[2022] KEHC 1023 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

ANTI-CORRUPTION AND ECONOMIC CRIMES DIVISION

ACEC MISC NO. E032 OF 2021

ZACHARIA OKOTH OBADO.................................................................................... APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS................................................RESPONDENT

RULING

1. By the Notice of Motion dated 9th November 2021 which is brought under Article 165(6)and(7) of the Constitution andSection 362of theCriminal Procedure Codethe applicant seeks the following orders:

“1. Spent.

2. This Honourable Court be pleased to call for and examine the record of the criminal proceedings in Anti-Corruption Criminal Case No. E018 of 2020 pending in the subordinate court for the purpose of satisfying itself as to the constitutionality, legality; correctness; propriety or regularity of the proceedings and the findings and orders made by the subordinate court.

3. This Honourable Court be pleased to stay any further proceedings in Anti-Corruption Criminal Case No. E018 of 2020, pending the hearing and determination of this application.

4. Pending inter parties hearing, this Honourable Court be pleased to order on an ex-parte basis, stay of any further proceedings in Anti-Corruption Criminal Case No. E018 of 2020.

5. This Honourable Court do exercise its supervisory and revisionary jurisdiction to revise; vacate; discharge; vary and o set aside the findings of the trial court.

6. Any other or further orders that this Honourable Court may deem fit and just to issue in the circumstances of the case.”

2. The application is premised on the grounds that:

“a. The Applicant is charged with nineteen (19) counts of various corruption related offences, in which he pleaded not guilty on 21st October 2021.

b. The prosecution sought to amend the charge sheet, an application which was opposed by the Applicant. On 19th October 2021, the trial court ruled that the Applicant can take a plea on unsigned amended charge sheet.

c. The charges were instituted by a body which does not have the constitutional competency to institute criminal charges.

d. The constitutional authority to institute criminal proceedings is vested in the Director of Public Prosecutions ("the DPP") by Article 157 (6) (a) of the Constitution of Kenya, 2010 ("the Constitution") and not the Ethics· and Anti-Corruption Commission ("the EACC") or the Kenya Police.

e. In subordinate courts, the DPP institutes criminal proceedings by lodging a charge sheet signed and authorized by his office.

f. The DPP issued the Guidelines on the Decision to Charge, 2019 ("the Guidelines") which contain elaborate details as to the drafting; signing and lodging in court charge sheets. The Guidelines also contain a sample charge sheet.

g. The charge sheet before the trial court does not conform to the constitutional requirements or the Guidelines, which mirror the constitutional requirements.

h. The charge sheet before the trial court emanates from the "Kenya Police" and is intended to be signed by the "officer in charge EACC Police Station.

i. The stamp of the DPP on the charge sheet is no more than acknowledgement of receipt of the amended draft charge sheet from EACC Police Station.

j. The trial court treated constitutional provisions casually and with no intend to "respect, uphold and defend the Constitution".

k. The trial court found, without any legal basis whatsoever, that the amended charge sheet was not a draft, because the words draft do not appear anywhere in the charge sheet, yet the charge sheet is not signed.

l. The Applicant's fair trial package under Article 50 (2) of the Constitution includes a trial where the prosecutor is independent of the investigative agency. The investigative body does not possess the necessary independence to institute criminal proceedings through lodging and signing charge sheets.”

3. The application is supported by the affidavit of Zacharia Okoth Obado, the Applicant (1st accused in the trial court) sworn on the 9th November 2021 where he deposes that on 19th October 2021 the trial court overruled his objection to the amended charge sheet which was instituted by the Kenya Police and which was not signed although it was intended to be signed by the officer in charge of Ethics and Anti-Corruption Commission police station and directed him to take plea on that charge sheet, which he did on 21st October 2021. Zachary Obado (the Applicant) deposes that the draft charge sheet emanated from the Kenya Police and bore two received stamps one for the subordinate court and the other for the Office of the Director of Public Prosecutions (DPP). He deposes that on 28th July 2020 the Director of Public Prosecutions issued Guidelines on the Decision to Charge which spelt out who was to sign a charge sheet and provided a sample charge sheet that mirrors the provisions of Article 157 (6)(a) of the Constitution. He deposes that he had a legitimate expectation that his prosecution would be instituted in accordance with the Constitution and the said Guidelines which were issued publicly by the Director of Public Prosecutions. He deposed therefore that the criminal proceedings founded on the amended charge sheet are unconstitutional, illegal, null and void for being instituted by institutions that lacked the constitutional mandate to do so and further that the trial court failed to ensure fair administration of justice by ordering him to take plea on a charge sheet which was not signed and which therefore was a draft charge sheet.

4. In his supplementary affidavit sworn on 22nd November 2021 in which he responds to issues raised in the respondent’s replying affidavit, the applicant deposes that his case is not whether the Amended charge sheet satisfied the provisions of Sections 134 to 137 of the Criminal Procedure Code (CPC) but that the charge sheet was not signed and also that the entity instituting the criminal proceedings does not have the requisite constitutional mandate to do so. He deposed that an accused is called upon to take plea on an amended charge sheet and therefore it should be signed and that the omission of a signature on the amended charge sheet rendered it a draft. He also deposed that the charge sheet is the instrument that institutes or commences a prosecution and it must therefore emanate from the office of the Director of Public Prosecutions. He also argued that contrary to the Guidelines on the Decision to Charge 2019 the amended charge sheet was not drafted by the prosecutor and that the respondent was reluctant to copy the sample charge sheet provided in it’s guidelines.

The Respondent’s case

5. The respondent opposed the application by way of a replying affidavit sworn by Evah Kanyuira, Principal Prosecution Counsel, where she deposed that the applicant has not proved that there was malice, illegality, irrationality, procedural impropriety or unreasonableness in the exercise of the Director of Public Prosecutions’ constitutional mandate to prosecute the applicant; that it was not demonstrated that the amended charge sheet does not comply with Sections 134 to 137of theCriminal Procedure Code for it to amount to a manifest error and that the court’s jurisdiction to grant stay orders must be exercised cautiously and exceptionally and further that an order of stay of proceedings in Milimani Anti - Corruption Criminal Case No. E018 of 2020: R - Vs. Zacharia Okoth Obado will defeat the prosecution of the criminal case.

6. Learned Counsel for the Respondent enumerated the circumstances culminating in the Amended charge sheet as follows:- that the Ethics and Anti-Corruption Commission conducted investigations into allegations of fraud and unlawful payments against the applicant and forwarded the inquiry file to the respondent in accordance with Section 35 of the Anti-Corruption and Economic Crimes Act and after reviewing of the inquiry file, the Director of Public Prosecutions found sufficient evidence to sustain charges against the Applicant and on 27th August 2020 the applicant and others were charged in Milimani Anti - Corruption Criminal Case No. E018 of 2020. Counsel deposes that upon further review of the evidence the Director of Public prosecution directed that the charge sheet be amended and on 24th September 2021, the respondent filed a Notice of Motion seeking to amend the charge sheet which application was allowed by the trial magistrate. Counsel deposes that the impugned amended charge sheet was stamped and signed by the designated prosecution counsel on the top right-hand corner and that the presence of the prosecution counsel in court was enough evidence that the decision to charge and the conduct of the matter was under the Director of Public Prosecutions. Counsel deposes that under Sections 214 and 134 to 137 of the Criminal Procedure Code there is no requirement for the OCS or OCPD to sign and rubber stamp the charge sheet and that since the accused persons were not arrested there was no need for signing by the officer in charge of Ethics and Anti-Corruption Commission police station. Counsel averred that there was an original charge sheet, pursuant to which the amendment was brought, that had been presented by the respondent and which was signed by the Office of the Director of Public Prosecutions and the officer in charge Ethics and Anti-Corruption Commission police station since the accused persons had to be processed at the police station before arraignment in court. Counsel stated that the purpose of a charge sheet is to inform the accused person of the charges as provided for under Section 134of the Criminal Procedure Code and that the accused persons pleaded not guilty an indication that the charges were clear to them and that the information therein was sufficient for them to understand the charges. Counsel averred that the Office of the Director of Public Prosecutions Guidelines on the Decision to Charge 2019 is intended to guide prosecutors on their duties and the factors to consider in exercise of prosecutorial discretion and that they are not exhaustive and must be read with applicable existing laws, regulations, policies and other guidelines. Counsel contended that moreover, the sample charge sheet annexed to the Decision to Charge Guidelines was in the process of being rolled out and the procedure currently being employed is contained in paragraph 4. 3 of the guidelines. Counsel urged this court to dismiss the application with costs in the interest of justice and the public as a whole and the Director of Public Prosecutions be allowed to proceed with the hearing in Milimani Anti - Corruption Criminal Case No. E018 of 2020.

7. The application was canvassed through written submissions.

Applicant’s submissions

8. The applicant framed two issues for determination and submitted on each separately. The issues framed by Learned Counsel for the applicant are:

a. Who can institute criminal proceedings

b. Who should sign a charge sheet

9. On the issue of institution of criminal proceedings, Learned Counsel for the Applicant submitted that a charge sheet is the instrument that institutes criminal proceedings and cited Sir James Fitzjames Stephen in A History of Criminal Law of Englandwhere it was stated that indictment is the foundation of the record in all criminal matters. Counsel submitted that because Sections 99 and 100 of the Evidence Act prohibits oral evidence to contradict written documents no explanation proffered by the respondent could characterise the Amended charge sheet as originating from the respondent and not from the Kenya Police. Counsel submitted that Article 157(6)(a)of the Constitution vests the power to institute and undertake criminal proceedings in the Director of Public Prosecutions and hence the unsigned amended charge sheet emanating from the Kenya Police violated the express provisions of the constitution and is null and void. Learned Counsel for the applicant asserted that the Director of Pubic Prosecutions Guidelines on the Decision to Charge 2019 issued directions on preparing, stamping, and signing of a charge sheet and also provided a sample charge sheet and that the amended charge sheet was not compliant with those Guidelines issued pursuant to Section 50 of the Office of the Director of Public Prosecutions (ODPP) Act. Counsel cited the case of Geoffrey K. Sang v Director of Public Prosecutions & 4 Others [2020] eKLRwhere the court held that neither the Directorate of Criminal Investigations nor the Inspector General of Police has any prosecutorial powers as such power is vested in the Office of the Director of Public Prosecutions by the Constitution.

10. On issue No. 2: Signing of a charge sheet by a proper officer, learned Counsel for the applicant submitted that Section 89(4) of the Criminal Procedure Code should be construed in light of Section 7(1) of the Sixth Schedule of the Constitution so that the word “police officer” is replaced with the “Director of Public Prosecutions” or “officers acting under the authority of the Director of Public Prosecutions” hence making the proper officer to sign a charge sheet to be the Director of Public Prosecutions or officers subordinate to the Director of Public Prosecutions. Counsel cited the case of R vs Parker [1977] VicRp 3; [1977] VR 22where it was observed that the purpose of the signature is to identify the prosecutor and stated that from the signature the question of who is prosecuting the criminal proceedings must be manifest to all. Counsel also relied on the House of Lords decision in the case of R v McDaid [2007] UKHLwhere Lord Bingham of Cornhill opined: -

“ 5. …..There is, as the Court of Appeal observed in R v Stewart (1990) 91 Cr App at 301 at 304, 306, a fundamental distinction between the preferment of a bill of indictment and the signing of the bill; it is the signing of the bill, which converts it into an indictment.

9. ……The Court found considerable value in an unreported judgment of the Court of Appeal in R v Hodges (George David), 5 June 1981, in which Peter Pain J had said:-

“It seems to us that it is impossible for a criminal trial to start without there being a valid indictment to which the defendant can plead, and that the bill of indictment does not become an indictment until it is signed.”

11. Counsel also relied on the case of Regina Darko Janceski [2005] NS WCCA 281 where ruling on an indictment which had not been signed was invalidated the Court of Appeal in Australia observed: -

“97. His Honour’s analysis indicates that s126 had as its primary purpose the objective ensuring that the new office of the Director of Public Prosecutions, subject only to the Attorney General’s powers, would be in control of the process of instituting criminal proceedings or indictment and that that would be manifest to all parties to the proceedings. This purpose requires precise compliance with the formulated s stipulation in s126 (1)(b) (iii) and s126(2). For this reason, I have come to the conclusion that Parliament did intend that the defect in compliance which has occurred in this case should lead to invalidity. “

12. Learned Counsel urged this court to hold that the police have no power or authority to sign a charge sheet and that any charge sheet signed by police officers is illegal, invalid and void ab initio. Counsel urged this court to allow the application dated 9th November 2021.

The submissions of 8th, 9th, 10th, 11th, 13th, 14th, 15th and 16th accused persons

13. The 8th, 9th, 10th, 11th, 13th, 14th, 15th and 16th filed submissions in support of the application by the Applicant herein. Their Counsel framed 2 issues namely:-

1) Who has the power to institute criminal proceedings?

2) Who has the mandate to sign the charge sheet?

14. Relying on the case of Geoffrey K. Sang v Director of Public Prosecutions & 4 others [2020] eKLR Counsel for the 8th to 16th accused persons submitted that the Kenya Police cannot institute criminal proceedings as the authority to do so solely lies with the Director of Public Prosecutions. Counsel contended that in light of the decision in the Geoffrey K. Sang case (supra) the criminal proceedings instituted against the accused persons through the amended charge sheet are unconstitutional, illegal, null and void for being instituted by institutions that do not have constitutional mandate.

15. On who has the mandate to sign the charge sheet Counsel submitted that Section 89(4) of the Criminal Procedure Code predates the constitution of Kenya 2010 and the same should be construed with the alterations and adaptations necessary to harmonise it with the Constitution hence the word “police officer” in that section should be replaced with the “Director of Public Prosecutions or officers acting under his authority” so that the proper person to sign a charge sheet is the Director of Public Prosecutions and not the investigating officer or any other officer. Counsel contended that the amended charge sheet does not bear a signature of the person with the lawful authority to sign it and it cannot be lawfully used to institute a case against the applicants. Counsel further submitted that the charge sheet in the Director of Public Prosecutions Guidelines on the Decision to Charge 2019 has a place designated for signing by the Director of Public Prosecutions and unless it is signed by an officer from the Office of the Director of Public Prosecutions then the charge is merely a piece of paper. Counsel asserted that without a charge sheet a prosecution cannot commence and therefore the amended charge should be struck out with the consequence that this application is allowed.

Respondent’s submissions

16. Mr. Mutellah learned Counsel for the prosecution framed three issues namely:

a. Whether the Amended charge sheet as filed before court is proper.

b. Whether the applicant’s rights to a fair trial enshrined in Article 50(2) of the Constitution was violated or threatened.

c. Whether the applicant meets the threshold for the grant of revisionary orders under Section 163 of the Criminal Procedure Code.

17. On the first issue learned Counsel for the Respondent submitted that the submission by the applicant in regard to this issue is contradictory as first the applicant contends that the charge sheet is defective as it was not signed then changes to assert that it was signed by a person without authority to do so. While agreeing with Counsel for the applicant that the mandate to prosecute is vested in the Director of Public Prosecutions Counsel for the respondent submitted that such power may be exercised by a prosecution counsel or a member of staff of the Office of the Director of Public Prosecutions as provided in Section 22 (2) of the Office of the Director of Public Prosecutions Act. Counsel contended that institution of criminal charges is commenced by the filing of a charge sheet in court duly approved by the Director of Public Prosecutions and to which an accused person takes plea and the yardstick to measure whether a charge sheet is proper is the Constitution and the Criminal Procedure Code. Citing Article 49(9) and 50(2) (b), (n) (i) & (ii) of the Constitution and Section 134 of the Criminal Procedure CodeCounsel submitted that the charge sheet filed in the trial court met all the requirements under the law. Counsel also relied on the case of Leonard Kipkemoi v Republic [2018] eKLR where the court relied on the case of BND v Republic [2017] eKLRwhere the Judge laid the test for determining whether the charge sheet was defective and the court held that the test was a substantive one which was whether the accused was charged with an offence known in law which was disclosed with sufficient accuracy to give the accused adequate notice of charges facing him. Counsel contended that the charge sheet in the Guidelines to Decision to Charge 2019 neither contains a provision for the signature of any police officer nor does it bear the stamp of any police station and stated that the sample charge annexed to the guidelines was in the process of being rolled out and is to be the subject of stakeholder validation and is not therefore exhaustive. Counsel submitted that the impugned charge sheet is stamped by the Office of the Director of Public Prosecutions at the top right hand corner and that the stamp is sufficient to show that the decision to charge was made by the Office of the Director of Public Prosecutions but not the police. That moreover the case is being prosecuted by a prosecution team from the office of the Director of Public Prosecutions. Counsel asserted that there was no error on the face of the proceedings in the trial court to warrant a correction by way of revision by this Court as the charge sheet complied with the Constitution and Sections 134 to 137 of the Criminal Procedure Code Cap 75Laws of Kenya.

18. On whether the applicant’s right to a fair trial enshrined in Article 50 (2) of the Constitution was violated, Counsel submitted that the applicant had failed to particularize and furnish proof of how their constitutional rights to fair hearing had been violated or were likely to be violated. He contended that the information in the charge sheet must be brought to the attention of the accused person at the time of taking plea hence the procedure set out in Section 207 of the Criminal Procedure Code and therefore the fact that the accused person pleaded not guilty to the charges as read to him was an indication that the information in the charge was sufficient as to the nature of the offence and there was no injustice suffered or intended to be induced upon the applicant.

19. On the third issue, Mr. Mutellah submitted that the revisionary power of this court is anchored on Article 165(6) (7) of the Constitution and Sections 362 and 364 (1)of the Criminal Procedure Code and that revision is a matter of judicial discretion which must be exercised judicially. Counsel cited the case of George Aladwa Omwera v Republic [2016] eKLRwhere it was held that revisional jurisdiction was only to be exercised to correct a manifest error in the orders of a trial court but not where the trial court has taken the wrong view of the law or misapprehended the evidence tendered. Counsel submitted that the jurisdiction of this court was wrongly invoked to overwhelm the court with applications so as to micromanage the trial court in order to hinder it from proceeding with the case and that the applicant had failed to meet the threshold for grant of the orders sought as he has not proved any illegality, impropriety or incorrectness. Counsel urged this court to dismiss this application and in the public interest and the interest of justice allow the respondent to proceed with the hearing of the criminal case.

Analysis and determination

20. The application herein challenges the order of the trial court issued on 19th October 2021 which directed the applicant to take plea on an amended charge sheet. The gist of the application is that the said amended charge sheet was not signed by the Director of Public Prosecutions or officers acting under his authority and that therefore there are no valid charges against the Applicant and his co-accused persons and hence the prosecution ought to be halted.

21. The Applicant has asked this court to exercise its supervisory jurisdictions underArticle 165 (6)and(7)of theConstitutionand its revision powers underSection 362of theCriminal Procedure Codeto quash that order. Article 165 (6) and (7) of the Constitution provide as follows:

“(6) The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.

(7) For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.”

22. Section 362 of the Criminal Procedure Code provides that:

“The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.”

23. The issue of the High Court’s supervisory jurisdiction over subordinate courts has been canvassed in various cases. In the Supreme Court of India case of Veerappa Pillai vs Raman & Raman Ltd and Others 1952 AIR 192cited with approval in the case of George Aladwa Omwera Vs R [2016] eKLR it was held that:

“The supervisory powers are 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 of 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….”

24. In the case of Republic v James Kiarie Mutungei [2017] eKLR the court stated:-

“…….. The enactment of Section 362 as read with Section 364 of the code is substantially part of the provisions of the statute to actualize the provisions of Article 165 (6) and (7) of the Constitution.

The rationale of the High Court as a revisionary authority can be initiated by an aggrieved party, or suo-moto made by the court itself, call for the record relating to the order passed or proceedings in order to satisfy itself as to the legality, or propriety, correctness of the order in question. The scope of revision therefore is more restrictive in comparison with the appellate jurisdiction which requires the high court to rehear the case and evaluate the evidence in totality by the lower court to come with a decision on the merits. ....

As can be seen from this analysis the function of the court under Section 362 of the Criminal Procedure Code as read with Section 364 is to enable the court to scrutinize and examine the correctness of facts of a subordinate court or tribunal so as to make a finding on legality or propriety. Legality means lawfulness, strict adherence to law, correctness and propriety ordinarily having the same meaning... The interference under Section 362 by this court on revision can only be justified if the impugned decision is grossly erroneous, to justness appropriateness (sic) and suitability to trial. …….”

25. Bearing the above principles in mind I decipher the real issue for determination to be whether the trial magistrate’s order directing the Applicant and his co-accused to take plea on the Amended Charge Sheet was incorrect, illegal or irregular or whether it was in excess of or without jurisdiction.

26. The first complaint by the Applicant is that the amended charge sheet was drafted by the Kenya police and that it is not stamped and signed by the Director of Public Prosecutions or a prosecution Counsel from the Director of Public Prosecutions’ office and that therefore the charges he faces were not instituted by the Director of Public Prosecutions as required by Article 157 of the Constitution. The Applicant disputes that the rubber stamp and signature on the extreme top right hand side of the charge-sheet denotes the Director of Public Prosecution’s signature and approval of the charges. On its part, the Respondent argues that the said rubber stamp and signature signify that the amended charge sheet was duly stamped and signed by the Director of Public Prosecutions signifying that the Office of the Director of Public Prosecutions approved the charges. Counsel for the Respondent also argues that the Director of Public Prosecutions made the decision to have the charge sheet amended and has conduct of the suit meaning that the charges are lawfully brought against the Applicant.

27. It is not in doubt that the mandate to institute criminal prosecutions other than in a court martial solely lies with the Director of Public Prosecutions. Article 157 (6) of the Constitution states that: -

“The Director of Public Prosecutions shall exercise State powers of prosecution and may—

(a) institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed”

28. Similarly Section 23(1) of the Office Of The Director Of Public Prosecutions Actwhich was enacted to give effect to Article 157of theConstitutionstates that: -

“Notwithstanding the provisions of any other law, it shall be the function of the Director to —

(a) decide to prosecute or not to prosecute in relation to an offence;

(b) institute, conduct and control prosecutions for any offence; carry out any necessary functions incidental to instituting and conducting such criminal prosecutions”

29. In the present case, it is not in dispute that the Respondent received an inquiry file from the Ethics and Anti-Corruption Commission in regard to the Applicant and other accused persons and that upon considering the same, the Respondent decided to prosecute the Applicant and the accused persons pursuant to Section 23(1) (a) of the Office of the Director of Public Prosecutions Act. It is also not disputed that the Applicant and his co-accused were duly arraigned before a court of law on the 27th August 2020 whereupon the charges were read to them and that they pleaded not guilty to the charges. There is also no challenge to the fact that the case pending before the trial court is being prosecuted by an officer from the Office of the Director of Public Prosecutions/Respondent and that it is the prosecutor who applied to have the original charge sheet amended. The case of Geoffrey K. Sang v Director of Public Prosecutions & 4 Others (supra)cited by Counsel for the applicant must be distinguished from the facts in the present case because in that case it was clear that the Director of Criminal Investigations had charged the accused persons without the consent of the Director of Public Prosecutions.This was evidenced by the fact that there were no officers from the Director of Public Prosecutionsat the plea taking stage and it was the investigating officer who sought an extension of time for the taking of the plea by the accused persons. In this case the Office of the Director of Public Prosecutions were involved at the plea taking stage thereby making it clear that the arraignment and prosecution of the Applicant and his co-accused was sanctioned by that office. Indeed, it is the officers of the Office of the Director of Public Prosecutions that sought to amend the charges facing the Applicant and his co-accused and who lodged the impugned charge sheet.

30. This court has been urged to invalidate the proceedings anchored on the Amended Charge Sheet on the grounds that firstly the same is defective for not being signed by the Office of the Director of Public Prosecutions and secondly for not conforming to the Director of Public Prosecutions Guidelines on Decision to Charge. It is argued that the amended charge sheet is an affront of the Applicant’s right to fair trial for the above two reasons.

31. I have considered the above issues very carefully while keeping in mind the fact that there is no dispute that the prosecution against the Applicant and his co-accused is being conducted by the Office of the Director of Public Prosecutions. In regard to charges brought against accused persons my first point of call in so doing would be Article 50(2) (b) of the Constitution which states:-

“50. (2) Every accused person has the right to a fair trial, which includes the right—

(b) to be informed of the charge, with sufficient detail to answer it.”

32. From the above Article it is clear that the accused person must be informed of the charge and the charge sheet must have sufficient detail for the accused to answer it. As to the substance of the charge sheet this is provided in Section 134 of the Criminal Procedure Code which provides that:-

“'every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.”

This section is in line with Article 50 (2) (b) of the Constitution.

33. As to the formalities of the charge, Section 137 of the Criminal Procedure Code states that:

“137. The following provisions shall apply to all charges and informations, and, notwithstanding any rule of law or practice, a charge or information shall, subject to this code, not be open to objection in respect of its form or contents if it is framed in accordance with this code –

Mode in which offences are to be charged.

(a) (i) a count of a charge or information shall commence with a statement of the offence charged, called the statement of offence;

(ii) the statement of offence shall describe the offence shortly in ordinary language, avoiding as far as possible the use of technical terms, and without necessarily stating all the essential elements of the offence, and if the offence charged is one created by enactment shall contain a reference to the section of the enactment creating the offence;

(iii) after the statement of the offence, particulars of the offence shall be set out in ordinary language, in which the use of technical terms shall not be necessary:

Provided that where any rule of law or any act limits the particulars of an offence which are required to be given in a charge or information, nothing in this paragraph shall require more particulars to be given than those so required……..”(Underlining mine)

34. It is instructive that neither Article 50(2) of the Constitution nor Sections 134 and 137 of the Criminal Procedure Code contain any requirements for signing of charge sheets. Even so the courts have held that there is a requirement for signing a charge sheet. Indeed, in the two English cases cited by Counsel for the appellant the courts found that a charge which was not signed by the Office of the Director of Public Prosecutions was not valid. The position in our jurisdiction is found in the case of Dickens Odari Bige & Another [2014] eKLR where the Court of Appeal stated:-

“It would appear, then, that there is a legal requirement that a charge sheet be signed to acquire validity to found a complaint against a suspect. But Section 90(2) of the Code validates defects in the charge sheet validity of whose proceedings shall not be affected either by a defect or complaint in the charge. In any event and as ably submitted by Mr. Abele, any error, omission or irregularity in the charge sheet which did not occasion a failure of justice was cured by Section 382 of the said code.”

35. The Court of Appeal arrived at the above holding from Section 89(3) and 89(4) of the Criminal Procedure Code . Section 89(3) and 89(4) states:-

“89. (3) A complaint may be made orally or in writing, but, if made orally, shall be reduced to writing by the magistrate, and, in either case, shall be signed by the complainant and the magistrate.”

(4) The magistrate, upon receiving a complaint, or where an accused person who has been arrested without a warrant is brought before him, shall, subject to the provisions of subsection (5), draw up or cause to be drawn up and shall sign a formal charge containing a statement of the offence with which the accused is charged, unless the charge is signed and presented by a police officer.”

36. The case against the Applicant and his co-accused was instituted by the Office of the Director of Public Prosecutions filing a charge sheet before the Chief Magistrate’s Anti-Corruption Court and there is no dispute that the initial charge sheet was signed by the Office of the Director of Public Prosecutions. Thereafter on 12th October, 2021 the Office of the Director of Public Prosecutions made an application to amend the charges and the trial court granted the application. I agree with the submissions that the words “a police officer” in Section 89(4) of the Criminal Procedure Code must now be read to mean “Director of Public Prosecutions or an officer acting under the authority of the Office of Director of Public Prosecutions. The amended charge sheet that was presented to the court, and this is not disputed, bears a rubber stamp of the Office of the Director of Public Prosecutions with a date and signature at its top right side. It is the applicant’s contention that this stamp merely signified that the Office of the Director of Public Prosecutions received the amended charges were instituted by that office. On their part Counsel for the respondents has urged this court to find that the stamp signifies that the amended charges were brought by the Director of Public Prosecutions. In my view the argument by the Applicant and his co-accused is not tenable. This is for the simple reason that the Applicant and his co-accused do not dispute that they are being prosecuted by the Office of the Director of Public Prosecutions and that it is officers of the Office of the Director of Public Prosecution who are in conduct of that case that made the application to amend the charges. It is my finding therefore that the stamp of the Office of the Director of Public Prosecutions on the Amended Charge Sheet signifies the approval of the amended charge sheet and charges and is not merely a receipt stamp. The Director of Public Prosecutions has not disputed that it is in conduct of the prosecution. Moreover, it is settled law that the test in regard to charge sheets is substantive test as opposed to formalistic test. This was the position in the case of Leonard Kipkemoi v Republic (supra)where the court stated that:

“35. InB N D vs Republic [2017] eKLR, Ngugi Jlaid out the test to be followed in determining whether a charge sheet is defective. The Learned Judge stated as follows:

“The principle of the law governing charge sheets is that an accused should be charged with an offence known in law. The offence charged should be disclosed and stated in a clear and unambiguous manner so that the accused may be able to plead to a specific charge that he can understand. It will also enable an accused person to prepare his defence.

29. The answer from our decisional law is this: the test for whether a charge sheet is fatally defective is a substantive one: was the accused charged with an offence known to law and was it disclosed in a sufficiently accurate fashion to give the accused adequate notice of the charges facing him? If the answer is in the affirmative, it cannot be said in any way other than a contrived one that the charges were defective.”

37. It was also the position In Benard Ombuna v Republic [2019] eKLRwhere the Court of Appeal pronounced itself as follows:-

“15. In a nutshell, the test of whether a charge sheet is fatally defective is substantive rather than formalistic. Of relevance is whether a defect on the charge sheet prejudiced the appellant to the extent that he was not aware of or at least he was confused with respect to the nature of the charges preferred against him and as a result, he was not able to put up an appropriate defence.”

38. This seems to me to be the same reasoning that had been adopted by the Court of Appeal in the case of Dickens Odari Bige & Another [2014] eKLR. The question then would be whether the omission to sign if indeed the charge is not signed goes to the substance or to the form of the charge sheet because if the omission goes to the form but not to the substance of the charge then this court cannot allow this application.

39. Guided by the aforestated principles and provisions of the law, it is clear to this court that the primary purpose of a charge sheet is to inform the accused person of the charges facing him with sufficient detail to answer it. In the instant case, the applicant does not state that he did not understand the charges facing him. He merely challenges the charges because the same was not signed. However, the charge sheet has a stamp of the respondent on its top right hand side which is signed and initialled “PPC”.As I have already stated I am not persuaded that that stamp is a receipt stamp. The stamp does not bear the word “Received” to indicate it is such and there is also no evidence that the Respondent has a special stamp used by its officers other than this one and for that reason the stamp can only mean the approval of those charges by the office of the Director of Public Prosecutions. Even in the event that the charge sheet was not signed, it is my finding that that does not invalidate the charge sheet because the omission would be an irregularity which as stated by the Court of Appeal in the case of Dickens Odari Bige & another v Republic (supra) any error, omission or irregularity which did not occasion a failure of justice was cured by Section 382of theCriminal Procedure Code.

40. On whether the omission by the Director of Public Prosecutions to sign the charge sheet and its stating the police case Number has occasioned a failure of justice, it is my finding that it has not. This is because the applicant does not complain that he did not understand the charges facing him I am not in any case persuaded that the mere fact of the charge sheet not being signed would be an impediment to the applicant and his co-accused understanding the charges. The Office of the Director of Public Prosecutions has also confirmed that it is the one in conduct of the prosecution and not the police which should allay the applicant’s and this court’s fear that the prosecution is being conducted by an office other than the one mandated to do so by the constitution.

41. My so saying finds support in the case of Kevin Otieno Owino v Republic [2020] eKLRwhere the court stated:-

“83. My understanding of the procedure of preparing a charge sheet is that once a charge sheet is prepared against an accused, the OCS stamps it after which the charge sheet is in many cases sent to the ODPP who either signs or stamps the same to prove that they have authorized the charge. The Charge sheet is then filed at the relevant court registry and stamped. This procedure, in my opinion, validates the reason the charge sheet in this case had both the stamp by the OCS and the SRM’s court. In my view whether or not the charge sheet was stamped or signed by the ODPP does not amount to prejudice against the appellant, considering the fact that the appellant was prosecuted by a competent officer from the Office of the Director of Prosecutions.”

42. Similarly in the case of Amos Mbugua v Republic [2017] eKLRthe court stated that:

“The charge and particulars thereof have been reproduced at the beginning of the judgment. Clearly, they comply with the provisions of section 134 of the Criminal Procedure Code as they are simple and straight forward. In fact there is no requirement in the provisions for the OCS or OCPD’s signature and rubber stamp of the specific police station. I have also perused the charge sheet in the original court record and find that the same contains a signature of the officer in charge, Taru police station and a rubber stamp of the said police station dad 25. 12. 2012. I have also looked at section 137 (a) (i) and (ii) of the Criminal Procedure Code which are part of the rules set by this framing charges and information. Section 137 (a) (i) of the Criminal Procedure Code provides that;

“a count of a charge or information shall commence with a statement of the offence charged, called the statement of offence”

Sub section (c) (ii) states;

“the statement of offence shall describe the offence shortly in ordinary language, avoiding as for as possible the use of technical terms, and without necessarily stating all essential element of the offence, and if the offence charged is one created by the enactment shall contain a reference to the sections of the enactment creating the offence”

Again, these rules have nothing to do with the requirement of the signature of the OCS or OCPD and rubber stamp of the police station.”

The submission that the charges are illegal, invalid and void ab initio is not tenable and must fail.

43. On the contention that the respondent failed to use the sample charge sheet in its Guidelines on the Decision to Charge, it is my finding that while it would be ideal for the respondent to adopt the sample charge sheet in the guidelines on the decision to charge those guidelines whether fully rolled out or not cannot overrule the clear provisions of the Criminal Procedure Code and where they are in conflict with the law the law must prevail. Moreover, from my perusal of the sample charge sheet annexed to the Guidelines it has no further changes that affect the information that is contained in the present format of the charge sheet that can be said to go to the root of drafting charges provided for under Section 134-137 of the Criminal Procedure Code. It is also noted that under paragraph 1. 2 of these Guidelines that deals with compliance and accountability, non-compliance with the guidelines does not affect the case. In any event, as stated above, the form of the charge sheet does not go to the root of the case nor does it prejudice the accused persons. In Republic v Charles Ayugi Osiku & 3 others [2019] eKLRthe court being faced with a question of whether a charge sheet was defective for failure to be countersigned Karanja J held: -

“[13]This court would agree with the appellant’s contention for reason that the error was in relation to formal and thus a mere procedural technicality which did not go to the substance of the case nor occasion any failure of justice, hence curable underSection 382of theCriminal Procedure Code. Further,Article 159 (2) (d)of theConstitutionbehoves upon the courts to administer justice without undue regard to procedural technicalities.

[14]Be that as it may, countersigning in actual sense means a second signature onto a document in order to verify authenticity and while it is definitely a good practice in ensuring authenticity, this court is of the opinion that a document may still be valid without it as long as it is a proper legal document with clear expression of its objective.

I associate myself fully with the above finding of Karanja J.

44. Even were this court to hold that the charge sheet was defective for not being signed this court would not be justified to stop the prosecution as the same is an irregularity which even on appeal would be curable under Section 382 of the Criminal Procedure Code unless there is evidence that it has prejudiced the applicant. The Applicant and his co-accused have not demonstrated how they have been prejudiced by the alleged omission to sign. The irregularity cannot therefore be used as a ground to halt the case in the trial court. To hold that it could would also be an affront to Article 159(a) (d) of the Constitutionwhich obligates this court to do justice without undue regard to procedural technicalities.

45. Accordingly, the application has no merit and it is dismissed. It is so ordered.

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

E.N. MAINA

JUDGE