[2017] KEHC 6093 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT EMBU

MISC. CRIMINAL APPLICATION NO. 10 OF 2016

STEPHEN MUCHIRI MUCHANGI ….......….....……..……….…APPLICANT

VERSUS

DIRECTOR OF PUBLIC PROSECUTION……….………. RESPONDENT

R U L I N G

1. The applicant in his notice of motion dated 16th of March 2016 seeks for the following orders:-

a)That this honourable Court be pleased to review and/or set aside the orders of the learned trial magistrate Hon. V.O. Nyakundi made on 29/2/2016 in Embu Chief Magistrate’s Court Sexual Offence No. 5 of 2015.

b)That this Honourable Court be pleased to review the court orders granted on 3rd March 2016 by the Chief Magistrate Hon. Gicheru that Sexual Offence caseNo. 5 of 2015 be withdrawn under Section 87(a) of the Criminal Procedure Code.

c)That this Honourable court do order thereinstatement and hearing of Embu ChiefMagistrate’s Court Sexual Offence No. 5 of 2015 and termination of Embu Chief Magistrate’s Sexual Offence No. 11 of 2016 or in the alternative doorder that the Applicant be acquitted of all the charges facing him.

2. The grounds supporting the application are that the complainant was heard in Sexual Offences case No 5 of 2016 and the matter was adjourned to another date. The applicant then engaged an advocate to represent him and when he came on record the file went missing and was subsequently reconstructed and an order made that the matter be heard de novo.The prosecution called two witnesses including the complainant who was a minor. She gave evidence and exonerated the applicant from any blame.

3. The prosecution without any justification applied for the matter to be transferred to another court which application was allowed by Hon. V.O. Nyakundi who referred the matter to the Chief Magistrate for directions without giving any reasons. When the matter went before the Chief Magistrate Hon. M. N. Gicheru the prosecution successfully applied to have the matter withdrawn under Section 87(a) of the Criminal Procedure Code.

4. In allowing the withdrawal, the Chief Magistrate did not consider the rights of the applicant to a fair and expeditious trial. The applicant was immediately re-arrested before he left the dock and remanded until the following morning when he was arraigned before the court and charged with the same offence. The applicant believes that the prosecution’s actions were clearly aimed at seeking for a second chance to see whether the complainant would change her testimony and implicate the applicant.

5. It is also contended that the Chief Magistrate failed to consider Section 40 of the Sexual Offences Act with regard to withdrawal of Sexual Offences. It is for the foregoing reasons that the applicant seeks for review of the orders of the Chief Magistrate and those of Hon. V.O. Nyakundi.

6. The respondent opposed the application and stated that it is seeking for an interpretation for Section 87(a) of the Criminal Procedure Code on whether or not the discretion of the court was exercised lawfully. The applicant faced a charge of defilement under the Sexual Offences Act whereas the trial magistrate V.O. Nyakundi recused himself and sent the file to the Chief Magistrate who granted withdraw under Section 87(a) on application by the respondent.

7. It is argued by the respondent that the Hon. Chief Magistrate exercised his discretion judiciously and in the interest of justice by taking into account the facts of the case. It is noted that the original file went missing and a duplicate file was opened which was kept under lock and key. It was contended that Section 87(a) allows withdrawal of charges at any time before an accused person is called upon to make a defence and that such withdrawal does not bar subsequent charges against the accused.

8. The respondent further submitted that the court in allowing the application for withdrawal exercised its discretion in the interest of justice. At the time of withdrawal the applicant had not been put to his defence and he was not subjected to any form of prejudice by the prosecution.

9. The respondent relies on the case of GEOFFREY MUHUZANI VS DIRECTOR OF PUBLIC PROSECUTIONS [2016] eKLR where the court held that withdrawal under Section 87(a) is not an abuse of the process of the court when reasons are given for it and that subsequent charges may be brought.

10. The respondent further states that it is evident that theprosecution stated the reasons for the withdrawal beforethe honorable court which were taken into consideration in allowing the application. Re-arresting the accused andarraigning him before the court with similar charges waswithin the law and that there was no violation of theapplicant’s fundamental rights and freedoms. Therespondent urged the court to dismiss the application.

11. The submissions of the applicant extensively deal with the facts supporting the application and states that thedefence objected to the withdrawal and informed the court of the intention of the prosecution to re-arrest theapplicant but the court went ahead and allowed theapplication. It is argued that the motive of the prosecutionin withdrawing the charges was to remedy the situationwhereby the minor had recanted her evidence and the applicant. The applicant further argues that theprosecution are using Section 87(a) to seal the loopholesin its case.

12. The applicant relies on Section 40 of the Children’s Act which provides that Sexual Offences may be withdrawn with the consent of the victim. It was therefore clearlywrong for the prosecution to use Criminal Procedure Code provisions to withdraw the case and this points to ulterior motives on the part of the prosecution. It also ignores the seriousness of Sexual Offences.

13. It is further argued that the court in allowing withdrawal failed in its duties as the custodian of the law for it ought to be guided by the provisions of the Constitution with regard to the fact that its sovereign powers are delegated by the Constitution which is the supreme Law of the land.

14. The applicant argued that the director of PublicProsecutions may not discontinue proceedings without thepermission of the court and as stipulated under Article157(8) of the Constitution. The court has a role to play inwithdrawal of criminal cases. The court requires to takeinto consideration the rights of the parties in exercising itsdiscretion. Public interests also requires to be consideredby the court and the state in exercising the powersdonated by Article 157. The powers of the Director ofPublic Prosecutions are not absolute and must beexercised in accordance with the Constitution and with the permission of the court.

15. Under Article 50 of the Constitution the applicant argues that he is entitled to a fair hearing and expeditious disposal of his case. The withdrawal of the charges after a period of one year and the re-arresting of the applicant called for a prolonged trial. The act of the prosecution amounted to violation of the Constitutional rights of the applicant under Article 50.

16. The applicant relied on the case of NAIBEI GERISHONKISACH VS REPUBLIC [2010] eKLR where it was heldthat the prosecution acted in bad faith in withdrawing acase under Section 87(a) of the Criminal Procedure Code.The court went on to say that the power under Section87(a) should be used to advance the cause of criminaljustice and not suppress it. The applicant urges the courtto have regard to the constitutional rights of the applicant and allow the application.

17. This application is brought under Article 50(2) (e), 157(11), 159(1)(b), 165(6) and 7 of the Constitution of Kenya,sections 362 and 364 of the Criminal Procedure Code. It is essentially an application for revision of the ruling of Hon. V.O. Nyakundi to disqualify himself from hearing CM Embu Criminal case no. 5 of 2015 and that of Hon. M.N. Gicheru for allowing withdrawal of the case under Section 87(a) of the Criminal Procedure Code.

18. The facts leading to this application are that the applicant was charged with defilement of a child in Sexual Offences case no. 5 of 2015. The complainant was heard before Hon. Nyakundi and the file subsequently went missing. It was also alleged that some witnesses had beenthreatened. The trial court reconstructed the file andordered that the matter be heard de novo.

19. Two witnesses the complainant and her mother were heard and the prosecution applied that the matter be heardbefore another court on the ground that a certain courtprosecutor had interfered with the case and influenced thecomplainant to change her version of the evidence andsomehow exonerated the applicant (accused) from blame.

20. This was preceded by a written complaint from the officeof the Director of Public Prosecutions in a letter dated28/01/2016. The matter was referred to the ChiefMagistrate Hon. M.N. Gicheru for directions.

21. Before the Chief Magistrate, the prosecution applied towithdraw the case under Section 87(a) of the CriminalProcedure Code (CPC). The reasons given is that anunnamed prosecutor had interfered with the evidence ofthe minor and forced her to give false evidence and thatjustice would not be served if the case proceeded as itwas.

22. The defence raised an objection on grounds that thewithdrawal was designed to fill in the gaps in theprosecution's case. The magistrate allowed theapplication after considering the arguments of bothparties.

23. Section 87(a) provides:-

In a trial before a subordinate court a public prosecutor may, with the consent of the court or on the instructions of the Director of Public Prosecutions, at any time before judgment is pronounced, withdrawfrom the prosecution of any person, and upon withdrawal:

(1) If it is made before the accused person is called upon to make his defence, he shall be discharged, butdischarge of an accused person shall not operate as a bar to subsequent proceedings against him on account of the same facts.

24. Under this provision, it is clear that the court has a wide discretion as to allow or to refuse the withdrawal of a case.

25. The applicant also relies on Article 157 of the Constitution. Which spells out the functions of the Director of Public Prosecutions. The relevant provisions herein are Article 157 (1), (6), (8) and (11) which provides:-

(1) There is established the office of Director of Public Prosecutions.

(6) The Director of Public Prosecutions shall exerciseState powers of prosecution and may:-

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

b)Take over and continue any criminal proceedings commenced in any court (other than a court martial) that have been instituted or undertaken by another person or authority, with thepermission of the person or authority; and

c)Subject to clause (7) and (8), discontinue at any stage before judgment is delivered any criminal proceedings instituted by the Director of Public Prosecutions or taken over by the Director of Public Prosecutions under paragraph (b).

(8) The Director of Public Prosecutions may notdiscontinue a prosecution without the permission of the court.

(11) In exercising the powers conferred by this Article, the Director of Public Prosecutions shall have regard tothe public interest, the interests of theadministration of justice and the need to prevent and avoid abuse of the legal process.

26. The jurisdiction of this court to review the ruling and to interpret various provisions is donated by Article 165(3)(d) of the Constitution and Section 362 as read with Section364 of the Criminal Procedure Code.

27. It is trite law that the Director of Public Prosecutions (DPP)in exercise of its powers under Article 157 (11) shall haveregard to public interest, the interests of theadministration of justice and the need to prevent and avoid abuse of the legal process.

28. The court must also exercise its discretion under Section87(a) and Article 157 (6) and (8) judiciously.

29. The provisions of Article 50(1) (e) which grant an accusedperson the right to a fair trial including expeditiousdisposal of the case.

30. The applicant seeks review of the orders of the first trialmagistrate to disqualify himself and is in essencechallenging the validity of the said orders.

31. The first complaint before Hon. Nyakundi was that thewitnesses were being threatened by the accused. TheO.C.S. Itabua was directed to investigate and file anaffidavit of the witness who claimed to have beenthreatened. An affidavit sworn on 7/01/2016 by oneSelessio Muriithi the father of the complainant was filed tothe effect that the accused had threatened him.

32. He stated that the accused had indicated to the sub-area(village elder) that he wanted to meet him together withhis (accused) parents and apologize about what he haddone to his daughter. It was further deponed that the applicant said that he was ready to give monetarycompensation in the presence of his advocate if Selessioagreed to withdraw the case. Selessio said he haddeclined to grant the request of the applicant.

The trial magistrate allowed the application to move the case to another court and indicated that it will be for the interests of justice. The reasons for the transfer were given by the prosecutor and the defence were given a hearing.

34. The order was, therefore, given after hearing both sides and it has not caused any prejudice to the accused. The complaint in the DPP's letter was not accusing the court but was concerned with the threat on the prosecution witnesses.

35. The DPP also suspected foul play in the way the case was progressing and especially starting the case de novo whereas the complainant had already been heard in the file, that had mysteriously gone missing.

36. The defence objected on grounds that the prosecution intended to fill in the gaps in its case. The ruling of the magistrate was brief and as follows:-

I have considered the submissions by both sides. I find that it is fair and reasonable to allow that the case be withdrawn under Section 87(a) Criminal Procedure Code and it is withdrawn accordingly.

37. This court called for and perused the court file. Sexual Offences Case No. 11 of 2015. The affidavit of thecomplainant's father on threats and attempts to have thecase withdrawn by the accused who said he was ready to give monetary compensation to the complainant's parents triggered all the events that followed in this case.

38. Just before releasing the file to go to the Chief Magistratefor further directions, the court interviewed the father ofthe complainant who stated that before the complainanttestified, he had seen the court prosecutor and theinvestigating officer lead her into the court Civil Registry.She stayed in the registry with the prosecutor forsometime before he came out holding her hand.

39. The complainant told the father later that she had beentold to tell to the court that she was not defiled and thatshe had fallen off the bicycle of the applicant and hurtherself thus resulting in bleeding from her private parts.This is exactly what she said in her evidence when shetestified in the skeleton file.

40. With all this information contained in the court file andwith the ongoing investigations on the threat on witnesses as well as the affidavit and interview of the complainant'sfather by the magistrate, the prosecution was justified totake the action it took. The magistrate looked at thereasons given and found that it was in the interests ofjustice to allow the application.

41. I have perused the authorities cited by the defence whosefacts are completely different from the ones in this case.The court must be guided by the facts of each case. In this case, I find no evidence of violation of the constitutionalprovision as to the applicant's rights of fair hearing underArticle 50(2) of the Constitution. Rather, it is the rights ofthe minor victim who are at risk of being violated should the trial proceed as it is.

42. A case of defilement is a serious one which ought to beheard to conclusion to achieve justice to both parties.Justice is a double-edged sword which must penetrateboth sides of the divide. The minor of tender age was not in a position to understand the intricacies involved in theinterference by the prosecution which was not denied. She did not possess the legal capacity to make aninformed decision and just told the court what theunnamed prosecutor told her to say. The said interference which caused concern to the DPP's office must be one ofthe issues that the trial magistrate took into considerationin exercising his discretion to allow withdrawal of the caseunder Section87(a).

43. Section 40 of the Sexual Offences Act provides that it is the mandate of the Attorney General to decide whether police investigations on a sexual offences case should be discontinued. This Act was enacted in 2006 and revised in 2009 before the Constitution of Kenya, 2010 was enacted.

44. The constitution established the office of the Director ofPublic Prosecution under Article 157 as an independentoffice to deal with all criminal prosecutions. Sexualoffences are criminal offences. The DPP was thereforewithin its mandate to apply to withdraw the case. Section40 was therefore not violated as alleged.

45. I find that both parties were heard in the withdrawalapplication and that the magistrate Hon. M.N. Gicheruexercised his discretion judiciously in compliance withArticle 157 of the Constitution.

46. The issue of the validity of proceedings arise in this case.The original file mysteriously went missing after thecomplainant testified for the first time. The prosecutor did not apply and the court did not make an order for openinga skeleton file. The opening of a skeleton file which wasgiven a different number by the court was not authorized. It was not demonstrated whether sufficient effort to tracethe original file had been made. This file has no chargesheet and no plea was taken to commence the case afresh as required by the law.

47. The Director of Public Prosecutions had a reason to bedisturbedthat the accused and its own prosecutor wereacting in bad faith which may have influenced thedisappearance of the original file as shown in the DPP'sletter to the court dated 28/01/2016. Although thedefence say they were not served with the letter, it is inthe court file and forms part of the complaint by the DPPand the complainant's father.

48. It appears that the accused, after failing in his mission tohave the complainant's parents withdraw the case, he was determined to use any means at his disposal to achieve an acquittal. Nothing would have yielded positive resultsthan interfering with the evidence of the witnessesstarting with the most vulnerable one, the complainantaged 8 years.

49. The 2nd trial magistrate had all this information in theskeleton file which he must have perused after it wasforwarded to him for directions. It follows that trialmagistrate proceeded to take the evidence of PW1 andPW2 without compliance with the law. A charge sheetshould have been availed by the prosecution and the pleawas required to be taken before the case could be heard.This omission renders the proceedings by Hon. V.O.Nyakundi recorded null and void for all intents andpurposes.

50. In effect I make the following orders:-

i. That the application has no merit and is hereby dismissed.

ii. That the orders of Hon. M.N. Gicheru made on 03/03/2016 are hereby upheld.

iii. That the proceedings in the skeleton file relating to the evidence taken on 25/1/2016 are hereby declared null and void;

iv. That a skeleton file be opened, plea taken and that the case be heard by another other magistrate who has not dealt with the matter and that the case be fast tracked.

51. It is hereby so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 11TH DAY OF APRIL, 2017.

F. MUCHEMI

JUDGE

In the presence of:-

Mr. Andande for the Applicant

Ms. Nandwa for the Respondent