[2022] KEHC 2363 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL APPEAL NO E100 OF 2021

TOM OYWA MBOYA...........................................................................APPLICANT

VERSUS

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

RULING

The applicant under certificate of urgency has applied for the following orders.

1) Spent

2) An order directing that the applicant be released on bail pending the hearing and determination of his appeal.

3) To make any other order that the court may deem fit to grant.

4) An order to make provision for costs.

The application is supported by seventy seven grounds that are set out on the face of the notice of motion dated 19th November 2021, with the major grounds being the following.

The applicant was convicted and sentenced by the lower court on 27/09/2021 and sentenced to 20 years in count I (which charged the offence of attempted murder) and 3 years in count II (which charged unlawful wounding) without the option of a fine. The applicant filed an appeal being Nairobi High Court Criminal Appeal No. E100 of 2021. The appeal has overwhelming chances of success to warrant the grant of the orders sought. The trial of the applicant violated his fair trial rights as enshrined in article 50 (2) (k) of the Constitution.

The applicant further stated that pertinent to the determination of the guilt or innocence of the applicant was whether there was prolonged provocation and history of threats to kill the victim against

the applicant which stemmed from the alleged love affair between the applicant and the victim’s wife. It was equally important to the determination of the guilt or innocence of the applicant whether the applicant was armed and dangerous and whether the applicant acted in self defence.

He also was denied the right to call four extra witnesses in his defence if his application to arrest the delivery of the impugned judgement had been allowed with the result that defence case would have been re-opened. Furthermore, the prosecution failed to call a potential witness namely Daniel Bibao Oruda because they claimed that he could not be traced; which was a deliberate attempt by the prosecution to suppress evidence. The court dismissed the defence application on 27/09/2021 in respect of calling witnesses for the defence and the court immediately proceeded to deliver its judgement. In doing so the trial court denied the applicant the opportunity to apply for revision of its decision to the High Court which is guaranteed under article 165 (6) and (7) of the Constitution and section 362 and 364 of the Criminal Procedure Code. The court also cancelled the applicants bail and remanded the application in Industrial Area prison.

In the remaining grounds the applicant has set out what I find to be the history, submissions on the credibility of the witnesses and grounds that ought to be raised during the hearing and determination of the appeal; and for that reason I hereby decline to set them out as grounds in support of the application.

In addition to the foregoing the applicant has deposed to an eighty three (83) paragraphs supporting affidavit; with the following being the major averments.

The applicant has replicated the same matters that are raised as grounds in support of the application as averments in his affidavit; except for the following matters. The applicant’s revision application dated 29th October 2021 in Nairobi High Court Misc. Criminal Revision Application No. E332 of 2021 was rendered nugatory before the scheduled hearing date on 7th October 2021 with this court (Lady Justice Grace Nzioka) expressing her frustration and explained that she was unable to grant stay any orders since the lower court file although called for had not been availed. Additionally, the applicant had contracted a chest infection and heart burn and was recommended for bed rest for three days in October 2021. The applicant also had erratic and unstable blood pressure and was advised that he seeks health service provisions from other more developed health facilities.

The submissions of counsel for the applicant.

Counsel for the applicant ( Messrs Prof. Tom Ojienda and Associates) has submitted that the application has met the threshold for the grant of the application for bail pending the hearing and determination of the appeal and ought to be allowed.

Counsel has cited the provisions of section 357 (1) of the Criminal Procedure Code (Cap 75) Laws of Kenya in support of the application; which provisions vest in the High Court discretionary power to release a convicted person on bail pending the hearing and determination of the appeal.

Furthermore, counsel cited a number of authorities including Somo v R (1972) EA 476, in which the court held that an application for bail pending the hearing and determination of the appeal may be allowed if the applicant demonstrates that there overwhelming chances in the appeal being successful.

Counsel also cited Jivraj Shah v R (1986) e-KLR, in which the court held that an application for bail pending appeal may be allowed if the applicant demonstrates that there are exceptional or unusual circumstances involved in the appeal.

In addition to the foregoing counsel has submitted based on the evidence tendered in the lower court that the trial of the applicant was flawed and failed to meet the tenets of a fair trial in terms of article 50 (2) (k) of the Constitution in that the trial court failed to allow the applicant to adduce exonerating evidence of four witnesses after the defence case had been closed. Counsel submitted that such evidence is allowed even after the defence has closed its case or where he is serving his sentence of imprisonment. Counsel further submitted that the right to a fair trial by virtue of article 25 (c) of the Constitution cannot be limited despite any other provisions in the Constitution. It was also the submission of counsel that an accused cannot be prevented from adducing evidence which exonerates him at any stage even after conviction. Additionally counsel submitted that : “….It is indeed not uncommon in common law jurisdictions where a witness emerges and adduces evidence which may lead the court to release an accused from prison even after serving part of the sentence.”

The trial court in that regard ruled that there was no enabling law in Kenya that permits such applications and that such witnesses ought to have tendered their evidence before the close of the defence case. The trial court therefore dismissed the application.

Furthermore, counsel has submitted that it was outrageous for the court to deliver its judgement after dismissing the application to re-open the case; because the trial court effectively denied the applicant the right to seek recourse in the form of a revision of the decision of the lower court in the High Court under article 165 (6) and (7) of the Constitution and section 362 and 364 of the Criminal Procedure Code.

Counsel further submitted that the trial court delivered the impugned sentence when the applicant was seriously bedridden and therefore unfit to stand trial. The prison authorities confirmed through their letter dated 13th October 2021 that the applicant had been recommended to have a bed rest for three days.

The remaining submissions of counsel are under the following headings. First, the learned magistrate erred in ignoring the evidence that the 1st victim (Pw 1) was also armed at the time of shooting and that this triggered a natural reaction for self defence. Second, the learned magistrate exhibited obvious bias and hostility against the applicant for no reason at all which culminated in a trial that was not fair. Third, the learned magistrate convicted the applicant without establishing mens rea; which is a mandatory component for criminal responsibility.

The case for the respondent

Counsel for the respondent (Zaphida Chege) filed four grounds of opposition to the application; with the major ground being that the applicant has not demonstrated that there are special or unusual circumstances involved in the appeal.

Counsel also filed written submissions in support of opposition to the application. The submissions of counsel are as follows.

Counsel submitted that the applicant lost the presumption of innocence that is guaranteed to him by article 50 (2) and (a) of the Constitution. Furthermore, counsel submitted that the burden is upon the applicant to demonstrate the following. First, there is in existence exceptional circumstances to warrant the release of the applicant on bail pending the hearing and determination of his appeal. In this regard, counsel submitted that the contraction of a chest infection by the applicant can be addressed by the prison health facilities who also have proper referral facilities to KNH. This reason lacks merit and should be dismissed.

Secondly, the likelihood of the appeal succeeding. Counsel has submitted that the failed attempt to arrest the delivery of the judgement in the trial court does not amount to denial of fair trial. Counsel further submitted that litigation must come to an end in relation to the applicant’s application to call witnesses after closing the defence case. The issue that the applicant acted in self defence and that the trial court was biased are issues that can be addressed exhaustively during the hearing of the main appeal.

Thirdly, the applicant’s appeal will not be rendered nugatory as the record of the appeal is ready and therefore there will not be inordinate delay in the hearing and determination of the appeal within a reasonable time; subject to the court diary. Counsel therefore submitted that the applicant will not have served a substantial part of his sentence before the appeal is heard and determined; since the court is currently hearing 2020 appeals.

Counsel has therefore urged the court to dismiss the application.

Issues for determination

I have considered the affidavit of the applicant, the grounds in support of the application and the submissions of his counsel. I have also considered the grounds of opposition and the submissions of counsel for the respondent.

After doing so, I find that the following are issues for determination. 1. Whether the learned trial magistrate had jurisdiction to entertain and determine the application (the motion) for the arrest of judgement.

2. Whether the appeal has overwhelming chances of success.

3. Whether there are exceptional or unusual circumstances in the appeal.

4. Who pays the costs of this application?

Issue 1

The criminal jurisdiction of the magisterial courts in matters of procedure is comprehensively set out in the Criminal Procedure Code (Cap 75) Laws of Kenya. A perusal of the said code clearly shows that they do not have powers to entertain and determine applications (motions) for the arrest of judgements of the court. Furthermore, they do not have inherent powers. In short they are courts of limited jurisdictions; whose jurisdiction is only set out in the relevant statutes. Other the hand, the High Court has inherent powers in additional to relevant enabling statutory laws; and this is confirmed by the decision of the High Court (Madan, Ag CJ, Aganyanya and Gicheru, JJ) in Stanley Munga Githunguri v Republic (1986) KLR 1. If they were vested with inherent powers one may argue they would entertain such applications pursuant to those powers. In that case the High Court held that it had inherent powers to exercise jurisdiction over tribunals and individuals acting administratively or quash-judicial capacity. It is by virtue of those powers that the High Court issued an order of prohibition in that case to stop the abuse of the court process in the lower magisterial court. The existence of the inherent powers of the court in the court has long been recognized and used to prevent the abuse of the court process.

Lord Blackburn in Metropolitan Bank Ltd v Pooley (1885) 10 App Cases, 210 at p. 220 pronounced himself in relation to the inherent powers of the court that: “But from early times ….the court had inherently its power the right to see that its process was not abused by a proceeding without reasonable grounds, so as to be vexatious and harassing – the court had the right to protect itself against such an abuse.”

Similarly, Lord Selbourne in the same case said at p.214:“The power seemed to be inherent in the jurisdiction of every Court of Justice to protect itself from the abuse of its own procedure.”

Furthermore, it is only the High Court that is vested with powers to entertain and determine motions for the arrest of judgements. This is clear from the provisions of section 276 (1) of the Criminal Procedure Code, which read as follows:

“If an information does not state, and cannot by amendment authorized by section 275 be made to state, an offence of which the accused has had notice it shall be quashed either on a motion made before the accused pleads or on a motion made in arrest of judgement.”

It is equally clear that even the power of the High Court to entertain and determine such motions is limited to quashing of the information (the equivalent of charge sheet in the lower court).

It therefore follows that the magisterial court did not have jurisdiction to entertain and determine the application for the arrest of judgement.

It is also follows that the learned magistrate was right in dismissing the said application since there was no enabling law.

The only statutory power that that court had was to entertain and determine an application for bail pending the filing of the appeal in the High Court under section 356 (1) of the Criminal Procedure Code. It did not have jurisdiction to stop delivery of its judgement.

Counsel for the applicant has submitted that it is common in common law jurisdictions to re-open a trial where the accused has closed his case at trial. I find that counsel did not cite any authority either statutory or case law in support of that novel proposition. I find that the dismissal by the lower court was warranted and was proper. I am only aware that International criminal tribunals such as the defunct International Criminal Tribunal for Rwanda had provisions of that nature but locally there is no enabling legislation. Those tribunals apply a hybrid of the English common law and civil law that is prevalent in continental Europe.

Counsel further submitted that the applicant was denied the right to have the order of the lower court to be revised under the provisions of under article 165 (6) and (7) of the Constitution and section 362 and 364 of the Criminal Procedure Code. As a result, the applicant’s revision application dated 29th October 2021 in Nairobi High Court Misc. Criminal Revision Application No. E332 OF 2021 was rendered nugatory before the scheduled hearing date on 7th October 2021. This was most unfortunate. However, it appears that the order of the magisterial court appears to have been made within its jurisdiction; which then left the applicant with the only effective remedy of filing an application before the same court under section 356 (1) of the Criminal Procedure Code for the release of the applicant on bail pending the filing of the appeal in the High Court.

Furthermore, counsel submitted based on the averment of the applicant in the supporting affidavit that the trial court delivered the impugned sentence when the applicant was seriously bedridden and therefore unfit to stand trial. Counsel submitted that the prison authorities confirmed this through their letter dated 13th October 2021 which confirmed that the applicant had been recommended to have a bed rest for three days. This submission is not supported by the said letter. That letter in the pertinent part states that:

“He was treated 5th October 2021 due to chest infection and heart burn MOPD no. 9257/2021 with injection for three consecutive days that is 5th 6th 7th.

The regimen response is erratic with unstable blood pressure.

In conclusion he is still under continuum care at the facility with need to seeking health service at a peripheral facility.”

It is clear that the applicant was not bedridden.

However, it is clear that the applicant was recommended for treatment at a peripheral facility.

Furthermore, during the virtual session of the pre-sentencing hearing on 6th October 2021 Mr. Makokha for the applicant made an application to adjourn the proceedings on the basis that they had filed a revision application in the High Court. The said application was opposed by the prosecution by submitting that the court was on transfer. I find that the trial court rightly rejected the adjournment since there was no order of stay from the High Court to stop the magisterial court from proceeding with the delivery of its judgement in respect of sentence. I therefore find that this does not constitute an exceptional or unusual circumstance. I therefore reject this submission.

Finally, I find that the application of the applicant was to arrest the delivery of judgement on sentence and was not based on the illness of the applicant. I find that the submission of the applicant in that regard is without merit.

Issue 2

I find that the applicant attempted to demonstrate that the appeal has overwhelming chances of success by making submissions that touch on the merits of the appeal in particular in making submissions on the credibility of the witnesses. These are matters that can only be raised during arguments of the main appeal and not at this interlocutory stage.

I therefore find that the applicant has not demonstrated that there are overwhelming chances of the appeal succeeding.

Issue 3

Counsel submitted that the contraction of a chest infection by the applicant and the instability of the applicant’s blood pressure cannot be catered for by the prison health facilities. Counsel therefore submitted that the only remedy is to have the appellant released on bail pending appeal so that he can seek medical attention in other medical facilities. I find that prison authorities have proper referral facilities to Kenyatta National hospital for patients in respect of whom they lack facilities. This submission lacks merit and hereby dismissed.

Issue 4

A perusal of the Criminal Procedure Code clearly shows that costs in this type of application are not provided for. Costs are only provided for in what is popularly known as private prosecutions in terms of section 171 (1) and (2) of the Criminal Procedure Code. Additionally, only the High Court has inherent powers to order for the payment of costs. See Municipal Council of Dar es salaam v Almeida (1967) EA 244. I find nothing in the circumstances of this application to warrant the making of an order for the payment of costs. I make no order as to costs.

In the premises, I find that the applicant has failed in his application with the result that the application is hereby dismissed in its entirety.

RULING SIGNED, DATED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 10TH DAY OF FEBRUARY 2022.

J M BWONWONG’A

JUDGE

In the presence of-

Mr. Quintus/Anastacia: Court assistant

Mr. Makokha holding brief for Prof. Tom Ojienda (SC) for the applicant

Ms Chege for the Respondent.