Abdi Yasir Mohamed v Director of Public Prosecution, Principal Magistrate & Attorney General [2017] KEHC 1859 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT MACHAKOS

MISCELLANOUS CRIMINAL APPLICATION NO. 38 OF 2017

ABDI YASIR MOHAMED..................................................................... APPLICANT

VERSUS

DIRECTOR OF PUBLIC PROSECUTION............................... 1ST RESPONDENT

PRINCIPAL MAGISTRATE….................................................. 2ND RESPONDENT

ATTORNEY GENERAL.............................................................. 3RD RESPONDENT

RULING

The Applicant herein filed an application by way of a Notice of Motion dated 17th March 2017, seeking  revision of the orders of the Principal Magistrate of 8th February 2017 in Mavoko Criminal Case No 1044  of 2014 so as to direct recall of the Defence witnesses. The said Notice of Motion was supported by an affidavit sworn by the Applicant on the same date.

According to the Applicant, when the matter came for hearing on 8th February 2017, the defence case was suddenly closed and a judgment date set when the defence was not ready to close, and he had four remaining witnesses who had not testified. Further, that the Applicant was not represented by his advocate at the material time and did not understand the proceedings.

The Applicant’s Advocates, I.N. Nyaribo and Company Advocates, filed submissions on the application dated 28th April 2017, in which he urged that the orders made by the trial Court lacked legal foundation as Article 50 (2) of the Constitution provides for the minimum guarantees for a fair hearing,  which includes the right under Article 50 (2) (c) to have adequate time and facilities to prepare a defence. Further, that the right to a fair trial cannot be limited under Article 25 of the Constitution. Reliance was also placed on the decision in Maina Njenga vs Republic, (2013) e KLR.

Further, that the orders made by the trial Court were inappropriate in the circumstances, as the witnesses were present in Court and it is the Applicant’s Advocate who was not present in Court, and the Applicant is therefore being punished for the inadvertent mistake of the counsel. Lastly, that the said orders were contrary to the provisions of sections 215, 216 and 308 of the Criminal Procedure Code, as the Accused Person was not granted an opportunity to present and examine his witnesses before close of the defence case.

Ms. Mogoi, the learned Prosecution counsel, submitted that the Court could proceed to give a ruling on the application to expedite the hearing in the trial Court, and that she would not file written submissions in response.

I have considered the Applicant’s application. A perusal of the proceedings of the trial Court reveals that there are no orders given on 8th February 2017 by the trial Court as to the close of the defence case. The orders on record were made on 13th February 2017, when the trial Court gave a time allocation on that day for hearing of the defence case, after the Accused person informed the Court that his advocate was not present and sought an adjournment which was opposed by the Prosecution. When the hearing proceeded later that day, the Accused person indicated that he would close the defence case, whereupon the trial Court gave a mention date of 2nd March 2017 for final submissions.

On 2nd March 2017 the Accused Person’s defence counsel applied to be given time to make an application for review on 9th March 2013, and on that date the said application appeared not to have been filed when the trial Court first sat, prompting the Court to set the matter for judgment on 18th April 2017. The trial Court also directed the defence counsel to move the High Court in the event of any applications he wished to make, Later in the day the trial Court noted that the application had been “sneaked” into the Court file and reiterated its earlier orders that the Accused person proceeds in the High Court, leading to the present application.

Section 362 of the Criminal Procedure Code which gives revisionary powers to this Court to 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. Section 364 of the Criminal Procedure Code in addition provides for the powers of the High Court on revision.

In the present revision, my finding is that the proceedings of 13th February 2017 in the trial court denied the Applicant his right of legal representation, and denied him  an opportunity to adequately prepare for his defence, as he had sought and adjournment for his  defence counsel to be present which was denied.  The trial court should have given him a conditional adjournment to enable him prepare his defence in the absence of his counsel, even if it meant taking the defence on another day.

The proceedings of 13th February 2017 therefore contravened Article 50 (2) (c) and (g) of the Constitution which provided for the rights of an accused person to a fair trial, and in particular his right to have adequate time and facilities to prepare his defence and to choose to be represented by an advocate.

I accordingly set aside the orders made by the trial Court in Mavoko Criminal Case No 1044  of 2014 on 13th February 2017 and 9th March 2017 that the parties make final submissions, and that judgment shall be delivered on 18th April 2017. I direct that the said case proceeds with the hearing on a day-to-day basis until conclusion, and directions in this regard be taken before another magistrate other than Hon. P. Ooko at Mavoko Law Courts.

DATED AT MACHAKOS THIS  2ND  DAY OF NOVEMBER 2017.

P. NYAMWEYA

JUDGE