[2022] KEHC 11199 (KLR)

Waiyaki (Suing as Legal Representative of the Estate of the Late Janet Wangui Waiyaki) v Attorney General & 3 others (Constitutional Petition E344 of 2021) [2022] KEHC 11199 (KLR) (Constitutional and Human Rights) (16 June 2022) (Ruling)

Neutral citation: [2022] KEHC 11199 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Constitutional Petition E344 of 2021

HI Ong'udi, J

June 16, 2022

In The Matter Of The Alleged Contravention Of Fundamental Rights And Freedoms Under Articles 2, 10, 26(1), 29(c) And (f), 238(2)(b) And 244 (c) Of The Constitution And In The Matter Of The Alleged Contravention Of Fundamental Rights And Freedoms Under Article 6(1) Of The International Covenant On Civil And Political Rights, Article 16(1) Of The Universal Declarations On Human Rights And In The Matter Of The Alleged Contravention Of Fundamental Rights And Freedoms Under Articles 3, 5, 10, 13 Of The Convention Against Torture And Other Cruel, Inhuman And Degrading Treatment Or Punishment And In The Matter Of Criminal Case No. 28 Of 2018 Republic V William Kipkorir & Godfrey Kipngetich Kirui

Between

Beatrice Njeri Waiyaki

Petitioner

Suing as Legal Representative of the Estate of the Late Janet Wangui Waiyaki

and

Attorney General

1st Respondent

Inspector General of Police

2nd Respondent

Corporal William Kipkorir

3rd Respondent

Corporal Dofrey Kipngetich Kirui

4th Respondent

Ruling

1. The petitioner Beatrice Njeri Waiyaki is the legal representative of the estate of Janet Wangui Waiyaki. The deceased met her death on May 20, 2018 as a result of gunshot wounds. The matter was investigated as a result of which the 3rd & 4th respondents were jointly charged with the murder vide MIlimani High Court Criminal Case No.28 of 2018 Republic v. William Kipkorir Chirchir & Godfrey Kipng’etich Kirui.

2. After going through a full trial they were found guilty and convicted of the lesser offence of manslaughter and were each sentenced to serve seven (7) years imprisonment. They have each filed an appeal before the Court of Appeal.

3. The Petitioner filed the petition dated 6th August 2021 seeking the following orders:-i.A declaration that the shooting and killing of Janet Wangui Waiyaki by the 3rdand 4th respondents was in violation of her right to life as guaranteed in article 26(1) and (3) of the Constitution.ii.A declaration that the shooting and killing of Janet Wangui Waiyaki by the 3 and 4th respondents when he posed no threat amounts to cruel, inhuman and degrading treatment and the same offends article 29 of the Constitution as read alongside article 16(1) of the Convention against Torture.iii.A declaration that shooting and killing of Janet Wangui Waiyaki by the 3rd and 4th respondents was a violation and denial of her freedom and security of person provided under article 27(1) and 29(c)and (f) of the Constitution.iv.A declaration that the force used by the 3rd and 4th respondents against Janet Wangui Waiyaki was excessive and unreasonable in the circumstances.v.A declaration that the killing of Janet Wangui Waiyaki was a violation of articles 238(2)(b) and 244 of the Constitution.vi.A declaration that the state through its agents the 1st, 2nd, 3rd and 4th respondents failed to fulfil its obligations under article 6(1) of the International Covenant on Civil and Political Rights, articles 3, 5, 10, 13 of the Universal declaration of Human Rights and article 16 of the convention against torture and other cruel inhuman and degrading treatment or punishment.vii.An order for general and exemplary damages suffered consequential to the declarations of violations of the deceased’s fundamental rights and freedoms.viii.Any other just and expedient order the court may deem fit to make.ix.Costs of this petition.

4. Thereafter the 3rd & 4th respondents filed a notice of motion dated November 1, 2021 seeking the following orders:-a.Spent.b.The honourable court be pleased to stay the proceedings in this petition pending the hearing and final determination and exhaustion of the right and options of appeal available to the applicants.c.The costs of this apparition be provided for.

5. The application is supported by the grounds on its face and the applicants’ supporting affidavit. A summary of the issues raised is to the effect that the 3rd and 4th respondents were charged and convicted of the offence of manslaughter. They have lodged a notice of appeal dated June 5, 2021 challenging both the conviction and sentence before the Court of Appeal. Thus this court lacks jurisdiction to deal with the matter.

6. They also claim that the petition raises issues which refer to and are the subject of part heard proceedings in Magistrate’s Court Criminal Case No. 1115 of 2018 Republic v. William Kipkorir Chirchir & Godfrey Kipng’etich Kirui. They aver that by virtue of article 50(2)(a) of the Constitution they are presumed innocent until proved guilty by a court of competent jurisdiction.

7. The petitioner filed a replying affidavit dated 9th November 2021 opposing the application. She has averred that the law allows criminal and civil proceedings over a similar matter to be heard simultaneously. Further that under article 50(2) of the Constitution the conviction and sentence of an accused person does not absolve him/her from civil liability on an action brought by the injured party.

8. She disputes there being any similarity between High Court Criminal Case No. 28/2018, and Milimani Magistrate’s Criminal Case No. 1115 of 2018. She referred to Mutuku J’s ruling in Misc. Cr. Application No. 452 of 2018 - William Kipkorir Chirchir & another v. Director Criminal Investigations and another [2018] eKLR which dealt with the murder and attempted murder cases herein.

9. She depones that she is neither a party in the Court of Appeal case nor the Magistrate’s Court case. Further that issuance of the orders sought will cause her irreparable damage as it will cause unnecessary delays.

10. The 2nd respondent filed a replying affidavit by Moses Shikuku No. 232467 Chief Inspector of Police sworn on 24/11/2021. This replying affidavit is in respect of the petition as it entirely relates to the circumstances surrounding the charge of murder.

11. The applicants in their supplementary affidavit dated 1st March 2022 have reiterated what is in their supporting affidavit. They have deponed that Misc. Cr. Application No. 452 of 2018 was in respect of an order for the correctness, legality or propriety of the order of the trial magistrate in Milimani SPM Cr. Case No.1115 of 2018. Further that it had nothing to do with dissimilarity as alleged by the petitioners.

The Parties’ submissions. 12. The 3rd & 4th respondent/applicants’ submissions to the notice of motion dated 1st November 2021 have been field by Rachuonyo & Rachuonyo advocates. Counsel argues that the petitioner’s claim is instituted under provisions of the civil law while proceedings in Milimani High Court Cr. Case No.28 of 2018 Republic v. William Kipkorir Chirchir & another were criminal in nature. He adds that upon conviction the 3rd & 4th respondents lodged an appeal in the Court of Appeal challenging the conviction and sentence pursuant to rule 59(1) of the Court of Appeal Rules, 2010.

13. He therefore contends that the proceeding the petitioner intends to rely on are the subject of the appeal now before the Court of Appeal. It would therefore not be proper for the same proceeding to be handled by this court at this time.

14. Counsel relied on two cases to support his submission. These are:-i.Kiambu High Court Cr. Appeal No. E005 of 2021 Republic vs. Tim Johnson Mumo Muthianiii.Mombasa Cr Appeal No. 128 of 2016 Mohamed Said Salim alias Major v. Republic

15. He further submits that their application will not prejudice the petitioner in any manner whatsoever. It is meant to prevent this court from undertaking an exercise that could turn out to be an academic exercise if the court of Appeal were to overturn the conviction for manslaughter.

16. The petitioner’s submissions dated March 14, 2022 were filed by Kariuki Karanja & company advocates. Counsel has submitted that the application herein seeks to stay this petition indefinitely. He contends that the concurrence of criminal and civil is not without legal basis, section 193 A of the Criminal Procedure Code provides:-“Notwithstanding the provisions of written law, the fact that any matter in issue in any criminal proceedings is also directly in issue in any civil proceedings shall not be a ground for stay, prohibition or delay of the criminal proceedings.”

17. On this same argument he referred to the case of Raymond Kipchirchir Cheruiot & another vs. Republic[2021] eKLR.

18. Counsel submits that the applicants have already been convicted and are awaiting their appeal to be heard. They have not established any extra-ordinary and exceptional circumstances to make this court grant them the orders sought. Further that there is no law that bars criminal and civil proceedings being heard concurrently.

19. He further argues that the burden of proof in criminal cases on appeal still remains higher than the civil one. In that case even if the appeal were to succeed that would not terminate this petition. He argues that he applicants have a duty to show that their case is exceptional in order for this court to exercise its discretion in their favour. He adds that this court has no control over the matters in the Court of Appeal.

20. Counsel further submits that the complainant in the proceedings in Magistrate’s Court Cr. No. 1115 of 2018 Republic vs Godfrey Kirui & another is not the petitioner. On this he referred to the ruling by Justice Mutuku on the same.

Analysis and determination 21. I have carefully considered the application, responses, the rival submissions, cited authorities and the law. The only issue I find falling for determination is whether the prayer for stay of these proceeding is merited.

22. The applicants were convicted of manslaughter contrary to Section 202 as read with section 205 of the Penal Code and sentenced to serve 7 years imprisonment each. They were convicted on May 11, 2021 and sentenced on May 27, 2021. Their notice of appeal is dated June 4, 2021 and was received at the High Court Criminal Registry Milimani on June 5, 2021. There is therefore no dispute that the applicants have timeously challenged their conviction and sentence. By doing so they have simply exercised their constitutional right under section 379(1) of the Criminal Procedure Code.

23. It is also not disputed that by virtue of section 193A of the Criminal Procedure Code civil and criminal proceedings can be heard concurrently. That being the case then it means for the court to exercise discretion and order for stay of any of the two proceedings it must be satisfied that there are special circumstances to warrant that. This would therefore depend on each case scenario.

24. The petitioner in this case is the administrator of the deceased’s estate. She has vehemently opposed any staying of the proceedings herein as no good reasons has been advanced.

25. I have read through the documents filed herein and I note that the applicants were charged with murder contrary to section 203 as read with section 204 of thePenal Code. After a full hearing they were convicted of manslaughter contrary to section 202 as read with section 205 of the penal code.

26. The appeal is already one (1) year old in the Court of Appeal, as the applicants and counsel await directions from the superior court.The loss of a loved one is a painful thing and the anxiety the petitioner has been through is not small. As a court of law we are duty bound to consider both sides of the coin.

27. Whatever the outcome from the Court of Appeal I am sure the same would have some form of impact or bearing on the weight to be placed on the reliefs sought by the petitioner herein. The criminal proceedings the applicants are pursuing are not the normal criminal proceedings. It is an appeal emanating from the normal criminal proceedings. A decision has already been made and the applicants want a more superior court to have a second look at what happened to them. No decision has been made in the petition before this court. Therefore the appeal and the petition cannot be on the same pedestal.

28. My finding is therefore that staying of these proceedings is not blocking the petitioner from exercising her constitutional rights to a fair hearing. It is rather giving the applicants a second chance for their case to be tested. This file will remain active with the applicants briefing the court on the progress of the appeal which of course does not amount to monitoring and or controlling the said Superior Court.

29. Upon weighing all the circumstances I find it reasonable to allow the application and stay this petition. There shall be a mention on December 7, 2022 for counsel for the 3rd and 4th respondents / applicants to update the court on the progress of the appeal.

Orders accordinglyDELIVERED VIRTUALLY, THIS 16TH DAY OF JUNE 2022 IN OPEN COURT AT MILIMANI NAIROBI.H. I. ONG’UDIJUDGE OF THE HIGH COURT