Shah v Republic (Criminal Revision E045 of 2026) [2026] KEHC 9106 (KLR) (29 June 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KIBERA** **CRIMINAL REVISION NO. E045 OF 2026** SIDDHANT NITIN SHAH………………………………………..APPLICANT VERSUS REPUBLIC……………………………………………………….RESPONDENT **RULING.** 1. The applicant moved this Court by a Notice of Motion dated 13th March 2026 seeking, in the first instance, an order staying and/or suspending the opinion, ruling, findings and recommendations contained in the ruling delivered on 17th December 2025 in Kibera Inquest No. E002 of 2025. The applicant further seeks an order calling for the entire record of the inquest to enable this Court examine the legality, correctness and propriety of the proceedings, ruling, findings and recommendations of the trial court. Consequent upon such examination, the applicant prays that this Court revises, vacates or sets aside the impugned ruling, findings and recommendations. 2. The application is supported by the applicant's affidavit sworn on 13th March 2026. The applicant deposes that the inquest was convened solely to inquire into the cause and circumstances surrounding the death of the deceased. He states that he testified before the inquest court as Prosecution Witness No. 2 and participated in the proceedings purely in the capacity of a witness assisting the court in its inquiry. He avers that at no stage was he informed that he was being treated as a suspect, cautioned, or notified that adverse findings of criminal culpability were being contemplated against him. 3. The applicant further contends that he was never afforded an opportunity to recall witnesses, adduce further evidence, or challenge any material relied upon by the trial court before it rendered its decision. He deposes that, notwithstanding his status as a witness, the learned magistrate, in the ruling delivered on 17th December 2025, proceeded beyond determining the cause and circumstances of death and found him culpable, recommending that he be charged with the offence of causing death by dangerous driving. 4. According to the applicant, the inquest court thereby exceeded its statutory mandate under the Criminal Procedure Code by making definitive findings on criminal liability without according him the procedural safeguards guaranteed under the Constitution and the law. He contends that the impugned findings effectively condemned him unheard and infringed his constitutional rights, including the right to a fair trial, the right to fair administrative action, the presumption of innocence, and the protection afforded under Articles 25(c), 47, 49 and 50 of the Constitution. 5. The applicant further avers that the learned magistrate failed to properly analyse the evidence on record, ignored material inconsistencies, failed to consider the absence of credible eyewitness evidence, and reached findings that were unsupported by the totality of the evidence. He maintains that, had the evidence been properly evaluated, the recommendation that he be charged could not reasonably have been made. 6. The applicant also places reliance on correspondence exchanged between the Office of the Director of Public Prosecutions and the National Police Service preceding the commencement of the inquest. He avers that the inquest was initiated following investigations which failed to identify credible eyewitnesses other than himself, and that the decision to proceed by way of a public inquest was informed by those evidential challenges. He contends that had the inquest court been apprised of that background, it may have arrived at a different conclusion. He further argues that the fact that the ODPP opted for an inquest rather than immediate prosecution demonstrates that there was insufficient evidence upon which to charge him at the outset. 7. The applicant further deposes that following the delivery of the impugned ruling, he was summoned by the Officer Commanding Station, Langata Police Station, and reasonably apprehends that he faces imminent arrest and prosecution pursuant to the recommendations made by the inquest court. He expresses concern that the impugned findings, having emanated from a judicial process, may subsequently be relied upon in criminal proceedings, thereby prejudicing his defence and undermining his right to a fair trial. 8. Finally, the applicant contends that where an inquest court contemplates making adverse findings against a person who has testified as a witness, it is obliged to comply with the safeguards provided under section 387(3) of the Criminal Procedure Code by according such person an opportunity to be heard before any recommendation for prosecution is made. He asserts that the failure to observe those procedural safeguards rendered the proceedings and the resultant findings legally flawed and unconstitutional. He therefore urges this Court to exercise its supervisory and revisionary jurisdiction under Articles 165(6) and (7) of the Constitution and sections 362, 364 and 365 of the Criminal Procedure Code by calling for the subordinate court record, examining the legality and propriety of the impugned ruling, and granting the orders sought. He further states that the application was filed promptly upon becoming aware of the steps being taken to implement the recommendations contained in the impugned ruling. 9. The application was canvased by way of written submissions which have been duly considered and there is no need to rehash them. 10. The present proceedings have been brought by way of revision, and this Court is properly seized of jurisdiction under Articles 165(6) and (7) of the Constitution and sections 362, 364 and 365 of the Criminal Procedure Code to examine the legality, correctness and propriety of the proceedings, findings and recommendations of the subordinate court. 11. The principles governing the role of an inquest court were succinctly stated in **R v Maula Dad (1936) XVII KLR 70 at page 71**, where the High Court held: *"It is conceded, and there is ample authority for the proposition, that a Magistrate in committal proceedings is not bound to commit for trial simply because there is evidence on the one side which, if believed, would support a conviction; he is entitled to weigh the evidence, but at the same time, he is not entitled to usurp the functions of the Court of trial."* 1. The Court further cited with approval **Fattu v Fattu (1904) 26 All. 564,** stating: *"If he arrives at the conclusion, either at the close of the case for the prosecution or after hearing the accused's witnesses, that it (i.e. the evidence for the prosecution) is not true, he can give effect to his opinion by discharging the accused…. If it is a matter of weighing probabilities, he would be well advised in leaving the case to the court which alone is empowered to try it."* 1. These authorities underscore that the function of an inquest court is to evaluate the evidence placed before it and determine whether it discloses the commission of an offence and, if so, by whom. In undertaking that exercise, the court is entitled to weigh the evidence, but it must refrain from making definitive findings on criminal liability or otherwise usurping the function reserved for the trial court. A recommendation that a person be prosecuted is not a conviction and does not determine criminal responsibility, which can only be established after a full trial before a court of competent jurisdiction. 2. The applicant's principal complaint is that, although he testified before the inquest as Prosecution Witness No. 2, the learned magistrate ultimately recommended that he be charged with the offence of causing death by dangerous driving without first according him an opportunity to be heard as a person against whom adverse findings were contemplated. He contends that the inquest court exceeded its mandate and violated his constitutional right to a fair hearing. 3. Accordingly, an inquest court must carefully evaluate the entirety of the evidence before making any recommendation under **section 387** of the Criminal Procedure Code. Such a recommendation is not a conviction or a finding of guilt, but merely an opinion founded on the evidence adduced during the inquiry. The ultimate decision whether to institute criminal proceedings remains vested in the Director of Public Prosecutions, while the determination of criminal culpability rests exclusively with the trial court after a full hearing. 4. The question for determination in the present application is therefore not whether the learned magistrate correctly found the applicant criminally liable, but whether, in arriving at the impugned recommendations, the magistrate acted within the confines of the law, properly evaluated the evidence on record, and observed the procedural safeguards applicable to inquest proceedings. It is against those principles that this Court must examine the record in the exercise of its revisionary jurisdiction. 5. The record demonstrates that the learned magistrate conducted the inquest for the purpose prescribed under Part XI of the Criminal Procedure Code, namely, to ascertain the cause and circumstances of the deceased's death. In arriving at the impugned recommendation, the court considered the evidence of all the witnesses who testified before it, including that of the applicant, who was heard under oath. The applicant's complaint is, in essence, directed at the conclusions reached by the magistrate rather than the legality or regularity of the proceedings. 6. The record shows that he participated in the proceedings as a witness and gave his account of the events leading to the accident. The learned magistrate evaluated that evidence alongside the evidence of the other witnesses before arriving at the impugned recommendation. Whether that recommendation was ultimately right or wrong is not the question before this Court in the exercise of its revisionary jurisdiction. The Court is concerned only with the legality, correctness and propriety of the proceedings. 7. Having reviewed the record, I find no procedural impropriety, illegality or material irregularity that would warrant interference under sections 362 and 364 of the Criminal Procedure Code. The learned magistrate acted within the powers conferred by law, properly evaluated the evidence on record and made a recommendation which, by its very nature, is neither binding on the Director of Public Prosecutions nor determinative of the applicant's criminal liability. 8. Accordingly, I find that the application for revision lacks merit. The applicant has failed to demonstrate any illegality, incorrectness, impropriety or irregularity in the proceedings or the ruling of the inquest court to justify this Court's intervention. The Notice of Motion dated 13th March 2026 is hereby dismissed. Orders accordingly. **Ruling dated and delivered virtually this 29th day of June 2026** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **D. KAVEDZA** **JUDGE** **In the presence of:** Mr. Jaffer for the Applicant Ms. Otiya for the Respondent Karimi Court Assistant.