Director of Public Prosecutions v Muiruri & 2 others [2023] KEHC 18922 (KLR)

Director of Public Prosecutions v Muiruri & 2 others (Criminal Appeal E017 of 2022) [2023] KEHC 18922 (KLR) (Anti-Corruption and Economic Crimes) (22 June 2023) (Judgment)

Neutral citation: [2023] KEHC 18922 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Anti-Corruption and Economic Crimes

Criminal Appeal E017 of 2022

EN Maina, J

June 22, 2023

Between

Director of Public Prosecutions

Appellant

and

Paul Mburu Muiruri

1st Respondent

Erastus Njomo Irungu

2nd Respondent

Eston Sabali Kiyai

3rd Respondent

(Being an appeal from the Rulings delivered by Hon. F. Kombo C.M, on 16th December 2022 in the Chief Magistrate’s Court at Milimani in Anti-Corruption Case No. E005 of 2022)

Judgment

1. The 1st, 2nd and 3rd Respondents were charged in Nairobi Chief Magistrates Court Anti-Corruption Case No. E005 of 2022 with four counts of the offence of Receiving a Bribe Contrary to Section 18 of the Bribery Act No 47 of 2016.

2. The case underwent pre-trial and was certified ready for hearing on 31st May 2022. On that day the prosecution was however unable to procure its witnesses hence resulting in an adjournment of the case on that and two other occasions, July 26, 2022 and October 17, 2022. The matter was subsequently fixed for hearing on December 16, 2022.

3. On the appointed hearing date, the prosecution was still unable to procure its witnesses. Prosecution Counsel applied for adjournment but it was rejected culminating in the impugned ruling. Aggrieved by the ruling the Directorate of Public Prosecution preferred this appeal.

4. The grounds of Appeal are:-“1)That the Learned Magistrate erred in law and fact by disregarding the evidence of the investigating officer contained in the affidavit of service and thus declined to give an order of warrants of arrest against the three witnesses namely Martin Gete Waweru, Aggrey Wamalwa Barasa & Lucy Wachuka Njoroge who had failed to honor court summons thereby being in contempt of court.2)That the Learned Magistrate erred in law and fact by disregarding the provisions of Section 145 of the Criminal Procedure Codein dealing with disobedience of court summons by witnesses.3)That the Learned Magistrate erred in law and fact by declining to lift the order of last adjournment and thereby denied a further adjournment due to the compelling reasons forwarded by the prosecution and the investigating officer.4)That the Learned Magistrate erred in law and fact by acquitting the three respondents under Section 210 of the Criminal Procedure Codeciting that no case had been made against the respondents.5)That the Learned Magistrate erred in law and fact by relying on extraneous considerations to deny the orders sought by the prosecution”.

5. Counsel consented to canvass the appeal through written submissions.

Plaintiff’s submissions. 6. Learned Counsel for the Appellant referred to the proceedings of December 16, 2022 and highlighted that the court had following an application by the Appellant issued summons to witnesses Martin Gete Waweru, Aggrey Wamalwa Barasa and Lucy Wachuka Njoroge requiring them to attend court on December 16, 2022 but they failed to honour the summons despite being duly served; that the prosecution made an application for adjournment due to the non-attendance of the witnesses; that the prosecution also prayed for warrants of arrest to issue in respect of the three witnesses which applications were declined by the court and directions given that the prosecution proceed with the case; that the prosecution sought for a break during which Counsel tried to get an alternative witness but the court resumed before the witness arrived; that Counsel therefore indicated there was no witness in court; that it was then that the court ruled that the accused persons had no case to answer and acquitted the Respondents under Section 210 of the Criminal Procedure Code.

7. Counsel submitted that the court erred in disregarding the compelling reasons advanced, the procedure and the law by calling upon the prosecution to proceed with the trial without issuing warrants of arrest as provided in Section 145 of the Criminal Procedure Code. Counsel stated that Section 210 of the Criminal Procedure Code upon which the ruling is predicated was not applicable in the circumstances as the prosecution had not called any witnesses; that the court ought to have exercised its discretion under Section 283 of the Criminal Procedure Code to adjourn the hearing; that the court erred in declining to lift the order of last adjournment and to give an order for warrants of arrest in the face of compelling reasons given by the investigating officer and the prosecution. Counsel placed reliance on the case of Director of Public Prosecutions v Perry Mansukh Kansagara & 8 Others [2020] eKLR.

Submissions of the Respondents 8. The Respondents opposed the appeal through their written submissions dated April 18, 2023 and May 2, 2023 respectively. The 1st Respondent submitted that the Appeal related to two rulings, that is the Ruling delivered on December 16, 2022 on which date the court declined to grant an adjournment and acquitted the Respondents; that the prosecution had applied for adjournments severally despite the court having reserved a cumulative eight days for the hearing of the matter, leading to the court’s directions on a final adjournment on October 17, 2022. That a week before the scheduled hearing specifically on November 21, 2022 the case was mentioned and the parties confirmed that they were ready for the hearing: Counsel asserted that the adjournment was not as of right and that the State had adequate time to seek warrants to compel their witnesses to attend court but did not do so. Reliance was placed on the case of Republic v Shitanda Civeli [2020] eKLR and the case of Republic v Kimosop Enock Kipchumba [2008] eKLR.

9. Counsel further submitted that the trial court considered that before this case there was another case filed in 2017 which was withdrawn; that the Respondents were always in court and ready to proceed and that on the material day the court waited until 2. 30pm for the prosecution to avail witnesses but no witness was forthcoming hence the court was constrained to compel the prosecution to close its case, culminating in the acquittal of the accused persons.

10. Learned Counsel for the 2nd Respondent submitted that his argument is anchored on Article 50(2)(e) of the Constitutionwhich guarantees the right to have trial begin and conclude without unreasonable delay; that it was clear that the Appellant was well aware that the witnesses were not cooperative but did not seek warrants of arrest. That the several requests for adjournment by the prosecution were vehemently opposed but the court indulged the Appellant despite it being clear that it was not keen on prosecuting its case. Counsel asserted that the applications by the Appellant were in blatant disregard of the directions of the court; that the protracted delay by the Appellant amounted to holding the Respondents hostage and was a waste of judicial time and resources and that the 2nd Respondent is a senior citizen who suffers from diabetes and high blood pressure and the matter has taken a huge toll on his health. Counsel urged this court to dismiss the appeal and uphold ruling of the trial court.

11. On his part the 3rd Respondent submitted that the application for warrants of arrest was made after the application for adjournment was made and dismissed by the trial court; that application by the prosecution was an attempt to defeat the order for last adjournment and that the prosecution violated Article 50 of the Constitutionby failing to have the trial concluded expeditiously.

12. Learned Counsel for the 3rd Respondent submitted that the Appellant has not demonstrated that the trial court abused its discretion in refusing to extend the last adjournment; that the Appellant was unable to proceed with its case for lack of evidence; that when Prosecution Counsel was asked to proceed with the hearing, he stated that he was leaving the matter to court and as such the court had nothing to rely on in considering whether a prima face case had been established so it had no alternative but to acquit the Respondents. Counsel stated that the trial court was privy to the related case Acc No. 13 of 2019 which was withdrawn for lack of witnesses and that there was no irregularity demonstrated to warrant a re-trial and the appeal should be dismissed.

Issue for determination: Whether the trial court erred in failing to grant the prosecution’s request for an adjournment at the hearing of December 16, 2022 Analysis and determination 13. Section 205 (1) of the Criminal Procedure Code, gives a trial court power to adjourn a trial from time to time. The section states:-“(1)The court may, before or during the hearing of a case, adjourn the hearing to a certain time and place to be then appointed and stated in the presence and hearing of the party or parties or their respective advocates then present, and in the meantime the court may allow the accused person to go at large, or may commit him to prison, or may release him upon his entering into a recognizance with or without sureties conditioned for his appearance at the time and place to which the hearing or further hearing is adjourned: Provided that no such adjournment shall be for more than thirty clear days, or, if the accused person has been committed to prison, for more than fifteen clear days, the day following that on which the adjournment is made being counted as the first day.”

14. The power to adjourn is however not absolute and the court’s discretion of the court must be balanced with the right to have the trial begin and conclude within reasonable time guaranteed to every accused person under Article 50(2) (e) of the Constitution.

15. Being alive to the need for an overriding objective that criminal cases be dealt with justly and expeditiously the Judiciary published the Guidelines for Active Cash Management of Criminal Cases in Magistrates Court’s and High Courts of Kenya which apply as general principles to assist in the operation of the specific procedural rules provided in the law. These said guidelines set out the procedure for pretrial case management of criminal cases, the purpose of the pretrial conference, the courts case management powers all aimed at ensuring that the right of accused persons to expeditious trials is observed. The guidelines also speak to the issue of adjournments at Guideline 5. 5 which states:“5. Applications for adjournment on the day of a trial may only be granted in exceptional circumstances and in such cases, reasons for granting the adjournment shall be recorded in writing”

16. From the aforegoing it is evident that while adjournments are in the discretion of the court they are not granted in a vacuum; the trial magistrate must be convinced that plausible reasons exist to grant the adjournment and that the other party shall not be prejudiced by the adjournment. The discretion to adjourn must be exercised judiciously. The interests of the prosecution and of the accused must be taken into account to ensure that justice is done. In the case of Republic v Mwaura Ikego [1979] eKLR, where a similar issue arose the court stated: -“...... Although a magistrate has a general discretion to adjourn or to refuse to adjourn under Section 205 of the Criminal Procedure Code, that discretion must be exercised judicially and sensibly. The interests of the accused must certainly be taken into account....... The interest of the prosecution is equally important in that it’s their duty to prosecute and to see that justice is done......”

17. In the present case, pre-trial directions were given on May 31, 2022. At that conference the prosecution confirmed that it had 17 witnesses and based on that confirmation the trial court had fixed the case for hearing on two days, 26th and July 28, 2022. However, on July 26, 2022, the prosecution sought an adjournment on grounds that their witnesses were not present. The court granted the adjournment and allocated the case fresh hearing dates from October 17, 2022 to October 20, 2022 and then October 26, 2022. On October 17, 2022 the Appellant once again applied for adjournment on the same ground as the first; that they had not succeeded in procuring their witnesses. The trial court granted the adjournment but directed that it would be last adjournment. The court then fixed the case for hearing on 28th and 29th of November, 2022 with a mention on November 21, 2022, a week prior to the hearing, to confirm the hearing and to address any preliminary issues.

18. The Appellant and the Respondent’s duly attended court on November 21, 2022 but the court vacated the hearing dates to December 16, 2022 for reasons that it was not going to sit on November 28, 2022. On December 16, 2022 the Appellant’s witnesses were not present. Prosecution Counsel sought a short adjournment to check on the status of the witnesses which request was granted by the court. The record shows that in the afternoon of the said date, the prosecution did not avail its witnesses. Prosecution Counsel urged the court to vacate the order of October 17, 2022 which had granted the Appellant the last adjournment. The application was declined and instead the court ordered Prosecution Counsel to proceed to close its case.

19. It is clear from the above chronology that, the court indulged the prosecution by allowing it adjournments severally. It even mentioned the matter a week to the appointed hearing date to confirm that the Appellant and the Respondents were ready to proceed. There was no indication from the Appellant that it was experiencing problems with its witnesses. Should the prosecution have had a challenge in procuring the witnesses, it ought to have sought warrants of arrest against the witnesses at that juncture but it did not do so. Moreover, the prosecution had indicated that there were seventeen witnesses and it is instructive that the only witnesses Prosecution Counsel had difficulty with were three. One therefore wonders why the other fourteen witnesses were not presented to court to testify.

20. Section 206 (1) dictates what the trial court ought to do in the event the accused or the complainant do not attend court after an adjournment. This is what the trial court did because although Prosecution Counsel was present there were no witnesses.

21. The circumstances of this case appear to be very similar to those in the case ofDirector of Public Prosecutions v David Siego Mono and 2 Others [2017] eKLR where the court in dismissing an appeal on similar issue held as follows and I agree with it: -“13. The conduct of the prosecution in the trial was such that it was determined to keep the respondents in court for as long as the court allowed them to do so knowing very well that their case was headed nowhere.14. I find that the grounds of appeal herein are baseless and not supported by the proceedings. The history of the case and the facts is such that it puts the conduct of the prosecution in question. As much as the appellant has a right to appeal against an acquittal, I reach the conclusion that this particular appeal amounts to an abuse of the due process of the court.”

22. The accused persons, now Respondents in this Appeal, had a legitimate expectation that their case would be heard without undue delay as provided in Article 50 (2) (e) of the Constitutionand the Appellant and the court had a duty to ensure the enjoyment of that right. It is instructive that the court had vacated the hearing dates and moved the same to an even further date hence affording the Appellant more time to avail its witnesses. That morning Prosecution Counsel had indicated that the witness was on the way. The record shows that the court placed the file aside to 2. 00pm to await the witness. The court therefore acted very fairly. The prosecution only applied for warrants after the trial magistrate indicated he would not adjourn the case any further. It is also instructive that there was another case against the Respondents which the prosecution had withdrawn for reason that it could not procure its witnesses and the trial court acted correctly in taking this into consideration. Whereas a court is expected to balance the rights of the accused and the public interest in these types of cases it is my finding that in the circumstances of this case the trial magistrate did not err in rejecting the application for adjournment. In the premises I find no merit in this appeal and the same is dismissed. The decision of the trial court is upheld.

SIGNED, DATED AND DELIVERED VIRTUALLY ON THIS 22ND DAY OF JUNE 2023. E.N. MAINAJUDGE