[2020] KEHC 1418 (KLR)
The court held that its revisionary jurisdiction under section 362 of the Criminal Procedure Code is confined to correcting errors or improprieties in the lower court's orders and does not permit the introduction or consideration of new facts not previously before the trial court. Since the supporting affidavit by...
Source-derived case information.
- Citation
- [2020] KEHC 1418 (KLR)
- Parties
- Applicant: Winnie Jebichi Koech; Applicant: Caroline Chemtahi Koech; Respondent: Director of Public Prosecutions; Respondent: Standard Chartered Bank of Kenya
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application 165 of 2020
- Procedural Posture
- Criminal Miscellaneous Application / Interlocutory Ruling on Application for Cross Examination of Deponent and Revision of Lower Court Orders
- Outcome
- Application for cross-examination denied; matter to proceed by way of submissions; hearing adjourned.
- Legal Topics
- Revision Jurisdiction, Cross Examination of Affidavit, Procedural Fairness
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Winnie Jebichi Koech
Applicant
Caroline Chemtahi Koech
Applicant
Director of Public Prosecutions
Respondent
Standard Chartered Bank of Kenya
Respondent
Procedural Posture
Criminal Miscellaneous Application / Interlocutory Ruling on Application for Cross Examination of Deponent and Revision of Lower Court Orders
Legal Issues
- 1 Whether the High Court can consider new facts in a revision application under section 362 of the Criminal Procedure Code.
- 2 Whether the deponent of the supporting affidavit should be cross-examined on alleged new facts.
Ratio Decidendi
The court held that its revisionary jurisdiction under section 362 of the Criminal Procedure Code is confined to correcting errors or improprieties in the lower court's orders and does not permit the introduction or consideration of new facts not previously before the trial court. Since the supporting affidavit by the applicant's counsel would not be used to introduce new facts, there was no basis for the cross-examination sought by the interested party. The application for cross-examination was therefore denied, and the matter was ordered to proceed by way of submissions.
Court Disposition
Application for cross-examination denied; matter to proceed by way of submissions; hearing adjourned.
Orders
- The application for cross-examination of the deponent is denied.
- The application shall proceed by way of submissions.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL MISC. APPLICATION CASE NO.165 OF 2020
WINNIE JEBICHI KOECH..............................................................................APPLICANT
CAROLINE CHEMTAHI KOECH..................................................................APPLICANT
VERSUS
DIRECTOR OF PUBLIC PROSECUTIONS...............................................RESPONDENT
STANDARD CHARTERED BANK OF KENYA …………………..……..RESPONDENT
RULING
I have considered the submissions of all the parties herein, particularly on the plea by the interested party to have the deponent of the supporting affidavit, who is counsel for the applicant, to be cross-examined on the affidavit. That the affidavit raises new issues of fact necessitating cross examination of the deponent. This is an application seeking a revision of the orders of the lower court.
Under section 362 of the Criminal Procedure Code, Cap 25, the powers of this court to revise the orders of the lower court are meant to correct any error or impropriety in the lower courts orders. It is not to consider new facts that were not before the lower court. Such matters of facts can only be dealt with by the trial court.
To that extent, this court shall not consider any new matters of facts that may be raised by the applicant in the supporting affidavit. I so find. The application made by the interested party was based on the fear that new facts may be considered in this application. With the finding that no such new facts would be canvassed in this application, it follows that there is no remaining basis for the cross examination sought. I order therefore that this application to proceed by way of submissions.
Since the respondent is not ready to proceed, the application is adjourned of hearing date to be fixed. Hearing 6. 10. 2020
HON. JUSTICE D. OGEMBO OGOLA
30. 9.2020