[2023] KEHC 26930 (KLR)

Steel Partners Ltd v Chege & another (Miscellaneous Application E331 of 2023) [2023] KEHC 26930 (KLR) (20 November 2023) (Ruling)

Neutral citation: [2023] KEHC 26930 (KLR)

Republic of Kenya

In the High Court at Nakuru

Miscellaneous Application E331 of 2023

SM Mohochi, J

November 20, 2023

Between

Steel Partners Ltd

Applicant

and

Hilary Wangai Chege

Accused

and

ODPP

Prosecutor

Ruling

1. This is an application by way of Letter by the Advocate for the Complainant Steel Partners Limited dated 1st September 2023, that faulted the trial magistrate order of discharge of the accused under Section 210 of the Criminal procedure Code

2. The Complainant alleges that, the accused person was solely an employee of Chan Services Limited where he had an appointment letter, a pay slip and NSSF & NHIF remittances. The said Chan Services Limited had been contracted by the complainant to offer human resource services. That it follows that the accused was terminated from his employment by Chan Services Ltd where after he forged a Letter of Recommendation dated 12th July 2016 purporting to be a genuine letter issued to him by the Complainant in order to insinuate and represent that he was an employee of the complainant.

3. That the said accused presented the said letter in evidence during an employment cause he caused to be filed at the Employment and Labour Relations Court in Nakuru serialized as Nakuru Elrc Cause No. 430 OF 2016.

4. That the accused intended to use the said letter to hoodwink the court into thinking that he was an employee of the complainant and that following his purported termination he had been issued a Letter of Recommendation by the complainant and that his termination had been sanctioned by the actions of the complainant, thereby gaining an undue advantage against the complainant in the suit.

5. That the forged letter of recommendation is/was prejudicial to the complainant's defence and therefore its legality and originality was and still is a key element of the employment cause.

6. That in this regard, the trajectory and the outcome of the criminal case against the accused was/is of great interest to the complainant who seek the intervention of the High Court to exercise its powers of revision to satisfy itself as to the correctness of the record and the terms of any orders contained herein, as made by the subordinate Court, pursuant to the provisions of Section 362 of the Criminal Procedure Code.The Complainant submit that, the Magistrate's Court fell into error in the manner in which it considered the request for adjournment by the prosecution. The Court acted in the most unjust and capricious manner as it ignored all the legal principles applicable during the consideration of an application for adjournment given the circumstances of the case, and application of the principles under the Criminal Procedure Code having acquitted the accused under Section 210 instead of Section 202 of the Criminal Procedure Code, if at all her assessment of the circumstances of the case were proper, in the first place.

7. It is akin to begin with matters law before digressing to matters fact. Your Lordship, Section 210 which the learned trial magistrate applied states as hereunder:“210. If at the close of the evidence in support of the charge and after hearing such summing up, submission or argument as the prosecutor, the accused person or his advocate may wish to put forward, it appears to the court that a case is not made out against the accused person sufficiently to require him to make a defence, the court shall dismiss the case and shall forthwith acquit him'

8. The Complainant submit that, the above section applies where the prosecution has called witnesses to testify against the accused and after the close of the prosecution case. Clearly that was not the position in the present case. A scrutiny of the ruling by honorable magistrate reveals that the Accused was acquitted for reasons that the prosecution's witnesses were not in court at the time when the matter came up for hearing.

9. In essence, the complainant was not present. That Section 202 CPC allows a court to dismiss a case for non-appearance of the complainant. The trial magistrate if at all her assessment of the circumstances of the case was to be deemed proper, ought to have discharged the accused under Section 202 of theCPCand not Section 210 of the CPC.

10. The Complainant submit that, the court was unfair and unjust in its assessment of the record to consider as ruled that the prosecution had not presented any witnesses since commencement of the suit in 2018 and that there could not be any further room for an adjournment. In this regard, Complainant highlights all Adjournments in the trial courti.29th January, 2020, the Accused sought an adjournment.ii.23rd July, 2020, the Accused person was absent, forcing the court to adjourn the matter.iii.24th February, 2021, the Accused person was absent forcing the court to adjourn the matter. The Prosecution had three (3) witnesses present in Court. One having travelled from Embu, another from Nairobi and one from Nakuru.iv.11th August, 2021, the Accused person was absent on account of illness forcing the court to adjourn the matter. The Prosecution had three (3) witnesses present in Court. One having travelled from Embu, another from Nairobi and one from Nakuru.v.18th August, 2021, the Accused person was absent on account of illness forcing the court to adjourn the matter. The Prosecution had three (3) witnesses present in Court. One having travelled from Embu, another from Nairobi and one from Nakuru.vi.22nd September, 2021, the Accused person was absent on account of illness forcing the court to adjourn the matter.vii.3rd November, 2021, the accused person was absent. The Court at this juncture noted the history of absence of the accused person. The Prosecution had one (1) witness present in court who had travelled from Embu. The court was forced to adjourn once again.viii.2nd March, 2022, the accused person through his counsel sought for an adjournment for reasons that the said counsel was attending LSK elections. Once again, the court was lenient to the accused person and an adjournment was granted.ix.21st September, 2022, the matter was adjourned for reasons that the magistrate was on transfer.x.28th September, 2022, the matter was adjourned due to the absence of the accused. His counsel on record told court that he had misled the accused in regards to the hearing date. His absence was once again arbitrarily accused despite being out on bail. The Prosecution had three (3) witnesses present in Court. One having travelled from Embu, another from Nairobi and one from Nakuru.xi.5th January, 2023, the matter was adjourned on account of absence of the prosecutor, who was bereaved. The court took judicial notice of said bereavement.xii.16th May, 2023, the prosecution did not have the police file for reasons that the Investigating Officer was on transfer, the Court granted an adjournment.xiii.30th August, 2023, the Court noted absence of the complainant and erroneously acquitted the accused under Section 210 of the CPC. The court denied the application by the prosecution to have the matter adjourned to trace the file and to inform the complainants of hearing date.

11. That by simple calculation, the accused person has occasioned a total of over nine (9) adjournments, the prosecution a total of three (3) and the court one (1) adjournment.

12. The Complainant submit that, that the criminal court's mandate does not only lie in the protection of an accused person.

13. The Complainant and the accused are equally entitled to this protection of the law. The court is the custodian of the bill of rights among other legal rights. In a criminal case, the court has a duty to protect the right of the accused and that of the complainant in equal measure in the course of administering justice.

14. The Power of High Court to call for records is provided for under Section 362 of the criminal procedure code.“The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court”.

15. Section 364 of the criminal procedure code provide for the Powers of High Court on revision as follows;(1)In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may—(a)in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 354, 357 and 358, and may enhance the sentence;(b)in the case of any other order other than an order of acquittal, alter or reverse the order.(c)in proceedings under section 203 or 296(2) of the Panel Code, the Prevention of Terrorism Act, the Narcotic Drugs and Psychotropic Substances (Control) Act, the Prevention of Organized Crimes Act, the Proceeds of Crime and Anti-Money Laundering Act, the Sexual Offences Act and the Counter-Trafficking in Persons Act, where the subordinate court has granted bail to an accused person, and the Director of Public Prosecution has indicated his intention to apply for review of the order of the court, the order of the subordinate court may be stayed for a period not exceeding fourteen days pending the filing of the application for review.(2)No order under this section shall be made to the prejudice of an accused person unless he has had an opportunity of being heard either personally or by an advocate in his own defence:Provided that this subsection shall not apply to an order made where a subordinate court has failed to pass a sentence which it was required to pass under the written law creating the offence concerned.(3)Where the sentence dealt with under this section has been passed by a subordinate court, the High Court shall not inflict a greater punishment for the offence which in the opinion of the High Court the accused has committed than might have been inflicted by the court which imposed the sentence.(4)Nothing in this section shall be deemed to authorize the High Court to convert a finding of acquittal into one of conviction.(5)When an appeal lies from a finding, sentence or order, and no appeal is brought, no proceeding by way of revision shall be entertained at the insistence of the party who could have appealed.

16. In the case of Prosecutor vs Stephen Lesinko [2018] eKLR Nyakundi J outlined the principles which will guide a court when examining the issues pertaining to section 362 of the Criminal Procedure Code as follows: -a.Where the decision is grossly erroneous;b.Where there is no compliance with the provisions of the law;c.Where the finding of fact affecting the decision is not based on evidence or it is result of misreading or non-reading of evidence on record; andd.Where the material evidence on the parties is not considered;

17. In the case ofMohamed Feisal& 19 others v Henry Kandie, Chief Inspector of Police, OCS, Ongata Rongai Police Station & 7 others; National Police Service Commission & another (Interested Party) [2018] eKLR Justice Nyakundi R while citing Keroche Industries Ltd V Kenya Revenue Authority and 5 others 2007 2 KLR the court held as follows:“One of the ingredients of the rule of law is certainty of law. Surely the most focused deprivations of individual interest in life, liberty or property must be accompanied by sufficient procedural safeguards that ensure certainty and regularity of law. This is a vision and a value recognized by our constitution and it’s an important pillar of the rule of law. Enforcing the law and maintaining public order must always be compatible with respect for the human person. Under article 73(a) and (b) of the constitution its provided that authority assigned to a state officer is a public trust to be exercised in a manner that is consistent with the purposes and objects of the constitution, demonstrates respect for the people, brings honour to the nation and dignity to the office, promotes public confidence in the integrity of the office and vests in the state office the responsibility to serve the people, rather than the power to rule them”.Further holding that, the yardstick that police officers are meant to achieve in exercising their powers under the National police service Act and the criminal procedure code. To arrest, detain or investigate must be carried out within constitutionally permissible parameters.

18. The Following Provisions of the Constitution are worthy to recall, Articles 3(2), binds every person with the obligation to respect, uphold and defend the Constitution, Article 10, enshrines the national values and principles of governance that bind all State organs, State officers, public officers and all persons whenever any of them— (a) applies or interprets this Constitution; (b) enacts, applies or interprets any law; or (c) makes or implements public policy decisions, Article 232(1) provides the values and principles of public service to include— (a) high standards of professional ethics.

19. The guiding principles on victim participation in a criminal trial and the manner and extent of the participation were established in the case of Joseph Lendrix Waswa v Republic [2020] eKLR to include;a.The applicant must be a direct victim or such victim’s legal representative in the case being tried by the Court;b.The Court should examine each case according to its special nature to determine if participation is appropriate, at the stage participation is applied for;c.The trial Judge must be satisfied that granting the victim participatory rights shall not occasion an undue delay in the proceedings;d.The victim’s presentation should be strictly limited to “the views and concerns” of the victim in the matter granted participation;e.Victim participation must not be prejudicial to or inconsistent with the rights of the accused;f.The trial Judge may allow the victim or his legal representative to pose questions to a witness or expert who is giving evidence before the Court that have not been posed by the prosecutor;g.The Judge has control over the right to ask questions and should ensure that neither the victim nor the accused are not subjected to unsuitable treatment or questions that are irrelevant to the trial;h.The trial Court should ensure that the victim or the victim’s legal representative understands that prosecutorial duties remain solely with the DPP;i.While the victim’s views and concerns may be persuasive; and no doubt in the public interest that they are acknowledged, these views and concerns are not to be equated with the public interest;j.The Court may hold proceedings in camera where necessary to protect the privacy of the victim;k.While the Court has a duty to consider the victim’s views and concerns, the Court has no obligation to follow the victim’s preference of punishment.

20. The Supreme Court equally cautioned in the case of Joseph Lendrix Waswa v Republic [2020] eKLR that, a victim cannot and does not wear the hat of a secondary prosecutor. When victims present their views and concerns in accord with section 9(2) (a) of the VPA, victims are assisting the trial Judge to obtain a clear picture of what happened (to them) and how they suffered, which the Judge may decide to take into account.

21. In the case of I P Veronica Gitahi& Another v Republic (2017) eKLR the Court described and defined the parameters for intervention by victims’ representatives under theVPAas follows:-"The Act further provides the parameters of the victim’s representative’s participation in the trial. The victim’s views and concerns may be presented in court at any stage of the proceedings as may be determined to be appropriate by the court. Those views and concerns may be presented by the victim himself or herself or by a “legal representative” acting in the victim’s behalf, at the stage of plea-bargaining, bail hearing and sentencing, as far as possible to be heard before any decision affecting him or her is taken; to be accorded legal and social services of his or her own choice, and if the victim is vulnerable, to be given these services at the State’s expense, and to make a victim impact statement at the stage of sentencing. These rights must however not be prejudicial to the rights of the accused person or be inconsistent with a fair and impartial trial. See sections 20 and 21. "

22. The task at hand was to consider the correctness, legality or propriety of the learned trial magistrate's Hon. Nyota (SRM)’s Order made on the 28th day of August, 2023 at Nakuru Criminal Case No. 1573 of 2018 R Vs. Hilary Wangai Chegeacquitting him under section 210 of the Criminal Procedure Code having denied the prosecution an adjournment.

23. This court has undertaken a review of the entire proceedings in Nakuru Criminal Case No. 1573 of 2018 R Vs. Hilary Wangai Chege noting as follows;a.The Trial magistrate did not make an explicit ruling declining the application sought.b.The Trial magistrate did not invite the Prosecution to present evidence or in the alternate to close their case;c.The trial magistrate did to refer or seek the views of the complainant;d.The decision to acquit the Accused under section 210 where no evidence had been tendered was grossly in error.

24. The Court as a vanguard of the constitution must always strive to promote and protect it which in this instance was to show sensitivity to the Victim/Complainant, seek his view before making decision(s).

25. Section 210 of the Criminal Procedure Code on acquittal cannot be made applicable where no evidence had been tendered and neither had the prosecution started or closed its case. Thus, the acquittal was highly irregular and illegal as no trial had been held and there was no examination of the evidence. An acquittal cannot therefore stand in law. In the case of Reg v Connelly [1964 AC] 1277 where the Court of Appeal in England stated:“In our judgment a judge is not entitled to refuse the trial of any indictment, be it a first or second indictment, merely because he thinks the trial ought not proceed. He may do this only in accordance with established principles. To hold otherwise involves dangers too obvious toned stating. Having said in Reg v Middlesex Quarter Sessions (Chairman) Ex parte Director of Public Prosecutions [1952] 2QB, 758, 767, that ‘the prosecution had a right to present their case,’ Lord Goddard CJ, added in Reg v London (County) Quarter Sessions, Ex parte Downes [1954]1QB. 1,6: Once an indictment is before the court the accused must be arraigned and tried thereon unless (a) on motion to quash or demurrer pleaded it is held defective in substance or form and not amended; (b) matter in bar is pleaded and the plea is tried or confirmed in favour of the accused; (c)nolle prosequi is entered by the Attorney General, which cannot be done before the indictment is found; or (d) if the indictment disclosed an offence which a particular court has no jurisdiction to try…”

26. The Director of Public prosecution represents the Victim/Complainant and is equally constitutionally bound to protect and promote the same.

27. In the upshot this court finds this Application to be of merit and the same is accordingly allowed.i.The Order made on the 30th day of August, 2023 at Nakuru Criminal Case No. 1573 of 2018 R Vs. Hilary Wangai Chege is hereby set-aside.ii.The Accused shall be expected to satisfy the Bail Bond terms previously setiii.An Order is hereby issued, directing that the matter be placed before the trial magistrate for fixing a hearing date.iv.The Prosecutor to liaise directly with the Applicant/Complainant may then have an opportunity to avail its evidence.

28. It is so Ordered.

SIGNED, DATED AND DELIVERED IN OPEN COURT AT NAKURU ON THIS 20TH NOVEMBER 2023MOHOCHI S.MJUDGE