[2022] KEHC 751 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYAAT NAIROBI

MISC. CRIMINAL APPLN. NO. E125 OF 2021

WMH.............................................................................................. APPLICANT

VERSUS

REPUBLIC .............................................................................. RESPONDENT

RULING

1. The applicant, WMH, faces two counts in Makadara Chief Magistrate’s Court Sexual Offence Criminal Case No. 80 of 2018. In the main count, he is charged with the offence of incest contrary to Section 20 (1) of the Sexual Offences Actwhile in the alternative count, he is charged with the offence of committing an indecent act with a child contrary to Section 11 (1) of the same Act.

2. In his Notice of Motion dated 31st March 2021, the applicant avers that upon denying the aforesaid charges, the trial court granted him a bond of KShs.300,000 without the alternative of a cash bail and that hearing proceeded with one witness before he was supplied with witness statements; that his application to have the said witness recalled was rejected by the trial court.

He therefore prayed that the bond terms ordered by the trial court be revised and be substituted with an affordable cash bail and that this court orders that his trial starts de novo.

3. The application was argued orally before me by the applicant who appeared in person and learned prosecuting counsel Ms Chege who appeared for the respondent.

In his submissions in support of the application, the applicant re-iterated his prayers and explained why he needed the bond terms reviewed stating that he was unable to comply with the terms set by the trial court as he was unable to provide a surety. He also prayed for recalling of the complainant because he had not been served with witness statements before she testified.

4. In opposing the application, Ms Chege submitted that in as much as the presumption of innocence applied to the applicant, the safety of the victim had to considered especially in this case where the applicant was charged with the offence of incest. Further, Ms Chege submitted that the trial court only made orders that the applicant could revisit his application for bond after the victim had testified which she had already done.

5. With regard to the applicant’s second prayer seeking that his case should start de novo, Ms Chege submitted that from the trial court proceedings, there was no evidence whether or not the applicant was supplied with witness statements. She stated that the respondent was ready to supply the applicant with all witness statements in compliance with its duty of disclosure. She urged the court to decline to order that the applicant’s case starts afresh noting that the application ought to have been made to the trial court and not to this court.

In a nutshell, counsel urged me to dismiss the entire application for lack of merit.

6. I have carefully considered the application and the rival oral submissions made by both parties. I have also read the original record of the trial court. Having done so, I find that the only issue for my determination is whether the application meets the threshold for the exercise of this court’s revisional jurisdiction.

7. The revisional jurisdiction of this court is donated by Section 362as read withSection 364of the Criminal Procedure Code.

In addition, regarding applications to revise bond terms granted by a subordinate court, Section 123 (3) of the Criminal Procedure Code (CPC)which is the statutory provision that provides for the right of an accused person to bail/bond pending trial gives the High Court power to review bond terms set by the lower court. The provision states as follows:

“The High Court may in any case direct that an accused person be admitted to bail or that bail required by a subordinate court or police officer be reduced.”

8. In its general supervisory jurisdiction set out under Article 165 (6)and(7) of the Constitution of Kenya 2010, the High Court has wide and unfettered discretion to call for the record of any proceedings before the subordinate court or before any person, body or authority and to make any order or give any direction it considers appropriate for the fair administration of justice. This is however not the case where the court’s revisional jurisdiction is concerned.

9. A reading of Section 362 of the Criminal Procedure Codeleaves no doubt that the High Court’s revisional jurisdiction is limited to satisfying itself as to the correctness, propriety or legality of any finding, sentence or order made by the trial court.

In other words, unlike in the exercise of its supervisory jurisdiction under Article 165 (6) and (7)of theConstitution where the court can intervene and may make any orders in the interest of justice, the court when exercising its revisional jurisdiction is confined to interfering with orders or decisions made by a trial court only if it was satisfied that the impugned order, finding or decision was incorrect, illegal or lacked propriety.

10. The Supreme Court of India in Veerappa Pillai V Raman & Raman Ltd, 1952 AIR when discussing the parameters of the court’s revisional jurisdiction had this to say:

“The supervisory powers is obviously intended to enable the High court use them in grave cases where the subordinate tribunal or bodies or officer acts wholly without jurisdiction or excess of it or in violation of the principles of natural justice or refuses to exercise jurisdiction vested in them or there is an apparent error on the face the record and such action, omission, error or excess has resulted in manifest injustice. However extensive the jurisdiction may be, it seems to us that it is not so wide and large as to enable the High Court to convert itself into a Court of Appeal and examine for itself the correctness of the decision impugned and decide what the proper view on the order be made. …..”

11. In the present application, although the applicant seeks revision of orders allegedly made by the trial court granting him bond of KShs.300,000 with a surety of same amount, my reading of the proceedings before the trial court does not show that any such order exists.

12. The court record shows that when the applicant was first arraigned before it on 4th May 2018 for plea, he denied the charges. The prosecution opposed his release on bond pending trial arguing that he faced a charge of incest and he lived in the same house with the complainant. The prosecution prayed that the applicant be admitted to bond only after the complainant had testified.

13. The trial court in a brief ruling stated as follows:

“The application not to grant any bond to the accused is considered. The same is granted as prayed.”

This means that the court declined to admit the applicant to bond/bail until after the complainant had testified.

Given the above facts, it is clear that the trial court did not make the order attributed to it by the applicant.

14. As demonstrated earlier, the court’s revisional jurisdiction can only be exercised with respect to an order, finding or decision made by a lower court which the court on its own motion or upon application by an aggrieved party is satisfied that the order, finding or decision is illegal or contains errors of law or was made as a result of impropriety or irregularity in the proceedings in question.

15. In this case, since the order sought to be revised does not exist and is therefore not part of the proceedings before the trial court, there is nothing for this court to revise.

The applicant did not impugn the order made by the learned trial magistrate denying him bond or bail till the complainant testified. Be that as it may, it is my view that the said decision was justified considering that the applicant was facing inter alia, a charge of incest and there was an undisputed claim by the prosecution that the applicant and the complainant were by then living in the same house.

16. Given that the order the applicant wanted to have revised does not exist, I am satisfied that the applicant failed to properly invoke the court’s revisional jurisdiction in the first limb of his application. However, all is not lost as he can revisit his bail application before the trial court now that the complainant has already testified.

17. Regarding the prayer seeking that his case starts de novo, a perusal of the lower court’s record shows that on 4th May, 2018 and on 4th April, 2019, the court ordered, upon the applicant’s application, that he be supplied with witness statements. The order on 4th May, 2018 was made way before the complainant testified. The complainant testified on 14th August 2018 and before her testimony, the applicant did not complain that he had not been furnished with witness statements. Instead, he participated in the hearing and cross examined the complainant on crucial matters pertaining to the prosecution case.

18. Even if the applicant had not been supplied with the statements before the complainant testified and he wanted to have the witness recalled, for instance, for further cross examination, he ought to have made that application before the trial court which was seized of the matter before approaching this court. It was only after the trial court had determined the application and the applicant was aggrieved by its decision that he should have sought this court’s intervention.

19. Contrary to the applicant’s contention, the court record confirms that he did not make such an application before the trial court and it was dismissed. His claim to this effect is apparently false.

20. As stated earlier, the primary objective of the court’s power of revision is to correct glaring and manifest errors or illegalities in the proceedings before a trial court but not to micro manage the trial court in the conduct of its proceedings. The applicant ought to have exhausted his remedies before the trial court before invoking this court’s supervisory jurisdiction.

21. In view of the foregoing, I am satisfied that the instant application has failed to meet the threshold of revision as set out in Section 362 of the CPC. It is my finding that the application is devoid of merit and it is hereby dismissed.

22. Consequently, I order that the lower court file be remitted to the trial court for continuation of the trial on a priority basis given the age of the case. I also order the prosecution to furnish the applicant with all witness statements and documents to be relied upon during the trial if the same had not been previously supplied to the applicant. This to be done within the next 14 days without fail.

It is so ordered.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 17TH DAY OF MARCH 2022.

C. W. GITHUA

JUDGE

IN THE PRESENCE OF:

APPLICANT PRESENT

MS ADHIAMBO FOR THE RESPONDENT

MS KARWITHA: COURT ASSISTANT