Lawrence Nicholas Mutembei v Republic [2019] KEHC 2260 (KLR)

`REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT CHUKA

CRIMINAL REVISION NO. 10 OF 2019

(FROM ORIGINAL CONVICTION AND SENTENCE IN CRIMINAL CASE NO. 1 OF 2018 OF RTHE CHIEF MAGISTRATE'S COURT AT CHUKA)

LAWRENCE NICHOLAS MUTEMBEI..................APPLICANT

VERSUS

REPUBLIC.............................................................RESPONDENT

R U L I N G

1. LAWRENCE NICHOLAS MUTEMBEI, the Applicant herein has moved  this court to revise the order made by Chief Magistrate  Hon J. M. Njorogeon 5th  August 2019 allowing the prosecution to withdraw a charge facing  him under Section 87(a) of the Criminal Procedure Code.  The Applicant  had been charged with 3 counts of the offence of receiving a bribe Contrary  to Section 6(1) (a) as read with Section 18of the Bribery Act No. 47 of  2016.  The particulars given in the charge sheet was that the Applicant being  an employee of Tharaka Nithi County Government on three different  occasions asked to be with 40,000/- (13th June 2018), 20,000/- (13th June  2018) and 20,000/- (13th June 2018) from Charles Mugendi in order to assist  him in prequalification to supply goods to Tharaka Nithi County  Government.

2. This court did call for the lower court file (Chuka Chief Magistrate's Court Anti Corruption Case No. 1/2018) pursuant to the provision of Section 362of the Criminal Procedure Code and I have perused the lower court file  and noted the Applicant denied committing the offence and was released on  bond pending trial which was scheduled for 11th April 2019.  The trial court  could not proceed on the said date and the matter was set for hearing on 15th  July 2019 when the State through the Director of Public Prosecution applied  to withdraw  the charge under Section 87(a) of the Criminal procedure  Code.  The basis for the withdrawal was a letter dated 12th April, 2019 from  the Director of Public Prosecution informing the trial court that they had no  intention of proceeding with the charges.  The trial court was also made  aware of correspondence between the Office of Director of Public  Prosecution and Ethics and Anti- Corruption Commission which  recommendation termination of proceeding owing to lack of evidence.

3. The Applicant had opposed the application by the State to withdraw the   charges under Section 87(a) of the Criminal Procedure Code instead   asking the trial court to withdraw it under Section 202 of the Criminal  Procedure Code.   The trial court however allowed the prosecution to  withdraw the charge under Section 87(a) of the Criminal Procedure Code  and it was that ruling that is the subject of this revision.

4. The grounds upon which the Applicant is seeking the intervention by this  court through revision are as follows:

i. That the trial magistrate made an incorrect decision by allowing withdrawal of the charge under Section 87(a) of Criminal Procedure Code.

ii. The impugned decision was not in accordance with the provisions of Article 157(II) of the Constitution and in particular failing to note that the State had abused court process and infringed on his fundamental right.  The Applicant feels that the trial court did not exercise his discretion judiciously and contends that he should have been acquitted.

5. The Applicant is seeking vacation of the said decision and an order to have  cash bail released to him.  He is seeking that the charge be withdrawn under  Section 204 of the Criminal Procedure Code.  He is also seeking orders in  the alternative which is to direct that the orders be vacated and the matter be  placed before another magistrate for the State to elect to either proceed or  withdraw the matter under Section 204 of the Criminal Procedure Code.

6. The State has opposed this application through a Replying Affidavit by  Erick Momanyi learned prosecuting Counsel from Office of Director of  Public Prosecution where he has deposed that their application to withdraw  the case against the Applicant was based on their re-evaluation of evidence  they had which they found insufficient to link the Applicant with the offence  charged.  He however insisted that the investigation had revealed that the  Applicant accepted monies that could have obscured his judgment in  carrying out his functions thereby undermining his duties in public office  and that it was on that basis that recommended disciplinary action to be  taken by his employer, the County Government of Tharaka Nithi  for the  ethical breaches.

6. The Respondent has further deposed that they saw no need to waste judicial  time by proceeding in a matter that would not promote and achieve the  objectives of Article 157 (II) of the Constitution.

7. I have considered the application and the grounds upon which the matter has  been placed before me.  I have also considered the response made by the  State.

8. The Applicant was dissatisfied with the decision made by the trial court to  allow the State to withdraw a charge facing  him under Section 87 (a)  Criminal procedure Code.  The grievance of the Applicant is mainly  hinged on the exercise of discretion by the trial court.  He says that the  discretion was not exercised judiciously and  that it was wrong in principle.    Although Section 364(5) of the Criminal  Procedure Code provide that  such grounds shall be entertained by way of  appeal rather than revision, I  find that under Article 159(d) of the  Constitution of Kenya I would not be  rendering substantial justice if I direct the Applicant to go back and file an  appeal which would eventually  end here for determination.  It is on that  basis that I entertained this application and I am inclined to determine it on  the merits.

9. There is no dispute that the State applied to withdraw the charge because  they realized that the evidence they had was insufficient to sustain a charge  and that perhaps explain why they applied to withdraw it under Section  87(a) of the Criminal Procedure Code.  I have perused through the letter  written to the trial court and the correspondence between the Director of  Public Prosecution and the Ethics Anti Corruption Commission and looking  at both letters one wonders how the decision was reached in the first place to  prefer charges against the Applicant.  The  Respondent has correctly noted  that their decisions to either charge or discontinue prosecution is guided by  Article 157(II) of the Constitution of Kenya 2010.  Unlike the past when  the decision to prosecute or withdraw such prosecution would be made  arbitrarily and following the whims of State and/or its officers, the new  Constitutional dispensation provide that such decisions must be informed by  public interest, interest of administration of justice and need to prevent abuse  of the court or legal process.

10. This court finds that the Director of Public Prosecution should have on  realizing that their case was headed nowhere, opted to exercise their powers  under Article 157(b)(c) and discontinue the same by entering nolle prosequi  under  Section 82 (1) of the Criminal Procedure Code or he was brave  enough to terminate the proceedings under Section 202 of the Criminal  Procedure Code.

11. It is not fair for the prosecution to act in haste and prefer charges even when  it could be facing pressure from certain quarters.  Their decisional  independence should not be interfered by anyone  because the office is  insulated against such interference by Article 157 (10) of the Constitution  of Kenya.

12. The trial court fell into error by allowing an easy escape route to the  Respondent when it was obvious that they had not done their homework  well before preferring charges against the Applicant.

In the foregoing I find merit in this application.  The order made by the trial  court allowing the Director of Public Prosecution to withdraw charges under  Section 87 (a) is revised and set aside,  in its place the charges against the  Applicant are terminated under Section 202of theCriminal Procedure  Code. He is acquitted of those charges and I direct that the cash bail  deposited be returned to the depositor.

Dated, signed and delivered at Chuka this 14th day of November, 2019.

R. K. LIMO

JUDGE

Ruling signed, dated and delivered in the open court in presence of  Mwongeli holding brief for Nyandieka for Applicant and Momanyi for  Respondent.

R.K. LIMO

JUDGE

14/11/2019