[2022] KEHC 11621 (KLR)

Walingo v Republic (Criminal Revision E170 of 2022) [2022] KEHC 11621 (KLR) (11 May 2022) (Ruling)

Neutral citation: [2022] KEHC 11621 (KLR)

Republic of Kenya

In the High Court at Nakuru

Criminal Revision E170 of 2022

TM Matheka, J

May 11, 2022

Between

Mary Khakoni Walingo

Applicant

and

Republic

Respondent

Ruling

1. Mary Khakoni Walingo, Samuel Kasaine Ole SenoJohn Almadi Obere, Anaclet Biket Okumu and Noor Hassan Abdi are the accused persons in Nakuru Chief Magistrate’s Anti-Corruption Case Number 2 of 2020.

2. Upon taking plea, on August 26, 2020, the accused persons pleaded not guilty and each was granted bond of Kshs. 20,000,000/- with surety of similar amount or Cash Bail of Kshs. 10,000,000/=

3. Vide an Application dated September 22, 2020the prosecution sought the review of the bond terms, and that the additional conditions that the accused persons be denied access to their offices at Maasai Mara University, not to have any contact or communicate with any of the witnesses; and for the Acting Vice Chancellor or Management, not to hold any disciplinary meetings or summons or dismissal of the witnesses in the case pending the hearing and determination of the criminal case.

4. It was the prosecution’s contention in that the application that the applicants either by themselves or through proxies, using different avenues and tactics inter alia, had caused witnesses to suffer intimidation, and threats to their employment by constant harassment, through demotions, redeployment as well as disciplinary processes.

5. On April 8, 2022the learned trial magistrate Hon. Bildad Ochieng Chief Magistrate allowed the Application against the 1st and 2nd accused persons.

6. The accused persons were aggrieved by the court’s Ruling and filed this application for review seeking inter alia, a stay of the proceedings in the Anti-Corruption Criminal Case Number 02/2020 pending the determination of the application inter partes.

7. The application seeks the revision of the trial court’s Ruling of April 8, 2022, and a stay of that ruling pending the hearing of the application for review and is brought under articles 25(c ) and 50 of the Constitution, and sections 362 and 364(1) (b) of the Criminal Procedure Code cap 75 laws of Kenya and all other enabling provisions of the law.

8. I directed the parties to address me on the issue of stay, pending the hearing and determination of the review application.

9. I heard Submissions from Mr. Kuloba for the 1st applicant, Mr. Simiyu for Anacklet Biket as interested party, also holding brief for Mr. Jaoko for Ole Kasaine, and Mr. Momanyi for the DPP.

10. Having considered the submissions, the only issue for determination is whether there should be stay of proceedings of the trial court proceedings pending the hearing and determination of the application for Revision.

11. It was argued for the applicant and interested parties that there was need to stay the proceedings set to take place on May 13, 2022before the learned trial magistrate. That on that day the matter comes for pre-trial directions and the fixing of hearing dates. That if the stay is not granted, and the pre-trial directions are taken, and hearing dates are fixed, then the application for review of the Ruling of April 8, 2022will be rendered superfluous.

12. It is argued that the trial court, arriving at its Ruling ofApril 8, 2022 did not proceed regularly. That the irregularity arose out of the proceedings where the applicants made an application for certain witnesses to be called during the hearing of the application by DPP. That the court proceeded without calling these witnesses. That the fact that the prosecution had failed to call these witnesses then the court was bound to make an adverse inference as perWaithaka v Republic(cited by Simiyu but citation not supplied).

13. That the trial court had also observed that the 2 witnesses would be the court’s witnesses. That the court’s failure to follow through its own directions rendered the proceedings irregular and that this was prejudicial to the accused persons; that the insinuation of witness tampering that led to the variation of bail terms laid a basis for further variation of the bond terms.

14. The prosecution through Mr. Momanyi opposed the application that the state would suffer prejudice in that since August 2020 the matter had never taken off. That this was indeed a matter of public interest and any stay would be contrary to article 50 of the Constitution which envisages expeditious proceeding and disposal of cases. That the proceedings of May 13, 2022 for pre-trial directions would not be pre-judicial to the defence. That even if the case was to proceed for hearing before the lower court the application for revision of the Ruling of April 8, 2022 would not be rendered superfluous. That the irregularity alluded to by the defence with respect to the two (2) witnesses, was of their making as they had applied to call two (2) witnesses. That the prosecution had not intended to call the two (2) witnesses and had even closed its case.

15. Mr. Momanyi’s other submissions went into the merits of the application. However, he also submitted that the defence was had been agreeable to the matter proceeding without the two (2) witnesses and for the court to proceed to deliver its Ruling with the evidence that had already been given by the other witnesses.

16. In their rejoinder Mr. Kuloba and Mr. Simiyu, urged the court to find that it would not be proper for the trial court to proceed when its proceedings were already tainted with irregularity.

17. The question then is: What is this court being asked to stay?Answer: - The proceedings that will take place on May 13, 2022, which proceedings are for the purpose of doing two things; Take Pre-trial directions

The fixing of hearing dates

18. The question is, how are these proceedings pre-judicial with respect to an application for revision that relates to the accused persons’ bond terms?

19. In Goddy Mwakio andanother vs Republic [2011] eKLR the Court of Appeal held that an;“order for stay of proceedings stay of criminal proceedings is made sparingly and only in exceptional circumstances… the order is not given as a matter of course.”

20. It is my considered view that the proceedings of May 13, 2022 will not in any way prejudice the accused persons herein because they are pre-trial directions, to determine how the case will proceed. The subject matter of the application for revision is the Ruling of April 8, 2022. That Ruling was about the review of accused person’s bond terms. The bond terms though with new conditions are still in place, hence, I am not in agreement with the applicants that their Application will be rendered superfluous if the proceedings of May 13, 2022are not stayed.

21. The application is therefore refused.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 11TH DAY OF MAY 2022. Mumbua T. Matheka,Judge.CA EdnaKuloba for ApplicantMomanyi for RespondentODPP NakuruNchoe Jaoko &Co Advocates for interested partyMusyoki Murambi & Associates Advocates