[2022] KEHC 14975 (KLR)

Wangare v Republic (Criminal Revision E236 of 2022) [2022] KEHC 14975 (KLR) (Crim) (19 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14975 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Revision E236 of 2022

JM Bwonwong'a, J

October 19, 2022

Between

Antony Kimani Wangare

Applicant

and

Republic

Respondent

Ruling

The case for the accused/applicant 1. Pursuant to sections 362 and 364 of the Criminal Procedure Code (Cap 75) Laws of Kenya and article 50 and 165 (6) (7) of the 2010 Constitution of Kenya, the applicant has applied for revision of the orders of the lower court, in which that court on September 9, 2022 ordered for the arrest of the victim’s mother and all witnesses to be brought to court for a special hearing on September 14, 2022.

2. Additionally, that court also ordered for the towing of motor vehicle KCH XXXX Toyota Noah to Makadara law courts, which also is sought to be revised.

3. Apart from the foregoing, the accused also seeks the following orders from this court.1. The unconditional release of motor vehicle KCH XXXH Toyota Noah to the owner Emily Boro Ng’endo “as the same can be produced through photographic Evidence.”2. An order directing the Hon. Monica N. Kivuti, SPM, recuse herself from presiding over the case and that the case be transferred to another impartial court of competent jurisdiction.3. An order to make provision for costs.

4. Furthermore, the application is based on 13 grounds which appear on the face of the notice of mention, with the following being the major grounds. The accused is charged with the offence of defilement with an alternative offence of committing an indecent act. On April 14, 2022 the court ordered for the release of motor vehicle KCH xxxx Toyota Noah on April 8, 2022 upon the application of the advocate for the accused. On April 21, 2022 Mr. Karoki was sent by Mr. G. Kimani advocate to hold his brief and to get another date in June but the trial court insisted on a special hearing and gave a hearing date for May 5, 2022, without considering the predicament of Mr. Karoki.

5. On May 5, 2022 and May 26, 2022 the motor vehicle KCH 9XXH Toyota Noah was not produced in court. As a result, the court fixed the case for hearing on July 20, 20202. The learned trial magistrate was also on leave. Again on July 20, 2022 Mr. Kimani was unwell and did not attend court. As a result, the case was fixed for hearing on September 9, 2022.

6. On September 9, 2022 the court on its own motion visited Marurui police station, where all witnesses were bonded but the mother of the victim and the victim were not in court/police station. The court was told that the mother of the victim and the victim were ill and were in Kijabe mission hospital. Even counsel (Ms. Grace Maina) holding watching brief for the victim confirmed the position. Notwithstanding that the court was possessed of that information, the court proceeded to issue warrants of arrest in respect of the mother of the victim as well as other three witnesses; who were ordered to appear in court on September 14, 2022.

7. The learned trial magistrate negatively accused the advocate for the accused that he was delaying the hearing of the case.

8. In his 16 paragraphs supporting affidavit the accused has deposed to the same matters that are raised as grounds in his notice of motion, which I hereby decline to replicate.

9. The accused filed a 20 paragraphs further affidavit dated September 28, 2022 in which he has deposed to the same matters as in his main supporting affidavit except for the following major matters. He deposed that the grounds of opposition filed by counsel for the respondent lack merit, are an afterthought, frivolous and misconceived and should be dismissed.

10. He has further deposed that on September 14, 2022 the hearing proceeded with four witnesses who testified and the then advocate of the accused (Mr. Kamau Kennedy Maingi) was not given the opportunity to cross examine them. This was after the court refused the adjournment application of Mr. Kamau Kennedy Maingi. Mr. Kamau Kennedy Maingi had been sent to hold brief for Mr Kimani. He has also deposed that on September 14, 2022 had been sent by Mr. Kimani to hold his brief as his younger daughter was unwell and requested Mr. Kamau Kennedy Maingi to have the matter adjourned; which adjournment was rejected.

11. The accused has also deposed that the bias of the court is evidenced by the act of the learned magistrate when he hurriedly took out all the other 26 matters in her cause list just to hear the case of the accused.

12. The accused has therefore deposed that the learned magistrate is biased against him and requests the court to transfer the case another court.

The supplementary affidavit of Mr. Kamau Kennedy Maingi 13. He has deposed to the following major matters in his supplementary affidavit. He had been sent by Mr. G. Kimani for the accused to hold his brief for adjournment purposes; since he (Mr. G. Kimani) was unwell and there was a pending application in the High Court. Additionally, he has also deposed that his instructions were limited and could not proceed further. The accused was not able to cross examine the witnesses as his legal knowledge was limited.

14. Furthermore, the trial court then ordered all witnesses against whom she had issued warrants of arrest were to testify on that day.

The case for the respondent 15. The respondent has filed six grounds in opposition to the application; with the following being the major grounds. The application lacks merit. The accused has not demonstrated that his fair trial rights were breached. The trial court exercised its mandate to deliver an expeditious trial.

Issues for determination 16. I have considered the affidavits of the accused and his counsel. I have also considered the applicable law. As a result, I find the following to be issues for determination.1 Whether the article 50 (2) rights of the accused to a fair trial were breached.

17. I find that the advocate for the accused (Mr. G. Kimani) was unable to attend court on September 14, 2022, because he was either unwell or his daughter was unwell. He sent Mr Kamau Kennedy Maingi to the trial court to hold his brief. Mr. Kamau Kennedy Maingi proceeded to court and informed that court accordingly. The trial court declined to grant an adjournment and ordered the hearing to proceed. Mr. Kamau Kennedy Maingi was unable to proceed since his instructions were limited. 18. Four witnesses testified and were uncross examined.

19. In the circumstances, I find that the rights of the accused under article 50 (2) of the Constitution were infringed, since the right to challenge the prosecution evidence of those four witnesses was not subjected to cross examination as required under article 50 (2) (k) of the 2010 Constitution of Kenya.

20. I further find that the prosecution’s grounds of opposition, which are not supported by any affidavit evidence are without merit. I therefore dismiss them for that very reason.

21. The other issues raised by the parties are academic/moot and I hereby decline to consider them.

22. Consequently, I find that the accused will not have a fair trial before the learned trial magistrate with the result that it is hereby ordered transferred to another magistrate of competent jurisdiction to try it pursuant to this court’s powers under section 81 of the Criminal Procedure Code (Cap 75) Laws of Kenya.

RULING SIGNED, DATED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 19TH OF OCTOBER 2022. J M BWONWONG’AJUDGEIn the presence of-Mr. Kinyua: Court AssistantMr G. Kimani for the accused/applicantMr. Kiragu for the Republic/Respondent