[2022] KEHC 877 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

ANTI-CORRUPTION AND ECONOMIC CRIMES DIVISION

ACEC PETITION NO. E002 OF 2020

SOSPETER ODEKE OJAAMONG......................................1ST PETITIONER

BENARD KRADE YAITE....................................................2ND PETITIONER

LEONARD WANDA OBIMBIRA.......................................3RD PETITIONER

ALLAN EKWENY OMACHARI........................................4TH PETITIONER

SAMUEL OSEJO OMBUI...................................................5TH PETITIONER

EDNA ADHIAMBO ODOYO..............................................6TH PETITIONER

RENISH AMOLLO..............................................................7TH PETITIONER

SEBASTIAN HALLENSLEBEN.......................................8TH PETITIONER

MADAM R ENTERPRISES..............................................9TH PETITIONER

VERSUS

DIRECTOR OF PUBLIC PROSECUTIONS................1ST RESPONDENT

THE CHIEF MAGISTRATE COURT AT NAIROBI

ANTI-CORRUPTION AND ECONOMIC CRIMES

DIVISION.........................................................................2ND RESPONDENT

JUDGMENT

1. The 1st Petitioner filed the Petition dated 24th September 2020 seeking to have the trial against him and his co-accused/Petitioners in Chief Magistrate’s ACC No. 23 of 2018 declared a mistrial for alleged violation of his fundamental rights. The Petition seeks the following reliefs:

“(a) A declaration be issued that (sic) has been a fatal breach of the fundamental rights of the accused persons' right to fair hearing and fair trial and consequently declare a mistrial in the entire case against the 1st to 9th accused persons.

(b) An order be issued forthwith terminating the 1st Respondent's case against the Petitioners in Nairobi CMC ACEC Case No. 23 of 2018, and acquitting (sic) Petitioners unconditionally.

(c) Appropriate directions be issued for costs of this Petition.

(d) Such other orders be issued as befits the interests of justice.”

The Petitioner’s case

2. The 1st Petitioner’s case is that he and the 2nd to 9th Petitioners are charged with 11 counts of corruption related offences in Nairobi CM ACC No. 23 of 2018 Republic versus Sospeter Odeke Ojaamong & 8 others which matter was being heard by Hon. Ogoti, the Chief Magistrate. That the 1st Respondent herein called 20 witnesses and closed their case on 20 February 2020 whereupon by a ruling delivered on 29 May 2020 the Petitioners were all put on their defence. The 1st Petitioner claims that the 1st Respondent abandoned its constitutional duty under Article 157 (11) of the Constitution by using active threats and witness intimidation to harass the Petitioners and their witnesses with the deliberate aim of preventing their testimony in court so as to secure a conviction at all costs. According to the 1st Petitioner the intimidation arose on 22nd July 2020 when learned prosecution Counsel Taib Ali Taib, Senior Counsel, was cross-examining Mr. Jairus Angana Oriko, a defence witness, and Counsel for the 3rd accused person sought clarification from the court on how much time the prosecution needed with the said witness given that the witness had been cross-examined for 2 days and it was nearing close of business of the third day. The 1st Petitioner states that it was at that point that Mr. Taib Ali Taib, Senior Counsel, indicated that he could not be sure how much time he required as the witness was being "slippery" and then told the witness that “he was going to recommend to the investigating officers why they did not actually go for the witness (DW1). It is the 1st Petitioner’s case that the intimidation and threats to DW1 hindered and violated the right of the Petitioners to fair trial under Article 50 (2) (k) of the Constitutionto call whichever witnesses they pleased to adduce evidence in their defence; that as a result of the statement by Mr. Taib Ali Taib SC the witnesses threatened to abandon the accused persons and refused to appear to offer any testimony on their behalf causing a miscarriage of justice and that moreover, the threats and intimidation created an environment of fear and anxiety thereby taking away any possibility of fair trial for the Petitioners not considering the time taken by the Petitioners in preparing their witnesses for the said hearing

3. It is also the 1st Petitioner’s contention that prosecution Counsel abused the legal process to the detriment of the Petitioners by directing a witness to alter the contents of a document tendered in evidence in an illegal and misguided bid to mislead the court and hence secure a conviction at any cost in breach of the 1st Respondent’s defined constitutional mandate. The 1st Petitioner asserted that on 18th October 2018 during cross-examination by Counsel for the 1st Petitioner PW10, a witness from the Registrar of Companies admitted to altering evidence (P-exhibit 22) when he stated, "... I saw the error in court. The errors were rectified today. I went to Jemima. I noted the error during pre-trial with a prosecutor and the investigating officer. I was in court. I was sent to go to the office ...“ The 1st Petitioner contends that the said alteration was never explained to the court at any point before or during examination-in-chief but that it had to take cross-examination by the defence for it to be revealed.

4. The 1st Petitioner also contends that the 1st Respondent abused due process by purporting to present a witness statement that was never authored by the supposed witness; That the prosecution called PW8 (Nicodemus Mulaku) who during examination in chief testified before the court that he never visited the Ethics and Anti-Corruption Commission offices and never recorded a statement a fact which was admitted by another witness (PW19) during cross examination when he stated that he did not meet PW8 but that PW8 sent the statement to him by email after they discussed the structure of the statement in a telephone call.

5. It is also the 1st Petitioner’s case that the 1st Respondent violated Article 50 (2) (U)by concealing from the court the 1st Petitioner’s County Procurement Plans and Budgets that are relevant to this case which were well within the 1st Respondent’s custody and possession. Further that during cross examination Abraham Kemboi (PW19) and Timothy Munga Wahome (PW20), both investigating officers in this case, admitted receipt of several documents that were relevant to this case but stated that they did not supply the same to the defence as they were irrelevant to the case and they did not intend to rely on them contrary to their duty to disclose all evidence whether inculpatory or exculpatory.

6. The 1st Petitioner asserts that on 22 July 2020 the trial court failed in its constitutional and statutory duty to be a neutral arbiter and umpire by failing to address the threats and intimidation to the defence witness by prosecution Counsel resulting in a total failure of justice. The 1st Petitioner contends that despite the matter having been specifically picked up by all the defence Counsel and having raised a heated debate, the trial magistrate failed to record it in the proceedings and further failed to render himself on the issue contrary to Section 197of theCriminal Procedure Code. He further avers that the trial magistrate violated the Petitioners’ right to a fair trial when he failed to expunge fabricated evidence (P-exhibit 22) despite the vehement objections and submissions of the defence Counsel that the fabrication was a violation of Section 113 of the Penal Code and the Petitioners' right to fair hearing guaranteed under the Constitution.

7. The 1st Petitioner further avers that even after filing a formal application on 7th September 2020 urging the Court to declare a mistrial due to the gross constitutional and legal violations of the Petitioners’ rights, the Court compounded and aggravated the violation of the Petitioners' rights by summarily striking out the application without cause and without giving an opportunity for it to be served on the 1st Respondent for hearing on its merits. He contends that due to the judicial, procedural and substantive failures that took place after close of the prosecution’s case, the Petitioners could not be assured of an independent, impartial or fair trial in the case and any further proceedings would be a mockery of the rule of law and of the criminal justice process. He has therefore urged this court to order a mistrial and terminate the proceedings in the criminal case in the interest of justice.

8. In a further affidavit dated 14th October 2020 sworn in answer to the 1st Respondent’s replying affidavit the 1st Petitioner deposes that this petition is not res judicataas he was not inviting this Honourable Court to re-litigate issues that have already been determined nor was he appealing or challenging the impugned ruling of the trial court but was merely demonstrating to this Court instances of prosecutorial misconduct and questionable directives issued by the court that amounted to abuse of the legal process. In regard to the issue raised by the 1st Respondent of the admissibility of the compact disc as proof of the threats to the witness by Senior Counsel, the 1st Petitioner averred that the video recording is admissible as evidence as it captured the utterances by Mr. Taib Ali Taib SC and is connected with the statement and it formed part of the same transaction hence admissible pursuant to Section 6 of the Evidence Act.

1st Respondent’s case

9. The DPP opposed the application through Grounds of Opposition dated 19th April 2021, a replying affidavit dated 8th October 2020 and a further replying affidavit dated 19th April 2021 both sworn by Grace Murungi Ag. Deputy Director of Public Prosecutions. In the Grounds of Opposition it is stated that:- the Petitioners have been charged with a known offence in law, that the issues raised in the Petition are res judicata and that the orders sought are unattainable and therefore the petition is frivolous and is an abuse of the court process intended to delay or defeat the ends of justice. In the replying affidavit and further replying affidavit of Ms. Murungi she avers that this petition is res judicata as the Petitioner had previously litigated the same matters before the trial court and that the Court held that it lacked jurisdiction to determine violations of Constitutional Rights under the Bill of Rights. Further that the prosecution appealed against the ruling of the learned magistrate dated 4th December 2018 barring the use of the evidence gathered during the pendency of the case in HC ACEC Rev. No. 20 of 2018 and in its ruling the High Court agreed with the learned magistrate and stated that the prosecution’s investigations in the alleged forgery of the documents would form the basis of a separate case but that the trial court reserved the right to admit additional evidence at any stage of the trial. Grace Murungi also deposed that the Petitioners also filed an application to expunge Prosecution Exhibits 21 (a), 21(b), 22 and 23(a) and that in its ruling on 22nd October 2018 the trial court admitted Exhibit 22. The 1st Respondent contends that the Petitioners moved the High Court on the issue of exhibits and the court rendered a ruling and hence the rulings delivered by the trial Court and the High Court can only be challenged by way of an appeal and or review or through the process provided under the law but cannot be addressed through a constitutional petition. Ms Murungi contends that the net effect of allowing such rulings to be the subject of this Petition is to ask this court to sit on appeal on its own rulings and or to sit on appeal on the decision of the trial court before it has concluded the trial and rendered a judgment. Ms. Murungi disputed that the prosecution directed PW8 to alter the contents of documentary evidence and averred that in his examination in chief PW1O pointed out that the alteration to Exhibit 22 was only on the month which was a typographical error that did not affect the contents of the exhibit. She contended that moreover the issue was canvassed before the trial court and a ruling on the same was rendered. She further contended that the admissibility of documents was also addressed in HC ACEC Appeal No. 17 of 2019, Sospeter Ojamong and Others where the court struck out the appeal and held that the appeal by the Petitioner was improperly before the court as the appellant had no right of appeal on an interlocutory application relating to admissibility or otherwise of documents.

10. Ms. Murungi denied that that the prosecution violated Article 50 (2) (j) and also refuted that the prosecution concealed documentary or any other evidence to the detriment of the accused persons and more specifically Procurement Plans and Budgets relevant to this case. She denied that during cross-examination PW19and PW20admitted to receiving relevant documents but chose not to disclose them to the defence at the behest of the prosecution Counsel. She averred that the 1st Petitioner’s apprehension is unfounded as the trial court’s finding on a case to answer was based on the totality of the evidence on record. She stated that Article 50(2)(l) binds the 1st Respondent to disclose to the defence in advance the evidence the prosecution intends to rely on and to give reasonable access to that evidence which the 1st Respondent endeavoured to do.

11. It is also the 1st respondent’s contention that on 22nd July 2020 the entire interjection and interruption of the cross-examination of DW2 was off the record and came up when Mr. Wangalwa, Learned Counsel for the 3rd accused asked how much time the cross examination would take. The 1st Respondent contends that there was no obligation in law for the Chief Magistrate to record such an altercation. On the comments made by Mr. Taib Ali Taib, SC, Ms. Murungi asserted that they were not threats nor did they amount to contempt in the face of the court as the 1st Respondent has a legal duty to remind a witness of the duty to be truthful when giving sworn evidence. Further, that the comments by Mr. Taib Ali Taib, SC, were necessary to warn the witness against committing perjury or uttering false documents, to point out the consequences thereof and to explain to the parties that DW2 had turned out to be a more important witness than initially thought and it was difficult to assess the time required to finalize the cross-examination of the witness.

12. Ms. Murungi averred that the defence did not prove that a key defence witness, one Moses Osia, failed to come to court due to the alleged threats; That, the prosecution took issue with the Petitioner’s indication that the witness was in court when DW2, (Jairus Ang’ana Oriko) was testifying as it is the practice that other witnesses in a criminal trial should not be seated in court while the others are giving evidence and there is therefore no basis to state that a key witness felt threatened and refused to attend court to testify.

13. Ms. Murungi averred that there is no evidence that the Petitioners’ rights to fair hearing under Articles 25 and 50 of the Constitution have been violated and there is no misconduct at all by the prosecution in this case nor has any procedural error occurred in the Criminal proceedings to warrant the declaration of a mistrial in ACC No 23 of 2018.

Submissions

14. The petition was canvassed through written submissions which learned Counsel highlighted before me on 23rd November 2021.

Petitioner’s submissions

15. Mr. Ligunya, learned Counsel for the Petitioner, reiterated the Petitioners’ case and then framed two issues for determination as follows: -

(a)Whether a mistrial arose from repeated and grave violation of the Petitioners' fundamental constitutional rights in the subordinate Court; and

(b)Whether this Court should terminate the criminal proceedings against the Petitioners due to the aforesaid mistrial.

16. On the first issue Mr. Ligunya relied on the definition of what constitutes a mistrial in various dictionaries including Black's Law Dictionary 9th Edition which defines a mistrial as:-

“ A trial that the judge brings to an end without a determination on the merits, because of a procedural error or serious misconduct occurring during the proceedings. A trial that ends inconclusively because the jury cannot agree on a verdict.”

Counsel further placed reliance on the cases of Kitsao v Republic [2007] 1 EA 157 (CAK), Mukulu v Republic [2005] 1 EA 297, Njenga & Another v Republic [2006] 1 KLR 17and that case ofMatsiko v Uganda [ 1999] 1 EA 184 where the courts definition of a mistrial included the violation of an accused person’s constitutional rights during a trial. Counsel contended that the Petitioners in the present case suffered repeated and irreparable violation of their fundamental rights devastating any possibility of a fair hearing hence causing a miscarriage of justice.

17. Mr. Ligunya submitted that the Petitioners’ rights under Article 50(2) of the Constitution as read with Section 211(1)of the Criminal Procedure Code to adduce and challenge evidence directly or through witnesses was violated by unchecked witness intimidation by the 1st Respondent’s Counsel. Mr. Ligunya stated that prosecution Counsel, Mr. Taib Ali Taib SC, threatened the 1st accused person's witness while the witness was still on his feet in the witness stand. Counsel stated that as a result Mr. Ang'ana Oriko was mortified and was fearful of ever returning to court to give testimony on behalf of the Petitioners as he is apprehensive that the state criminal investigative machinery may be deployed to interfere with his current employment with Busia County Government. Counsel further contended that one other key witness for the Petitioners, a Mr. Moses Osia, changed his mind and abandoned the Petitioners and is reluctant to go to court or to offer any testimony on behalf of any of the petitioners due to great fear of victimisation which is compounded by the fact that he is an employee of Busia County Government.

18. Mr. Ligunya submitted that in weighing the words used by prosecution Counsel, this court ought to look at the adverse effect of the threat or misconduct on the defence case, fairness of the trial and the final verdict and that the motive of the prosecution Counsel or the context in which the words were uttered is irrelevant. Counsel cited the American case of McGrier v United States, 597 A.2d 36, 40 (D.C. 1991).

19. Counsel further submitted that the prosecution’s threat was not empty rhetoric and stated that it vitiated any fairness in the criminal trial and interfered with the free choice of the witnesses to testify on behalf of the defence which is inexcusable and a violation of the right to fair hearing. On this Counsel relied on the United States cases of United States v Vavages, 151 F.3d 1185 (9th Cir. 1998) and the case of re Martin, 744 P.2d 374 (Cal. 1987) where the Court enforced similar provisions espoused in the Sixth Amendment to the United States Constitution and held that:

“a criminal defendant has the right 'to have compulsory process for obtaining witnesses in his favour'... just as the accused person has the right to confront the prosecution's witness for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defence. This right is a fundamental element of due process of law...few rights are more fundamental than that of an accused to present witnesses in his own defence ... a defendant's constitutional right is violated when the government interferes with the exercise of his right to present witnesses on his own behalf Government interference violate of a defendant's right includes, of course, intimidation of defence witnesses by prosecution.”

20. Leaned Counsel for the Petitioner also cited the American case of States v Golding, 168 F.3d 800 (4th Cir. 1999)where the Court held that:

“The authorities are uniform that threatening a witness with prosecution...is a violation of the Sixth Amendment right of a defendant to obtain and present witnesses in his favour.”

21. On admissibility of the video recording annexed as SOO-2, Counsel submitted that the 1st Respondent expressly admitted in paragraph 29 of its replying affidavit that Mr. Taib Ali Taib, SC indeed uttered this statement and that on that express admission alone the video Recording (S00-2) is admissible in court as evidence that the statement was in fact made. Further that the video recording is relevant to this case because it captured the utterance by Mr. Taib Ali Taib, SC and its contents are so connected with the uttered statement itself that they form part of the same transaction, hence admissible under Section 6 of the Evidence Act. Counsel submitted that the video recording is duly authenticated by the relevant certificate pursuant to Section 106Bof theEvidence Act and that the 1st Respondent has not disputed its contents.

22. Mr. Ligunya further submitted that 1st Respondent failed in its obligation under Article 157 (11) of the Constitution and mocked, abused and perverted the legal process with a series of violations by presenting a forged witness statement that was not authored by the supposed witness (PW8) leading to false testimony in violation of Article 50 (4) of the Constitution. Counsel further stated that the prosecution in a bid to secure a conviction at all costs deliberately concealed documents relevant to the case in clear violation of the fundamental rights of the Petitioners under Articles 50 (2) (j) and (k) of the Constitution crippling their right to natural justice. In support of this submission Counsel relied on the case of Thomas Patrick Gilbert Cholmondeley v Republic [2008] eKLR.

23. Counsel also submitted that the prosecution deliberately tampered with and fabricated documents and exhibits, which they presented to court to mislead the trial court hence destroying the credibility of the criminal trial and mocking the Petitioners’ fundamental right to fair hearing under Article 50(1)of theConstitution. Counsel submitted that there was failure of justice when Ethics & Anti-Corruption Commission officers purported to re-investigate the case during the pendency of the trial. Counsel contended that the above illustrations confirm the deliberate actions by the 1st Respondent to subvert the cause of justice against the Petitioners hence destroying the legality and constitutionality of the entire criminal trial. Counsel submitted that the Petitioners suffered mistrial at the hands of the subordinate court as it failed to redress or reprimand the prosecution’s wanton transgressions and violations of the petitioners’ fundamental rights to fair hearing. Counsel stated that the trial court abdicated its duty to keep an accurate record of judicial proceedings as provided in Section 197 of the Criminal Procedure Code when it failed to record the threats made to the 1st Petitioner’s witness; That defence Counsel twice requested that the threats be recorded and the court to substantively address the matter but it failed to do so. Counsel asserted that the court’s obligation under Section 197of theCriminal Procedure Code was mandatory and that the trial court did not have discretion to choose whether or not to record and that its failure to record the proceedings led to incomplete and inaccurate court proceedings leaving the video recording (SOO-2) as the sole record of the threat. Counsel cited the case of Maurice Mutembei Kambathuki v Republic [2011] eKLRwhere the court quashed a conviction and sentence for failure to keep an accurate record of proceedings as provided in Section 197 aforesaid. Mr. Ligunya also contended that the trial Court was complicit to the threat to the witness by failing to protect the witness or to ask prosecution Counsel to retract and withdraw its scandalous threat thereby sabotaging the integrity of the trial. Counsel argued that a witness who comes to testify is a witness for the court and should be afforded unlimited leeway to give full testimony so as to shed light on the issues in contention. Counsel argued that the right to fair hearing under Article 50 (2) (k) of the Constitution is defeated and lost where the relevant witness is coerced into either colouring or suppressing his testimony and evidence, is forced to abandon the case and refuses to testify because he is threatened by the adverse party. Counsel argued that evidence obtained in a manner that violates any fundamental freedom under the Bill of Rights should be excluded if its admission renders the trial unfair. He cited the case of George Ngodhe Juma, Peter Okoth Alingo, Susan Muthoni Nyoike v Attorney General [2003] eKLRand reiterated the submission that the court caused a miscarriage of justice when it failed to restore balance to the litigants­ by the twin principles of proportionality and equality of arms in litigation to stop the arbitrary threats by prosecution Counsel as held by the court in the case of Suleimanv Amboseli Resort Limited [2004] 2 KLR 589.

24. Counsel also submitted that the trial court showed complicity and bias against the Petitioners herein by failing to expunge evidently fabricated evidence. That once the witness (PW8) admitted the alteration of the exhibit the trial court could not purport to admit it as part of the trial record unless it was complicit in some extraneous arrangement to deliberately suppress the Petitioners' right to fair trial under Article 50 (4) of the Constitution and Section 113 of the Penal Code. Counsel submitted that this resulted in a mistrial.

25. On whether the criminal trial should be terminated Counsel submitted that the mistakes that culminated in the mistrial were caused by both the prosecution and the trial court and that the illegalities were so grave as to amount to a violation of the Petitioners’ fundamental right to a fair hearing to such a degree as would constitute a miscarriage of justice. Counsel contended that the only lawful recourse was to terminate the proceedings. Counsel placed reliance on the case of Zedekiah Ojuondo Manyala v Republic [2003]eKLR cited with approval by the Court of Appeal in the case of Muiruri v Republic [2003]eKLR. Counsel stated that should this court allow this petition it would be unjust if the criminal proceedings were to be ordered to start de novoas that would pave the way for systematic abuse of the trial process by the prosecution which would be able to re-strategize their case the petitioners having disclosed their defence strategy. Further, that restarting the proceedings would prolong the matter resulting in violation of the Petitioners’ right to an expeditious trial. Counsel prayed that there be a cessation of any further prosecution as prayed in the petition.

1st respondent’s submissions.

26. The 1st respondent’s written submissions (undated) were highlighted by Ms. Murungi and Ms. Mwangi who framed six issues for determination as follows:

(a)Whether the petition is res judicata

(b)Whether the words uttered by Mr. Taib Ali SC amounted to witness intimidation

(c)Whether the Petitioners’ fundamental rights under the Constitution were violated?

(d)Whether the Petitioners are entitled to an order of mistrial?

(e)Whether the Petitioners are entitled to the reliefs sought?

(f)Whether the video recording is admissible?

27. On the issue of res judicata, learned Counsel for the 1st Respondent submitted that this court has no jurisdiction to hear and determine this petition as the same issues raised herein were determined by this court in HC ACEC Revision No. 20 of 2018; HCACEC No. 5 of 2019; HC Revision 17 of 2019and by the trial court in ACC No 23 of 2018all of which dealt with inter alia admissibility and alteration of documents. Counsel for the 1st Respondent contended that the Petitioners did not appeal the decisions and this petition was therefore brought in bad faith and is an abuse of the court process. That moreover the Petitioners are seeking to reopen matters that have already been determined which is tantamount to asking this court to sit on appeal on a decision of a court of concurrent decision.

28. On whether the words spoken by Senior Counsel Taib Ali Taib amounted to witness intimidation, Counsel submitted that the words were observations made during the cross-examination of the witness and were intended to be a warning against the witness perjuring himself. Counsel relied on the case of the United States of Appeals Fifth Circuit, U.S v. Bieganowski,where while considering a warning issued by the United States Attorney, to the effect that the government was considering charging Howard with misprision of a felony and perjury, the court stated:

“…………the prosecution comments regarding perjury did not amount to a substantial interference. The prosecution did more than advice Howard that she could be prosecuted if she perjured herself in her testimony. On the contrary the prosecutor is always entitled to attempt to avert perjury and to punish criminal conduct. The government told the witness that they had a duty to testify truthfully. The procedure, however even if carried out in a caustic manner is no cause to dismiss the indictment against the defendant."

29. On whether the Petitioners’ rights to fair trial were violated, Counsel submitted that where a party alleges a breach of fundamental rights and freedoms, he or she must state and identify the rights violated with precision and must demonstrate how the same were violated as held in the case of Anarita Karimi Njeru vs the Republic (1976-1980) KLR 1272 and in the case of Matiba V Ag [1990] KLR 666. Counsel submitted that he who alleges must prove their claim and the claim must be propounded on an evidentiary foundation as was held in the case of Leonard Otieno v Airtel Kenya Limited [2018] eKLR.Counsel stated that the Petitioners have not shown that their rights under Article 25 and 50 of the Constitution were violated. Counsel asserted that the 1st Respondent has always observed the law while prosecuting the Petitioners. Counsel further asserted that the words uttered by Mr. Taib Ali SC did not amount to a threat or intimidation of the witness and that the Petitioners failed to demonstrate the allegation that Moses Osia refused to attend court as a result of those remarks.

30. On the fourth issue, Counsel submitted that a mistrial could only arise when there is a procedural defect or misconduct by the judicial officer that will affect the accused’s right to fair hearing. Counsel cited the case of David Mwangi Njoroge v Republic (2015) eKLR, the case of Muiruri Vs Republic (2003), KLR 552, Mangi Vs Republic (1983) KLRand the case ofFaehalimaji Vs Republic (1966)EA, 343to support their submission. Counsel contended that there is no evidence to prove the remarks attributed to Mr. Taib Ali Taib, SC. Further that the remarks did not amount to violation of the constitutional rights of the accused persons. Counsel argued that moreover the alleged threats were against one defence witness and the other witnesses were yet to testify and therefore the petitioners could not allege that the other witnesses were threatened as well. Counsel stated that the onus lies on the Petitioners to demonstrate to this court how other defence witnesses felt intimidated by the statement which was made off the record. Counsel also raised the issue of the DPP’s Constitutional mandate to prosecute and the doctrine of separation of powers and submitted that it would be a usurpation of that power for this court to stop the prosecution of the Petitioners.

31. On the compact disc intended to be produced by the Petitioners as evidence in this petition Counsel submitted that the 1st Respondent takes issue with the manner it was recorded and stored. Counsel submitted that the compact disc does not comply with Sections 65, 78A and 106B of the Evidence Act and urged this court to ignore it in considering this petition.

Analysis and Determination

32. I have carefully considered the petition, the supporting and replying affidavits, the annexures thereto, the rival submissions of learned Counsel for the parties, the cases cited thereat, the record of the lower court and the law. In my view the issues for determination are:

(a)Whether this petition is res judicata

(b)Whether the video evidence (SOO-2) is admissible.

(c)Whether the rights of the Petitioners to fair trial were violated by the remarks attributed to prosecution Counsel Taib Ali Taib SC and;

(d)Whether this court should declare the case before the trial court a mistrial

Whether the petition is res judicata

33. The test for considering whether a case is res judicata is found in Section 7 of the Civil Procedure Act,which states:-

“No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.”

34. The doctrine of res judicatahas been expounded in a long line of cases. In Accredo AG & 3 others v Steffano Uccelli & another [2019] eKLR the Court of Appeal stated that:

“29. The doctrine of res-judicata is founded on public policy and is aimed at achieving two objectives namely, that there must be finality to litigation and that an individual should not be harassed twice with the same account of litigation…….”

35. In the case of IndependentElectoral & Boundaries Commission v Maina Kiai & 5 Others [2017] eKLRthe same Court pronounced itself as follows in regard to the same issue:-

“Thus, for the bar of res judicata to be effectively raised and upheld on account of a former suit, the following elements must all be satisfied, as they are rendered not in disjunctive, but conjunctive terms;

a) The suit or issue was directly and substantially in issue in the former suit.

b) That former suit was between the same parties or parties under whom they or any of them claim.

c) Those parties were litigating under the same title.

d) The issue was heard and finally determined in the former suit.

e) The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.”

36. In this petition the 1st Respondent’s contention is that the issues raised in regard to the admissibility of evidence, re-investigation of the case while the trial was ongoing and the disclosure of evidence to the defence are all issues that had been litigated and had been determined by the trial court and the High Court and that the Petitioners had not filed an appeal from those decisions but was trying to re-litigate the same issues through this petition. On their part the Petitioners submitted that they had not raised the issues previously and therefore the doctrine of res judicatadoes not apply. In the case of E.T.V v Attorney General & Another (2012) eKLRMajanja J stated:-

“The courts must be vigilant to guard against litigants evading the doctrine of res judicata by introducing new causes of action so as to seek the same remedy before the court. The test is whether the plaintiff in the second suit is trying to bring before the court in another way and in a form a new cause of action, which has been resolved by a court of competent jurisdiction. ”

37. I have had ample opportunity to peruse the entire record of this court and of the trial court and my finding is that the issue of the production of the exhibits and in particular exhibit 22, the issue of non-disclosure of the Procurement Plans and Budgets to the defence, the alleged fabrication of the witness statement of PW8 and the investigations that were instituted as the trial was ongoing are all issues that were litigated before Judges in this court and rulings were rendered. While I do not ascribe to the position that an issue litigated between the same parties in a trial court becomes res judicata in a higher court as in my view a party aggrieved by a decision of the lower court has an undoubted right of appeal, revision or review to a higher court, I find that the same issues having been litigated before Judges sitting in this very court in HCACEC Rev. No. 20 of 2018,andHC Revision No. 17 of 2019 this court cannot make a determination on the same. The issues raised here are the same as those litigated in the aforestated cases, the parties were the same and those courts were competent to determine the issues and therefore res judicata applies.

38. In HCACEC Rev. No. 20 of 2018 – Republic v Sospeter Odeke Ojaamong and 8 others [2019] eKLRthe 1st Respondent herein moved this court seeking a revision of an order of the trial court which rejected the prosecution’s application to adduce evidence gathered in respect of the intended defence exhibits which had been marked for identification during the prosecution’s case. Among those documents were certain Revised Budget Estimates and Reports. The issue of the production of those exhibits was conclusively determined by Onyiego J in a ruling delivered on 9th January 2019 and it would be improper for this court to make a determination on the production of those exhibits other than in an appeal. It is also clear from paragraph 33 of that ruling that the non-disclosure of evidence complained of in this petition was properly dealt with in the trial court. According to the judge the prosecution disputed that they did not have the documents which they are accused of failing to disclose whereupon the documents in question were obtained and introduced in evidence by the defence during cross examination. How on earth was the prosecution expected to disclose evidence that was not in their possession and how can the Petitioners claim to have been prejudiced if they were able to get the documents themselves?

39. The issue of admissibility of the exhibits more so exhibit 22 was also litigated before Mumbi J, as she then was, in Sospeter Odeke Ojaamong v Republic 8 others [2020] eKLR and a ruling rendered on 15th April 2020 so again it would be unprocedural and improper for this court to re-open that issue as this court cannot sit on appeal against the decision of a court of concurrent jurisdiction. This court must pay deference to the decisions of the judges who decided the applications by refraining to make a determination on the same. Moreover, determining the issues would mean that I have already pronounced myself on any issues of admissibility and disclosure of evidence as would come before me on appeal upon determination of the trial. Issues of merit in a criminal trial can only be brought to this court on appeal but not by way of a constitutional petition.

40. The other issues for determination are whether the video “SOO-2” annexed to the 1st Petitioner’s supporting affidavit sworn on 24th September, 2020 is admissible and whether the remarks attributed to Mr. Taib Ali Taib SC were a violation of the Petitioners’ right to fair trial and whether therefore this court should declare the case against them a mistrial.

Whether the video evidence (SOO-2) is admissible

41. On the admissibility of the video evidence the prosecution contends that it does not comply with Sections 65 and 106Bof theEvidence Act as it does not have the requisite certificate. The Petitioners on their part aver that they attached a certificate as required by the Evidence Act. Counsel for the Petitioners submitted that the purpose of the video was to prove that Leaned Prosecution Counsel Taib Ali Taib SC had threated and intimidated a defence witness. However, it is my finding that the 1st Respondent admitted at paragraph 29 of its affidavit dated 8th October, 2020, that the remarks in contention were in fact made and it is not necessary therefore for this court to make a determination on the admissibility of the compact disc whose only purpose was to show Mr. Taib Ali Taib SC making the remarks. In my view a fact which is admitted does not require proof. Any doubt as to whether the remarks are admitted to have been made is allayed by Paragraph 29 of the Replying Affidavit where Ms Grace Murungi deposes:-

“29. THAT in further response to paragraph 17, I am aware of my own knowledge and have been informed by lead Counsel Taib Ali Taib, which information I verily believe to be true, that the words allegedly uttered by the lead prosecutor Mr. Taib Ali Taib “in fact after observing the witness, I am going to recommend to the investigating officers why they didn’t actually go for this guy.” were uttered in the following context:-

(h) Senior Counsel Taib was indicating that he would recommend to the investigating officers to look into the evidence to sasses if we can hold him responsible for perjury and the production of false documents.

i) That the words pronounced by Senior Counsel were said after observing the demeanor of the witness and the responses he had given to questions put to him in cross examination.

j) That all words pronounced by Senior Counsel were said in light of the move by the defence to disrupt and bring to a halt the successful cross-examination that DW2 was being subjected to and which they sought, successfully, to bring to an end and which they now seek to bury permanently, as they have no credible defence to the accusations levelled against them in the trial court.

30. THAT in response to Paragraph 18, it is denied that the prosecution intimidated DW2, Jairus Ang’ana Oriko and the record will show that he has never at any time been subjected to any intimidation or threats. Rather, the works spoken by spoken by Senior Counsel Taib were meant to stress the importance of testifying truthfully as he had opted to give sworn evidence.”

42. The issue of the certificate then becomes immaterial in the face of the express admission by Counsel for the 1st Respondent and the issue for determination is whether the said utterances amounted to a threat and intimidation of the witnesses and whether as a result the Petitioners' right to fair trial was violated and the effect of the alleged complicity of the trial court in omitting to record the exchange that occurred between counsel for the parties following those utterances.

43. The case of Anarita Karimi Njeru vs Republic [1976-80] KLR 1272 settled the principle that a person who alleges a violation of his constitutional rights and fundamental freedoms must plead such violation with a degree of precision. This principle was reiterated in the case of Mumo Matemo v Trusted Society of Human Rights Alliance [2013] eKLR where the court stated:

“The principle in Anarita Karimi Njeru (supra) underscores the importance of defining the dispute to be decided by the court. In our view, it is a misconception to claim as it has been in recent times with increased frequency that compliance with rules of procedure is antithetical to Article 159 of the constitution and the overriding objective principle under section 1A and 1B of the civil procedure Act (Cap 21) and Section 3A and 3B of the appellate Jurisdiction Act Cap 9.

Procedure is also a hand maiden of just determination of cases. Cases cannot be dealt with justly unless the parties and the court know the issues in controversy. Pleadings assist in that regard and are a tenet of substantive justice as they give fair notice to the other party. The principle in Anarita Karimi Njeru (Supra) that established the rule that requires reasonable precision in framing of issues in constitutional petitions is an extract of this principle”.

44. It is my finding that in the present case the Petitioners have pleaded and framed the rights which they allege were violated with precision. It is their contention that the utterances by lead prosecution Counsel amounted to a threat to their witnesses as a result of which the witnesses they had lined up to testify in their defence felt threatened and were reluctant to do so. They also contend that by not recording the heated exchange that took place between Counsel for the parties as a result of those utterances even after being nudged to do so by Counsel for the Petitioners, the trial court was complicit and hence biased against their clients. The Petitioners herein have therefore complied with the principle in the Anarita Karimi case. While it is noted that the trial court did not record those utterances it is admitted that they were made and it is important therefore to consider their effect on the right of the Petitioners to call and adduce evidence in their defence. It is evident that the Petitioners attempted to raise the issue before the trial court but because they asked that court to declare a mistrial based on alleged violation of rights the court correctly declined to do so since it does not have the requisite jurisdiction.

45. In asserting that the utterances by Mr. Taib Ali Taib SC amounted to a threat or intimidation to his witness and hence is a violation of his right under Article 50 (2)(k) of the Constitution. The 1st Petitioner relied on the case of re Martin (supra)where the court stated:-

“Under the Sixth Amendment to the United States Constitution, a criminal defendant has the right 'to have compulsory process for obtaining witnesses in his favour'. The Defendant must have meaningful opportunity, at least as advantageous as that possessed by the prosecution, to establish the essential elements of this case .... just as the accused person has the right to confront the prosecution's witness for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defence. This right is a fundamental element of due process of law ... few rights are more fundamental than that of an accused to present witnesses in his own defence ... a defendant's constitutional right is violated when the government interferes with the exercise of his right to present witnesses on his own behalf Government interference violative of a defendant's right includes, of course, intimidation of defence witnesses by prosecution.

The forms that such prosecutorial misconduct may take are many and varied. They include, for example, statements to defence witnesses to the effect that they would be prosecuted for any crimes they reveal or commit in the course of their testimony ... they also include statements to defence witnesses warning they would suffer untoward consequences in other cases if they were to testify on behalf of the defense. Finally, they include arresting a defence witness before he or other defence witnesses have given their testimony.”

46. In that case the court was categorical that a defendant must prove the following:-

“(5) In order to establish a violation of his constitutional compulsory-process right, a defendant must demonstrate misconduct. To do so, he is not required to show that the governmental agent involved acted in bad faith or with improper motives...Rather, he need show only that the agent engaged in activity that was wholly unnecessary to the proper performance of his duties and of such a character as "to transform [a defense witness] from a willing witness to one who would refuse to testify....

To establish a violation, the defendant must also demonstrate interference, i.e., a causal link between the misconduct and his inability to present witnesses on his own behalf.

To do so, he is not required to prove that the conduct under challenge was the "direct or exclusive" cause...Rather, he need only show that the conduct was a substantial cause...The misconduct in question may be deemed a substantial cause when, for example, it carries significant coercive force...[arrest]) and is soon followed by the witness's refusal to testify (People v. Warren, supra, 161 Cal. App.3d at p. 974).

32 Finally, the defendant must also demonstrate "materiality." To carry his burden under federal law, "he must at least make some plausible showing of how [the] testimony [of the witness] would have been both material and favourable to his defense." ...Under California law he must show at least a reasonable possibility that the witness could have given testimony that would have been both material and favourable.” (Underlining mine)

47. I have considered the utterances by Mr. Taib Ali Taib SC and my finding is that considering the context in which they were made it cannot be imputed that the same constituted a threat or intimidation of the witness (DW1) or any other witness for that matter. In my view Counsel was merely reminding the witness that he had a duty to speak the truth in the case. Those utterances are similar to those that were in issue in the case of US v Bieganowski, United States Court of Appeals, Fifth circuit where the Appellants alleged that the government engaged in prosecutorial misconduct with respect to Linda Howard, an expert witness for the defence and moved for a mistrial on the grounds of prosecutorial misconduct. The impugned comments included a warning issued by the prosecutor to Counsel for the appellant to the effect that the Government was considering charging Howard with misprision of a felony and perjury. The court declined to allow that Ground of Appeal and held: -

“It is equally clear that the prosecution's comments regarding perjury did not amount to a substantial interference.   The prosecution did no more than to advise Howard that she could be prosecuted if she perjured herself in her testimony by stating she had previously worked for the FBI, a matter which was, at most, collateral to the subject matter of her intended testimony.   There is no substantial interference in such a statement.   On the contrary “[a] prosecutor is always entitled to attempt to avert perjury and to punish criminal conduct.”  Viera, 839 F.2d at 1115;  United States v. Thompson, 130 F.3d 676, 687 (5th Cir.1997) (“[T]he government told the witnesses that they had to testify truthfully?  That procedure, however, even if carried out in a caustic manner, is no cause to dismiss the indictment against the defendants.” (quoting United States v. Hayward, 6 F.3d 1241, 1257 (7th Cir.1993))).   Accordingly, we find that the prosecution's comments did not amount to substantial interference and we reject the claim of Diaz and Bieganowski that their Fifth or Sixth Amendment rights were, in any way, violated.”

48. It is my finding that the remarks by Mr. Taib Ali Taib were very similar to those in the Bieganowski case. Moreover, even were the utterances a threat it can be inferred from the cases cited by Counsel that for the threat and intimidation to be considered a violation it must have occurred before the witness testified. In this case the utterances were made during cross examination after the witness had testified in favour of the 1st Petitioner. Despite those utterances DW2 was not moved and he proceeded under cross-examination by Counsel for the 1st Respondent and there is nothing on the record from which it can be inferred that he was afraid of answering questions or that he was hesitant to do so. It is also instructive that this witness (DW1) does not on his part, allege to have felt threatened or intimidated. The 1st Petitioner contended that due to the statement by Mr. Ali Taib SC one of their witnesses, Mark Osia refused to attend court to testify on his behalf. This is rather perplexing given that a witness ought not to sit in court when the case is going on and Mark Osia could not therefore have properly heard the contentious utterances by Senior Counsel. Moreover, there is no proof of the allegation that the witness felt intimidated and refused to attend court to testify. Counsel for the Petitioner very well knows that a statement from the bar so to speak cannot suffice and the witness himself ought to have filed an affidavit deposing to that allegation. Further, the witness (DW1) completed his testimony by being re-examined by defence Counsel and there is no evidence therefore no prejudice occasioned to the 1st Petitioner. It would have been of concern to this court if the witness had for instance broken down and remained mute to any further examination. It is my finding that the allegation of violation of the right to fair trial on the ground of threats and intimidation to the witnesses was therefore not proved on a balance of probabilities.

49. In regard to the submission that by omitting to record the utterances and the exchange between Counsel the trial magistrate was complicit this court finds that the same can only be determined in light of Section 197 of the Criminal Procedure Code which dictates the manner in which a trial magistrate should record the proceedings. That section states: -

“(1) In trials by or before a magistrate, the evidence of the witnesses shall be recorded in the following manner—

a. The evidence of each witness shall be taken down in writing or on a typewriter in the language of the court by the magistrate, or in his presence and hearing and under his personal direction and superintendence, and shall be signed by the magistrate, and shall form part of the record;

b. Such evidence shall not ordinarily be taken down in the form of question and answer, but in the form of a narrative:

Provided that the magistrate may take down or cause to be taken down any particular question and answer.”

50. The law is therefore very clear on the manner in which a trial magistrate should record proceedings and there is no requirement in the Criminal Procedure Code for recording of exchanges or altercations between parties and/or their Counsel. Neither is the recording of such exchanges provided for in Parts III, IV and V of the Evidence Act which stipulate the manner in which evidence in a case should be taken. If judicial officers were required to record each and every statement, question or remark made by parties and their advocates which are not in issue in the case the record would be bloated with a lot of unnecessary information and that would not be proper use of judicial time. It is my finding therefore that the submission by the petitioner that the trial court was for that reason complicit and demonstrably biased is farfetched and does not hold water.

51. The upshot is that I find no evidence upon which I can order a mistrial or grant any of the orders sought by the Petitioners and this petition is dismissed with costs. The stay of proceedings in the criminal case against the petitioners is lifted and it is hereby ordered that the lower court shall be returned to the trial court forthwith for the trial to continue. It is so ordered.

SIGNED, DATED AND DELIVERED VIRTUALLY THIS 17TH DAY OF MARCH, 2022

E.N. MAINA

JUDGE