Republic v Alexander Kipkoech Birgen [2022] KEHC 2354 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT ELDORET

CRIMINAL REVISION NO. 5 OF 2020

REPUBLIC....................................................APPLICANT

-VERSUS-

ALEXANDER KIPKOECH BIRGEN.....RESPONDENT

Coram:   Hon. Justice R. Nyakundi

Mugun for the state

Mr Tito for the accused

RULING

What is before this court is an application for Revision of the orders in CMCR No. 2888 of 2018 expressed to be brought under Section 362 and 364 of the Criminal Procedure Code, Cap 75 of the Laws of Kenya. The applicant seeks to have the court call for the proceedings to satisfy itself as to the correctness, legality or propriety of the orders made on 13th January 2020.

The application is based on the grounds that the accused was charged with two counts of abduction with intent to confine. When the prosecution called the 3rd witness on 22nd July 2019 it was informed that there was an order that the matter was to start afresh but the circumstances that necessitated the order are not clear. Before the investigating officer could trace the witnesses and bond them again it was granted the last adjournment.

According to the Prosecution counsel, on 13th January 2020 the prosecution sought an adjournment as there witnesses had not been bonded by the police. The trial court exercising its discretion having effected the very last adjournment order, declined any further leave for the prosecution to adduce evidence in the matter. The final strand of the case was to rule on the evidence so far tendered by the prosecution against the accused. In light of the trial court held that the accused had a case to answer.

From my perusal of the application I have identified one issue for determination;

Whether the prosecution case should be reopened

The bone of contention is the correctness and propriety of the court in conducting the trial, more specifically, in closing the prosecution case. Further, the jurisdiction of the court with regards to controlling the pace of cases and the termination of cases comes into question. At what point does the court exercise its discretion to ensure the case proceeds expeditiously.

The last adjournment was given on 2nd October 2019 and another last adjournment given on 28th October 2019 and a hearing date set for 13th January 2020. I note that from the record, the prosecution was ready to proceed but the investigating officer was not ready to proceed because he had just taken the file.

I note that the trial court did not give reasons for its granting of two last adjourments.it is contradictory to issue a last adjournment and purport to grant another last adjournment. The fact that there were two last adjournments brings the credibility of the court into question which poses a great threat to the ability of the court to deliver justice in the eyes of the public. The trial court appeared to be held hostage by the last adjournment it had initially granted and lost control of the proceedings.

On the said 13th January 2020 when the matter came up for hearing the prosecution sought an adjournment as it had not yet bonded a witness. The court gave a ruling date of 21st February 2020. On 21st February the trial court delivered a ruling where it found that the accused had a case to answer and closed the prosecution’s case. I am cognisant of the fact that the trial court must not be held hostage by the prosecution, but I also take into consideration that the prosecution acts in good faith and in the interest of the victims. The prosecution does not fully control the availability of witnesses and the court must take this into consideration when conducting matters especially when the said witnesses are members of the police force.

The witness in question was a police officer who had just received the file and was unable to proceed. To then give a last adjournment, another last adjournment and close the prosecution case suo moto without giving any reasons as to its exercise of the discretion to do so is improper. Further, the court is an institution mandated to enforce justice and it ought to have explored all other options before it to ensure that the witness was produced in court. A warrant of arrest would have been sufficient to show that the court explored the available options ensure the court had all evidence adduced before it that was necessary in making the decision as to whether there was a case to answer. The victim and the accused are both deserving of a fair trial as envisaged by Article 50 of the Constitution. The decision to close the prosecution case violated the equality of arms.

Article 165(6) and (7) of the Constitution confers upon this Court supervisory jurisdiction over subordinate courts and empowers this Court to make any order to give any direction it considers appropriate to ensure fair administration of justice.

Section 362 of the Criminal Procedure code provides;

The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.

Section 364(1)(b) of the Criminal Procedure Code provides;

(1) In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may—

in the case of any other order other than an order of acquittal, alter or reverse the order.

In particular as noted from the record, the decision invoking the motion of a case to answer arose immediately after stopping the prosecution from summoning further evidence against the accused. A careful review of this case suggests that the trial court did not consider that the standard for the assessment of prosecution case rest upon the ultimate precise of Article 50 of the Constitution on a right to a fair hearing and the cannons of the Criminal Procedure Code. The true significance of the prosecution complaint lies in an appreciation of the fact that the trial court did not give reasons for the verdict of declining an adjournment, starting from the anchored order of last to the very last adjournment.

In the context of the critical inquiry on the ruling for a motion of a case to answer, the similarity of the language employed to describe the applicable test for the sufficiency of evidence is neither supported by cogent reasons to exercise that judicial discretion. As a consequence whereof pursuant to section 362 of Criminal Procedure Code as read in conjunction with Article 165(6)&(7) of the Constitution all the steps taken, actions suffered and orders passed by the trial court which impact on the dual process clauses in Article 50 of the Constitution including the order on  prima facie case recorded in favour of the prosecution are declared never to have existed in the eyes of the law.

The resultant effect is to have them set aside. Therefore the case docket shall be moved from the session Magistrate for the Chief Magistrate Eldoret, to take remedial action to allocate the aforementioned CMCR NO. 2888 OF 2018 to another court with concurrent jurisdiction to hear and determine the issues against the accused on a priority basis.

It is so ordered.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 14TH DAY OF FEBRUARY, 2022.

............................

R. NYAKUNDI

JUDGE

In the presence of:-

1. Accused