Makenzi v Republic (D.P.P) [2022] KEHC 13609 (KLR)

Makenzi v Republic (D.P.P) (Miscellaneous Criminal Application 91 of 2019) [2022] KEHC 13609 (KLR) (7 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13609 (KLR)

Republic of Kenya

In the High Court at Kakamega

Miscellaneous Criminal Application 91 of 2019

PJO Otieno, J

October 7, 2022

Between

Benmark Makenzi

Applicant

and

Republic (D.P.P)

Respondent

Ruling

1. I have perused the Notice of Motion dated 28/10/2019 and seeking a raft of orders being:-“(a)That the Honourable Court be pleased to issue a stay order in Criminal Case No. 1391 of 2018 at the Chief Magistrate’s Court Kakamega until the determination of this Petition, and Court order to release all his items in the hands of police be issued.(b)That the Honourable Court also be pleased to issue another stay order in Criminal Case No. 1505 of 2019 respectively, at the Chief Magistrate’s Court Kakamega until the determination of this Petition in the interest of justice, also all his items in the hands of police to be released back to his bona fide ownership.(c)That the Honourable Court be pleased to give direction as to how the same orders will take place to meet the ends of justice by issuing an order to avail all these files as above for hearing purposes.”

2. I have equally perused the Affidavit of the Applicant sworn and filed in support thereof as well as the written submissions filed on the 31. 3.2021.

3. I note that the Applicant is facing three different Criminal Cases at the lower Court being CMCCR. Case No. 1391/2018, 1504/2019 and 1505/2019. Of the three files only Criminal Case file No. 1391/2019 has been availed to me for perusal. The Court’s perusal of that file reveals that the accused faces the charges of breaking into a building and committing a felony, preparation to commit a felony, having or conveying suspecting stolen property, forging or receiving forged bank notes and handling stolen property.

4. The file is substantially dealt with, with a total of five (5) witnesses having been heard and six more to be called. The evidence on record reveal that the items taken from the Applicant are the subject of the charges and are thus exhibits. It would appear that the lower court file in CMCCRC. No. 1391/2018 was brought to this Court pursuant to the directions by the Deputy Registrar dated 20/2/2022. I consider that to have been an error because the application is not one for revision questioning the conduct of the proceedings before that Court. That notwithstanding, however, I have perused the evidence taken in that file in line with the dispositions by the Applicant and I do find that the items and property the Applicant seeks to be ordered released to him are indeed treated as exhibits before the trial. I consider that even though I have not read the two other files, the items and property subject thereto may as well be intended as exhibits by the trial Courts.

5. I consider the trial Court to be sufficiently equipped to deal with all matters connected to the case before them including the question whether the possession of the items and property by the police was legal or otherwise. The flip side is that to order the same release by this Court would be to interfere with the manner the trial Courts would proceeds with the case before them and to direct the prosecution on how to execute their mandate. Such could affront the institutional independence of the Prosecution under article 167 and the decisional independence of the Court.

6. I do find that the application is designed to delay and preempt the proceedings before the trial Courts, lacks merit and the same is hereby dismissed.

7. Let the lower Court file No. CMCCRC. No. 1391/2018 be remitted back to that Court forthwith for same to be mentioned before the Judicial Officer seized of the matter within twenty one (21) days from today for purposes of having the matter progressed and heard on the merits.

DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 7TH DAY OF OCTOBER, 2022. PATRICK J. O. OTIENOJUDGEIn the presence of:No appearance for the ApplicantMs. Chala for the RespondentCourt Assistant: Polycap Mukabwa