court to avail the lower court file and the fact that it was bulky and required much more time is documented in the action follow up form at the back of the appeal file. This court cannot find that the delay in prosecuting the appeal has been occasioned by the Respondent.

59. Indeed, on receipt of the Records of Appeal on May 20, 2022 the Respondent moved with speed and filed their submissions on June 29, 2022 and served the Respondents therein. It means that had the Records of Appeal been ready in 2020 the appeal would have taken less than 3 months to be heard and determined.

60. Apart from the bulky file that the trial court had to type and prepare records of appeal we ought also take judicial notice of the fact that from March 2020 Covid-19 pandemic almost brought all government operations to a halt and Mombasa Law Courts was most hit and had to close for a long time in the initial stages and subsequently closed severally and even lost some of its staff and relatives of staff due to the pandemic.

61. This court therefore finds that there were excusable circumstances for the delay that can’t be blamed on the Respondent, the court, the petitioners or even the interested party.

62. The petitioners sought that this court orders that the criminal proceedings before the Magistrates court be quashed and/or should be ordered to proceed to conclusion. That would have been easy if there was no order for stay from a court of competent and concurrent jurisdiction. Hon. Njoki Mwangi, J. while making an order for stay of the proceedings also ordered that the Executive Officers supply duly certified proceedings of the lower court to the Advocates on record within 14 days.

63. As argued by the Respondent counsel in their submissions although this court’s jurisdiction is wide it does not extend to sitting an appeal or reviewing orders issued by superior courts or courts of concurrent jurisdiction.

64. The upshot of the above analysis is that the petition herein is not tenable and the same is dismissed with no orders as to costs.

Dated, signed and Delivered in Open Court/online through MS TEAMS this3rd day ofNovember 2022HON. LADY JUSTICE A. ONG’INJOJUDGEIn the presence of:Ogwel – Court Asst.Ms. Randa holding brief for Mr. Gikandi Advocate for the Petitioners the Interested PartiesMs. Randa holding brief for Mr. Magolo Advocate and Mr. Wameyo Advocate for Interested PartiesMs. Anyumba Advocate holding brief for Ms. Kahoro and Ms. Oloo Prosecuting Counsels for the RespondentHON. LADY JUSTICE A. ONG’INJOJUDGE