Director of Public Prosecution v Kerich & 6 others [2022] KEHC 11018 (KLR)

Director of Public Prosecution v Kerich & 6 others (Anti-Corruption and Economic Crimes Revision E002 of 2022) [2022] KEHC 11018 (KLR) (Anti-Corruption and Economic Crimes) (9 June 2022) (Judgment)

Neutral citation: [2022] KEHC 11018 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Anti-Corruption and Economic Crimes

Anti-Corruption and Economic Crimes Revision E002 of 2022

EN Maina, J

June 9, 2022

Between

Director of Public Prosecution

Applicant

and

Richard Kerich

1st Respondent

Marwa Fadhili Chacha

2nd Respondent

David Kipruto Chingi

3rd Respondent

Peter Ngunjiri Wambugu

4th Respondent

Ndiba Warioko

5th Respondent

Meridian Medical Center

6th Respondent

Chief Magistrate, Milimani Anti-Corruption Court

7th Respondent

Judgment

Introduction 1. By the application dated 9th March 2022 the State/Applicant seeks orders that:-“i.Spentii.That the court be pleased to stay the order dated 9th March 2022 allowing all documents marked by the defence to be producediii.That the court be pleased to stay proceedings in Milimani Anti-Corruption Case no. 12 of 2013 Republic vs Richard Kerich & Others pending the hearing and determination of this revision.iv.That this court be pleased to call for and examine the record of the proceedings in Milimani Anti-Corruption Case no. 12 of 2013 Republic vs Richard Kerich & Others for the purpose of satisfying itself and pronouncing the correctness, legality or propriety of the order issued on 9th March 2022 by Hon. L. Mugambi.v.That the court be pleased to review, vary, reverse and/or alter the orders relating to production of documents in Anticorruption Case No. 12 of 2013 Republic v Richard Kerich & Others.vi.That the court be pleased to order that the documents produced pursuant to the impugned order of 9th March 2022 be expunged from the record.vii.That the court be pleased to make any other order that it deems fit in the interests of justice.”

Applicant’s Case 2. The application is supported by two affidavits sworn by Tabitha Saoli on 9th March 2022 and 25th March 2022 respectively. She deposes that she is a Prosecution Counsel in conduct of Milimani Anti-Corruption Case No. 12 of 2013, Republic v Richard Kerich & Others; that the lower court criminal proceedings were instituted against the respondents on 2nd October 2013 whereby they pleaded not guilty to various charges. Thereafter, the matter proceeded substantially and the accused persons were put on their defence on 9th June 2021. However, on 27th September 2021 while the 1st respondent was giving evidence, he sought to produce documents marked as D1DMFI 48 and 49 to which the prosecution objected on grounds that the documents were uncertified copies; that no explanation was tendered as to the whereabouts of the originals and that they bore handwritten details without evidence being led as to the maker of the same and that in response, Counsel for the respondent, J.K. Bosek stated that the disputed documents had been given to him in the state they were in.

3. Learned Prosecution Counsel further deposed that the trial court ruled that D1DMFI 48 was not properly before the court and could not be admitted as it was an uncertified copy prompting the 1st respondent to seek more time to have the documents certified and for summons to be issued to any witness who would be required to produce them which prayer was allowed. Counsel stated that on 26th October 2021, the defence through a letter dated 25th October, 2021 served the applicant with a bundle of documents it intended to rely on in support of its case and when the matter came up for hearing the next day the applicant informed the court that the bundle was not certified and also requested for time to verify the documents. Counsel stated that on 27th January 2022 on which date the matter was slated for further hearing, the 1st respondent marked several new documents, conceded to not having served the applicant and undertook to supply the applicant with the same. The same scenario was once again replicated on 9th March 2022 in respect of D1DMFI 51. It is further pleaded that the inventory dated 12th August 2012 indicated that the National Health Insurance Fund had supplied certified copies of the documents to the Ethics and Anti-Corruption Commission and not originals as alleged. Counsel stated that the applicant informed the court that the prosecution had verified the documents and confirmed that the originals were neither in their possession nor with the Ethics and Anti-Corruption Commission but, the trial court agreed with the 1st respondent’s rejoinder that the documents had been supplied to the prosecution in advance and no proof had been availed that they were not in the Ethics and Anti-Corruption Commission’s possession. Counsel deposed that consequently, the trial court ruled that the applicant having been served with the documents in question and having not raised any prior objections on their admissibility, in its letter in response to those of the 1st Respondent, could not raise any objection to the validity of the documents supplied to it. Further that since the applicant had failed to communicate the results of the verification exercise to the defence, its objection could not be upheld.

4. It is the applicant’s case that the trial court failed to address its mind to the question of proper certification of documents. Counsel stated that as per the admission by the National Health Insurance Fund, the copies were certified using copies which is untenable in law and in the circumstances in granting a blanket order to the 1st respondent to produce inadmissible documents the trial court shifted the burden of proving their veracity from the respondent to the applicant. Counsel asserted that it has not been proved that the original documents are in the custody of the Ethics and Anti-Corruption Commission as it was established that the National Health Insurance Fund supplied only certified copies to it. Therefore, in light of “the error on the face of the record” the respondent seeks the following documents that were “irregularly” admitted as exhibits expunged:D1Exh 60(B) Minutes of 5th January 2012 of the NHIF finance and investments committee of the boardDIDExh 51 Letter from Mr. Kandagor, supply chain management officerDIDExh 27(a) Minutes of the tender opening held on 4th August 2008DIDExh 27(b) Names of biddersDIDExh 27(c) Names of bidders representatives present for the openingDIDExh 20(a) Management paper on expression of interestDIDExh 20 Evaluation report on expression of interestDIDExh 4 Tender document for the request for proposalDIDExh 54(a) Tender opening registerDIDExh 54(b) List of bidders present during the opening of the tenderDIDExh 55 Evaluation report on the tenderDIDExh 56 Management paper on the tender documentDIDExh 59(a) Letter dated 26th October 2021 from manager strategy and planningDIDExh 59(b) Accreditation procedureDIDExh 25 Minutes of the tender committeeDIDExh 31 Award letter to Meridian Medical Centre

5. In its submissions filed on 19th April 2022, the applicant states that this court is seized of revisionary and supervisory jurisdiction as held in the case of Director of Public Prosecutions v Perry Mansukh Kansagara & 8 others [2020] eKLR and Director of Public Prosecutions vs Samuel Kimuchu Gichuru & Another [2012] eKLR; that the court may correct errors, mistakes, omissions of a subordinate court or tribunal and give appropriate directions on the manner in which ongoing criminal proceedings ought to be conducted. That, moreover, Order 45 Rule 1(b) of the Civil Procedure Rules and Section 80 of the Civil Procedure Act provide that a party may apply to review its decision where a person is aggrieved by a decree or order from which no appeal is allowed by the Act; or from which an appeal is allowed but has not been preferred and that the respondent has therefore misapprehended the law by arguing that this is a matter that should have been dealt with by way of review.

6. The applicant submits further that the question of admissibility of documents may only be made in the course of a criminal trial; That, no act or purported failure may validate what was previously invalid and hence the trial court’s determination that the applicant could not object to the propriety of the documents as it had been given an opportunity to verify the same was improper and incorrect. Counsel submitted that the burden of bringing the documents within the ambit of admissibility lay squarely with the 1st respondent; That production of uncertified documents of the claim that the originals were with the Ethics and Anti-Corruption Commission yet the document relied upon indicated that only certified copies were supplied to the Ethics and Anti-Corruption Commission was largely irregular. Counsel cited Section 68(1)(a) and Section 69 of the Evidence Act to the effect that nosecondary evidence of documents referred to in Section 68 shall be given unless a notice to produce is served in the following cases: when the document to be proved itself is a notice; when the adverse party must know that he will be required to produce it; when it appears that the adverse party has obtained possession of the original by fraud or force; when the adverse party or his agent has the original in court; when the adverse party or his agent has admitted the loss of the document; when the person in possession of the document is out of reach or not subject to the process of the court and in any other case where the court deems fit to dispense with the requirement. Counsel faulted the 1st respondent for failing to issue such notice to produce to the prosecution and submitted that in the unlikely event that the defence issued notice, the subject documents have been tampered with, are unreliable and cannot be admitted as evidence. She urged this court to set aside the impugned ruling and expunge from the record all the documents produced pursuant to the ruling.

Respondents’ Case 7. The application was opposed vide the 1st respondent’s replying affidavit sworn on 21st March 2022 and the 4th, 5th and 6th respondents’ replying affidavits sworn on 22nd March 2022. The 1st respondent’s affidavit which is largely mirrored by that of the rest of the respondents presents a narrative similar to that of the applicant. The 1st respondent confirms that during defence hearing on 27th September 2021 he sought to produce as exhibits documents that had been marked for identification during the hearing of the prosecution’s case but the prosecution objected and the court ruled that he could only produce copies if they were certified. That by a letter dated 25th October 2021 his Advocates on record sent to the Applicant copies of the certified documents and on 27th October 2021, the prosecution was granted more time to verify whether the Ethics and Anti-Corruption Commission had the received the originals of those documents from the National Hospital Insurance Fund. The 1st Respondent stated that in a letter of 30th November 2021, his advocate inquired from the applicant whether the verification had been done in readiness for further hearing but there was no response thereto.

8. The 1st respondent lauded the trial court for overruling the prosecution’s objection for reason that the prosecution did not at any time inform the court, the accused persons and their respective Counsel of the outcome of the verification of the documents which had been duly certified. The 1st Respondent narrated that he proceeded to produce in evidence all documents except one which the prosecution successfully objected to on the basis that the last handwritten page was missing and which document was withdrawn accordingly. The 1st Respondent further stated that on 9th March 2022, he once again wrote to the National Hospital Insurance Fund to re-certify the document the prosecution had objected to and it was re-certified and he produced it in evidence on 14th March 2022 and closed his case.

9. The 1st respondent pointed out that the impugned documents were those that had been supplied to his then advocates on record, Messrs J.K. Bosek & Company Advocates on 28th January 2014 by the Ethics and Anti-Corruption Commission pursuant to a court order made on 27th January 2014. That the Ethics and Anti-Corruption Commission is the investigative body that recommended his prosecution and that 27th October 2021 Prosecution Counsel undertook to establish if the Ethics and Anti-Corruption Commission was in possession of the originals of the impugned documents but did not do so.

10. It is the 1st respondent’s case that Section 64 of the Evidence Act provides that the contents of documents may be proved either by primary or by secondary evidence and that secondary evidence includes certified copies or copies made from or compared with the original. He cited Section 68(1) of the Evidence Act to the effect that secondary evidence may be given as proof of the contents of a document where the original is in the possession or power of the person against whom the document is sought to be proved.

11. In his submissions, Learned Counsel for the 1st Respondent stated that the first three prayers raised by the applicant had been overtaken by events leaving only prayers 4 to 7 for consideration. Further that this application is disguised as one invoking the court’s revisionary power yet the substantive prayer sought is that of review. Counsel contended that the applicant has a chance to test the veracity of the defence exhibits in cross-examination hence this application is an abuse of court process and it ought to be dismissed. The 5th respondent on his part submitted that the application is a delaying tactic subjecting all the respondents to frustration that flies in the face of Articles 50(2) (e) and (k) which guarantee accused persons the right to a fair trial which includes the right to have the trial begin and conclude without unreasonable delay and the right to adduce and challenge evidence.

Analysis and Determination 12. The issue for determination is whether the trial court’s ruling was incorrect, improper, illegal and irregular as to warrant its revision by this court under Section 362 of the Criminal Procedure Code or its supervisory jurisdiction under Article 165 (6) of the Constitution.

13. The applicant has invoked the supervisory jurisdiction of the High court under Articles 165(6) and (7) of the Constitution which 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.”

14. The circumstances under which this court can exercise its supervisory jurisdiction were laid in the case of Director of Public Prosecutions v Perry Mansukh Kansagara & 8 others [2020] eKLR, where Mwongo J. stated as follows:“Supervisory Jurisdiction and its application in the circumstances of the case: 150. The question that now needs an answer is: under what circumstances can the High Court in a criminal matter call up the record of proceedings of a criminal case and intervene in exercise of its constitutional Supervisory Jurisdiction? I can readily identify the following as situations which would merit the court’s intervention and in which the court should not hesitate to invoke its constitutional supervisory power. I can think of several situations:a.Where there are special or exceptional circumstances that cannot be addressed through the statutory revisional powers of the court without undue expense or delay;b.Where there is clear and irrefutable evidence of a violation of the rights of a person whose representation is permitted in law;c.Where the public interest element of the case is so substantial that the court would be deemed as abetting an injustice if it did not intervene to correct the situation.d.In any event, the overriding principle in all cases is that the court must act only with the objective of ensuring “the fair administration of justice”; This list showing rationale for intervention is of course not exhaustive.

151. Where, or if, it is intended to exercise Supervisory Jurisdiction under the Constitution, I think the following safeguards should be observed:i.A balance has to be struck in the exercise of constitutional Supervisory Jurisdiction to ensure there is no appearance that its object is to micro- manage the trial court’s independence in the conduct and management of its proceedingsii.Ideally, constitutional Supervisory Jurisdiction should be exercised only after the parties are heard on the subject matter in questioniii.Supervisory Jurisdiction should not be used where the option of revision is appropriate or applicable;iv.Supervisory Jurisdiction should not be used as a shortcut for an appeal where circumstances for appeal clearly pertain and are more appropriate;v.Supervisory Jurisdiction should be exercised to achieve the promotion of the public interest and public confidence in the administration of justice...” (Emphasis mine).This jurisdiction is therefore to be exercised sparingly and must not be used so as to micromanage the trial courts.

15. In regard to this court’s revisionary jurisdiction it was stated in the case of Republic v Milka Jerobon Chumba [2017] eKLR that:-“4. The jurisdiction of the High court on revision is not unlimited. Section 362 and section 364 of the Civil Procedure Code when read together leave no doubt that the court can only exercise its revisionary jurisdiction if it is satisfied that there was an illegality, incorrectness, irregularity, mistake or impropriety in the decision, sentence or order sought to be reviewed.”

16. Faced with an application similar to the one before me in the case of Njuguna Mwangi & another v Republic [2018] eKLR the court observed as follows:“13. It is trite that exercise of revisionary orders by the High Court is a matter of judicial discretion which must be exercised judicially by the court within the confines of Section 362 and 364 (1) of the CPC and not a substitution to institution of an appeal (See Abraham Wafula vs Republic [2013] eKLR (Bungoma HC CR REV. No. 21/2013).

14. What is the effect of admitting an exhibit by the trial court after overruling an objection raised by the defence or prosecution challenging such admission. Production and admission of exhibits in the course of a trial is governed by laid down procedural and legal requirements whether in criminal or civil proceedings. Ordinarily, objections do arise when a party attempts to produce a document or materials relied on to prove one’s case depending on the circumstances and attendant legal provisions governing such production. Depending on the nature of evidence and Exhibit sought to be produced, courts quite often do make interlocutory rulings allowing or disallowing production of such exhibits.

15. In a situation such as the instant case which is challenging the admission of certain exhibits for failure to comply with certain legal requirements or standards before production and admission, it is perfectly within the purview or discretion of the trial court to determine the element of admissibility based on the relevant law. The consequence of such admission improper or otherwise, would attract a ground of appeal by either party upon conclusion of the case depending on whether there is a conviction or not. That is why the Luke Ouma Ochieng vs R(supra) case is not relevant to this case as it was referring to a situation of an accused person who had already been convicted based on production of exhibits that had been objected to at the trial stage. The admissibility of exhibits objected to should be challenged or raised after conclusion of the trial at the appeal stage and not at the admission stage or in the middle of a trial.

16. The production and admission of the said exhibits does not amount to condemnation of the accused person. It is not automatic that the Applicants will be adversely affected by being convicted. In case of a conviction based on those exhibits, the Applicants shall have a remedy by way of an appeal. The power to admit exhibits or not is purely a matter of interpretation of the law by a trial court. It will be prejudicial to the trial and the eventual outcome of the case which is ongoing if this court were to make a finding that the admission was wrong. A court handling an application of this nature must act with extreme caution and restraint not to unnecessarily invoke revisionary powers thereby interfering with the trial court’s proceedings thus prematurely jeopardising the appeal process. Courts are not infallible as mistakes may occur but there are properly prescribed remedies e.g appeals where appropriate.

17. It would be a bad precedent for the High Court to intervene and annul each order made by a trial court in admitting each exhibit against the wish of the defence or prosecution. To allow such a scenario under revisionary powers would amount to anarchy in litigation thus entertaining several mini appeals in the middle of a trial of a case in the guise of exercising revisionary powers thus micromanaging and clogging the legal system by extension unreasonably delaying the expeditious disposal of cases and administration of justice.

18. Practically, it is inconceivable that every ruling on admission or non-admission of exhibit(s) by a trial court would automatically attract or generate a ground of revision. The grounds cited herein do not fall within the confines of an error envisaged under Section 362 of the CPC to call for revision. The Applicants have not been prejudiced by the admission of exhibits at this stage. The case is yet to be finalised. They will have a basis on appeal at the conclusion of the case in the event they are found guilty.”

17. From a reading of the parties’ pleadings and submissions in this case, it is evident that the trial court faced with the objection to the production of the impugned documents initially ruled that they could not be produced unless they were certified which was then duly done. The prosecution then sought and was granted more time to verify the authenticity of those documents with both the Ethics and Anti-Corruption Commission and the National Health Insurance Fund where they originated from. It is not disputed that this opportunity was afforded to the Applicant which in co-operation with the investigative body, the Ethics and Anti-Corruption Commission, had a duty to verify the subject documents and present its findings to all parties but it failed to do so. Moreover, it emerged that those very documents were what the Ethics and Anti-Corruption Commission itself supplied to Counsel for the 1st Respondent following an order of the trial court. In the circumstances I see no impropriety, illegality or manifest error on the part of the trial court overruling the applicant’s objection to the documents warranting interference by this court. Moreover, should the documents have been wrongly admitted the applicant still has a right of appeal to this court.

18. Further, the fact that the trial court has overruled the prosecution’s objection does not necessarily amount to an automatic loss of its case as Counsel for the prosecution will have an opportunity to cross examine and to submit on those documents. I also find that no exceptional circumstances exist in this case as to warrant the exercise of the supervisory jurisdiction of this court. In the premises and for the aforegoing reasons I find the application not merited and it is dismissed.

SIGNED, DATED AND DELIVERED VIRTUALLY THIS 9TH DAY OF JUNE, 2022. E N MAINAJUDGE