[2017] KEHC 1537 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NANYUKI

MISC CRIMINAL APPLICATION NO. 59 OF 2017

STEPHEN GIKONYO KIRUGUMI.....................................APPLICANT

VERSUS

WILLIAM ONWONGA....................................................RESPONDENT

DIRECTOR OF PUBLIC PROSECUTION.........INTERESTED PARTY

JUDGMENT

1. STEPHEN GIKONYO KIRUGUMI (Stephen) was a purchaser of a property title no. LAIKIPIA /NANYUKI MARURA BLOCK III/322 (Sweet waters). The seller was Stanley Muhindi Wandeto (Stanley). Both were represented in that transaction by an advocate Mr. William Onwonga (William). That transaction was not completed because it transpired at some point before registration of the transfer that the title document was forgery. As a consequence both Stanley and William were charged with criminal offences relating to the alleged forged title document before the Chief Magistrate’s Court in Nanyuki. Stanley was arraigned before the Chief Magistrate’s Court Nanyuki under a criminal file number 1179 of 2016 while William was charged under criminal file number 1358 of 2016.

2. William brought before this court a Miscellaneous Application No. 78 of 2016 whereby he sought the prayer for the transfer of his criminal case no. 1358 of 2016 from the Chief Magistrate’s Court at Nanyuki to Chief Magistrate’s Court at Isiolo. He sought that transfer on the basis that he ordinarily represents clients before the courts at Nanyuki, Nyeri Embu, Muranga Kerugoya and Karatina. That if his criminal case proceeded before the Chief Magistrate’s Court Nanyuki in the presence of his clients and potential clients he would be prejudiced. On hearing that prayer the court allowed the transfer of William’s criminal case file from the Chief Magistrate Court in Nanyuki to the Chief Magistrate’s Court at Isiolo. That was through this court’s ruling dated 20th June 2017. In that ruling the court inter alia stated in part thus:-

“6. The court is of the view that the applicant has indeed demonstrated facts that persuade this court that in the best interest of justice would be served by acceding to the application for transfer. To grant the applicant his prayer would serve the principle of fair trial under Article 50 of the constitution which provides that an accused person has a right to be presumed innocent. If the applicant was seen defending his criminal case by his client and potential client they more than likely would presume that he is guilty of a criminal offence. That would breach his constitution right. This court is obligated to protect the constitutional right of the applicant.”

3. Stephen has now by this action sought the following prayer:-

“(i) That the file Nanyuki Criminal Case No. 1358 of 2016 which was transferred to the Chief Magistrate’s court Isiolo vide order dated 20th June 2017 be transferred back to Nanyuki Chief Magistrate’s Court.”

Stanley has based that prayer on various grounds. Those grounds were that the advocate William failed to inform this court that his criminal case number 1358 of 2016 and the criminal case of Stanley being case no. 1179 of 2016 were due to be consolidated which consolidation was frustrated by the order of transfer of William’s criminal file. He further submitted that the transfer of William’s file to Isiolo Chief Magistrate’s Court will prejudice him and his witnesses who reside in Nyeri. He also submitted that William had failed to demonstrate that he would suffer prejudice and fail to have fair trial before the Chief Magistrate’s Court at Nanyuki. Stephen further deponed in his affidavit dated 19th October 2017 as follows:-

“7. That the transfer of the Nanyuki Criminal Case No. 1358 of 2016 to Isiolo is a violation of my constitutional right to have the accused person tried in the full glare of those people he represents.

4. William in response by his affidavit dated 2nd September 2017 deponed on the grounds raised by Stephen were considered in the judgment delivered in Miscellaneous Criminal Application No. 78 of 2016 of 20th June 2017. That accordingly what Stephen now seeks is a reconsideration of the same issues and it was therefore res judicata and abuse of the court process. William further deponed that Stephen was represented at the hearing of Miscellaneous Criminal Application No. 78 of 2016 by the Office of the Director of Public Prosecution. That Stephen accordingly lacks locus standi to bring and to prosecute the present action. On those grounds William sought the dismissal of Stephen’s application on the basis that it lacked merit.

ANALYSIS AND DETERMINATION

5. Under the Constitution of Kenya particularly Article 157(6) the Director of Public Prosecution (DPP) is empowered to exercise the state power of criminal prosecution. That power of the DPP to prosecute includes the power to make application for transfer of criminal cases as sought by Stephen. Stephen is not a party in the criminal trial of William but rather is a complainant whose interest are solely represented by DPP as provided under Article 157(6). The DPP’S power as provided under the constitution is not subject to anybody consent or direction. The power of the office of the Director of Public Prosecution was the subject of discussion in the case DIRECTOR OF PUBLIC PROSECUTION vs NAIROBI CHIEF MAGISTRATE’S COURT & ANOTHER (2016)Eklr. In that case the learned judge was discussing the right of a complainant who wished to withdraw a complaint without the consent of the prosecution. This is how the court discussed the power of DPP which is relevant here:-

(99(9

“Regarding the proper procedure for withdrawal of a complaint therefore, case law has also provided a particular direction. Dulu J in Johnstone Kassim Mwandi & Another vs Republic [2015] eKLR stated in that regard:-

“The court has no power to withdraw a criminal case on the direct request of the complainant, unless he/she is the prosecutor. Such request has to pass through the DPP.”

Similarly, Nyakundi J inRepublic vs Faith Wangoi [2015] eKLR held:

“I am of the considered view and in applying the law that the form the instructions should have taken in withdrawing a complaint is through the prosecutor. In practice the courts have always acted on the word of the prosecuting counsel or public prosecutor who controls and guides criminal proceedings.”

I agree with the Learned Judges’ dispositions on the subject and I dare add that it only makes sense that although a person who reports a crime may seek to withdraw his complaint, the DPP, in whose name the criminal proceedings began and could be sustained, must be a part of the withdrawal process in a considerable manner. Indeed, the Constitution grants the DPP powers to institute, undertake, take over, continue and discontinue proceedings in Article 157 of the Constitution which provides thus:-

“…..(6)The Director of Public Prosecutions shall exercise state powers of prosecution and may:-

(a) Institute and undertake criminal proceedings against any person before any court other than a court martial in respect of any offence alleged to have been committed.”

(b) To take over and continue any such criminal proceedings that have been instituted or undertaken by any other person or authority or to discontinue at any stage before judgment is delivered any such criminal proceeding instituted it undertaken by himself or any other person or authority.”

The power to continue proceedings must emphatically include the powers to rightfully oppose applications for withdrawal of complaints as such applications, if unopposed, may cause proceedings to be improperly discontinued.

6. William was right to submit that Stephen has no locus standi to seek the transfer of the criminal case from Isiolo Chief Magistrate Court to Nanyuki Chief Magistrate Court.

7. DPP was joined by Stephen in this action as an interested party. The Learned Principal Prosecution Counsel Mr. Tanui declined to respond to this application by Stephen however he drew the attention of the court to the affidavit sworn in Miscellenous Criminal Application No. 78 of 2016 by the investigating officer whereby that officer indicated that there was intention to consolidate the criminal case of William and Stanley.

8. In this court’s view the fact that the DPP intends to consolidate the criminal cases of William and Stanley could not have been an impediment to the transfer of William’s criminal file to Isiolo Chief Magistrate’s Court. This is because William raised valid reasons which demonstrated that he would suffer prejudice in the eyes of his clients and potential clients who would presume him to be guilty even before the trial. The right to fair trial was the upper most consideration of this court in making the order of transfer of Williams criminal case file. In the case GRAHAM RIOBA SAGWE & 2 OTHERS V FINA BANK LTD & 5 OTHERS (2017) eKLR the court Considered the purpose of having a fair trial and had this to say:-

“Fundamentally, a fair and impartial trial has a sacrosanct purpose. It has a demonstrable object that the accused should not be prejudiced. A fair trial is required to be conducted in such a manner which would totally ostracize injustice, prejudice, dishonesty and favouritism. And again decidedly, there has to be a fair trial and no miscarriage of justice and under no circumstances, prejudice should be caused to the accused.”

9. In my view there is nothing to stop DPP from seeking for the transfer of the criminal file of Stanley which is presently pending before the Nanyuki Chief Magistrates Court to Isiolo Chief Magistrate’s Court so as to ensure that it is available for consolidation with the one of William’s criminal case. If that was done it would ensure that the interest of justice in respect of William would be protected. The issue raised by Stephen that he and his witnesses would be prejudiced in that they will have to travel to Isiolo would be covered by the fact that Stephen and his witnesses would be paid travelling expenses to Isiolo by the trial court.

10. It is important to state that the doctrine of res juridicata raised by William in his replying affidavit does not apply to criminal cases. That doctrine only applies to civil action. What would apply in criminal cases and is probably similar to that doctrine is the issue of abuse of court process if a party indeed files more than one application in the same matter.

11. In view of the findings made above the notice of motion dated 14th September 2017 is dismissed with no orders as to costs.

DATED and DELIVERED at NANYUKI this 8th day of NOVEMBER 2017.

MARY KASANGO

JUDGE

CORAM:

Before Justice Mary Kasango

Court Assistant: Njue/Mariastella

For applicant ……………………….…….……..

For Respondent …..................................................

Language: ………………………………………

COURT

Judgment delivered in open court.

MARY KASANGO

JUDGE