Director of Public Prosecutions v Gerishon Lujitio Majanja [2022] KEHC 12190 (KLR)

Director of Public Prosecutions v Gerishon Lujitio Majanja (Criminal Revision E048 of 2021) [2022] KEHC 12190 (KLR) (8 July 2022) (Ruling)

Neutral citation: [2022] KEHC 12190 (KLR)

Republic of Kenya

In the High Court at Kakamega

Criminal Revision E048 of 2021

WM Musyoka, J

July 8, 2022

Between

Director of Public Prosecutions

Applicant

and

Gerishon Lujitio Majanja

Respondent

(From a decision by Hon. Akee, Resident Magistrate, of 29th June 2021, in Kakamega CMCTRC No. E208 of 2021)

Ruling

1. On October 29, 2021 I delivered a ruling where I held off determination of the revision sought herein by the applicant to hear representations for the parties. I specifically directed the parties file skeletal submissions. The matter was mentioned on December 6, 2021, the Republic sought time to file written submissions. That was granted, and the matter was fixed for mention on January 31, 2022. By January 31, 2022 the Republic had not filed written submissions, and asked me to determine the matter based on what is on the record.

2. The matter is fairly straightforward. The Republic charged the respondent of a traffic offence. He denied the charge. Before his arraignment in court he had not been furnished with the witness statements and the evidence that the Republic intended to place before the trial court. That was contrary to article 49 of the Constitution. A trial commences at arraignment, according to Kimani vs. Kahara [1983] eKLR (Simpson & Sachdeva JJ), and witness statements and other evidence ought to be availed to the accused before then, to assist him make a decision on how he would plead, after reviewing the evidence that he would face at trial.

3. The arraignment was on March 29, 2021. After plea was taken, the matter was fixed for mention on June 29, 2021, for the Republic to furnish statements. Come June 29, 2021, exactly 3 months after arraignment, the Republic still had no witness statements to avail to the respondent, and, therefore, the case was not ready for hearing. The mention was for the purpose of the respondent being supplied with witness statements in preparation for the hearing slated for July 6, 2021.

4. According to its letter of July 5, 2021, asking for revision, the Republic states that the prosecutor came to court on 2June 9, 2021, without the witness statements, and says she called a police officer, presumably the investigating officer, who stated she did not know if any statements had been prepared or recorded, and pleaded for more time.

5. This is a clear case of a rushed arraignment. The Republic was quick to have the respondent take plea, before it had even investigated the case. If it had done any investigations, it would have had witness statements by the time it made the decision to charge the respondent, and, at any rate, on March 29, 2021 when he was presented in court for plea. The court was magnanimous to the Republic on March 29, 2021, for it granted time for preparation of the witness statements and for it to furnish the same to the respondent. It was allowed 3 months to do so, but still, by June 29, 2021, the Republic had done nothing.

6. I am not persuaded that the trial court acted improperly or incorrectly or irregularly or illegally in its decision of June 29, 2021, in allowing the Republic to withdraw its case. The Republic was not serious in the manner it was handling the matter, yet it involved the fair trial rights of the respondent, which are guaranteed and protected under the Constitution, 2010. I, therefore, decline to revise the decision of the trial court.

RULING DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 8TH DAY OF JULY 2022W M MUSYOKAJUDGEMr. Erick Zalo, Court Assistant.Ms. Kagai, instructed by the Director Public Prosecution, for republic