[2017] KEHC 3199 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CRIMINAL REVISION CASE NO. 129 OF 2017

SOLOMON NTINI OLOISHORUA

SAMSON SINKEET SIRONKA...........................................APPLICANTS

VERSUS

THE DIRECTOR OF PUBLIC PROSECUTIONS...............RESPONDENT

WILFRED NYANDORO NYABERI...........................INTERESTED PARTY

RULING OF THE COURT

1. Counsel for the Respondent herein Director of Public Prosecution has orally made an Application seeking this court’s recusal in hearing this Revision on the grounds that it seems this court did not properly direct its mind as regards the provision of Section 365 of the Criminal procedure Code. According to the learned counsel Mr. Omirera the court should have dealt with the matter suo-moto without inviting parties to submit on the issues raised in the revision. Counsel submitted that since the complaint raised touched on other personalities such as the Chief Justice and Chief Magistrate over lower court criminal case which is pending, the learned counsel felt that this court should have interrogated the contents of the letter by the Applicant. According to him inviting the parties has the effect of delaying the criminal trial now pending before the lower court that has not been prosecuted for over three years now. Counsel urged this court to place the matter before another court. Counsel further noted and appreciated that this court was not aware of the pendency of a Constitutional Petition which is about to be finalized. Further learned counsel took issue with the fact that this matter had not been brought under a certificate of urgency but however counsel for the Applicant took a date at the registry ex-parte. As far as the Respondent is concerned they perceive that justice is not likely to be done in this matter and hence the request for recusal by this court from the matter.

2. Mr. Nyandieka Counsel for the 1st Applicant submitted that an affidavit should have been filed indicating the grounds for recusal. He maintained that all parties had been served with the mention notice for directions. He further submitted that the issue of the pending Petition number 90 of 2016 has been disclosed to this court. Counsel further stated that this court had taken cognizance of Section 365 of the Criminal Procedure Code when it invited the parties to come and make submissions and that the 1st Applicant has since filed submissions as agreed before court on 28/09/2017. The learned counsel urged this court to reject the request for recusal as it is meant to circumvent any orders sought to be made herein. He further indicated that the lower court trial is scheduled for hearing on 9/10/2017. Again counsel pointed out the fact that on their part they had concluded submissions in the Petition No. 90 of 2016 before Hon. Justice Ogola with the Respondent remaining to finalize their submissions.

3. Mr. Nyaberi learned counsel for the Interested Party submitted that this court is not on trial and neither its predecessors. He maintained that there are certain thresholds needed for recusal. He submitted that there is no element of gross misconduct, bias, or unfairness, real or imagined warranting the unfortunate application for recusal. According to the counsel, it appears the same is meant to scuttle the hearing of the matter before the Chief Magistrate scheduled for Monday next week. He submitted that direction had been taken earlier on how this matter is to be disposed of and there are no reasons for recusal. He maintained that this court did comply with the Section 365 of the Criminal Procedure Code that parties do submit on the issues. The learned counsel submitted that the Application lacks merit and is an abuse of the court process and is calculated to achieve issues outside the purview of what has been placed before this court.

4. I have heard all the three learned counsels for the parties herein and noted their respective views as regards the issue of recusal by this court from handling this matter. Indeed the learned counsel for the Respondent ought to have raised the facts in support of the request for recusal by way of affidavit but I shall excuse him for that since this is a court of justice and it must hear and receive all issues whether oral or written necessary for the determination of issues placed before the court. Let me start by pointing out that this matter was first placed before my desk in chambers on the 8/09/2017 and upon perusal of the Applicant’s letter dated 30th August, 2017, I found the same appeared to raise several issues warranting the need to have all the parties concerned invited to appear before me for directions and to submit on the issues raised before the court would then proceed to exercise its orders of revision pursuant to the relevant provisions of the Criminal Procedure Code. Indeed the High Court has revisionary powers pursuant to Sections 362, 364 and 365 of the Criminal Procedure Code. In the matter at hand I directed the Deputy Registrar to fix a date for direction and to notify the parties and their learned Counsels accordingly. At the time of issuing those directions I had been guided by the provisions of Section 365 of the Criminal Procedure Code which provides as follows:-

“No party has a right to be heard either personally or by an advocate before the High court when exercising its powers of revision”

Provided that the court may, when exercising those powers, hear and party ether personally or by an Advocates and nothing in this Section shall affect Section 364(2).”

5. As far as this court is concerned, it duly exercised its powers pursuant to the said provision. It must be pointed out that at the time this court did not know of the existence of a pending Constitutional Petition number 90 of 2016involving the parties herein. The same had not been disclosed in the Applicant’s letter dated 30/08/2017. It was only after the parties and counsels appeared before me on the 28/09/2017 that this court became aware of the said petition. Indeed all the learned counsels agreed on the 28/09/2017 to file submissions and also to wrap up remaining submissions in the Petition number 90 of 2016. This court was then waiting to receive the said submissions after which it shall make a ruling on this revision. Hence the present application for recusal is quite perplexing. According to the counsel for the Respondent this court ought to have summarily dealt with the issues raised in the Applicant’s letter dated 30/08/2017 without inviting counsels to submit. The Counsel for the Respondent felt that entertaining the parties would delay the pending trial in the lower court. I must point out that this court is yet to make any orders as regards the particular case upon receiving the submissions and therefore nothing has barred the trial court from proceeding with its matters according to its diary and calendar of dates. I am unable to find anything untoward that this court has done to warrant for the recusal because it is after directing that parties be notified to appear and make submissions that the court has now come to learn of the existence of the Petition number 90 of 2016. There are no issues to do with gross misconduct, bias or unfairness directed at the court that have been disclosed by counsel for the Respondent and further no evidence has been presented to the effect that the proceedings in the trial court have been curtailed and or interrupted. If the Respondents counsel had been under the impression that the Applicant should not have filed this revision yet the issues are already catered for in the Petition number 90 of 2016, then I find that this is the right opportunity to challenge the revision sought by the Applicants. Hence I find the application for recusal has not been properly grounded. Indeed parties and counsels have duty to assist the court achieve its overriding objective of expeditious disposal of cases which is beneficial to both the parties and the Court. No prejudice has been occasioned to the parties herein.

6. In the result it is the finding of this court that the Application for recusal sought by Counsel for the Respondent is not merited. The same is rejected. Counsels are hereby directed to proceed and present their submissions in this revision as agreed on the 28th September, 2017.

It is so ordered.

Dated, signed and delivered at MACHAKOSthis 6thday of OCTOBER, 2017.

D. K. KEMEI

JUDGE

In the presence of:

Nyandieka - for Applicant

Nyaberi – for interested party

Omirera – for Respondent

C/A: Kituva