Ordering cases to start a fresh without any basis amounts to abuse of court process

Office of Director of Public Prosecutions v Peter Onyango Odongo & 2 others

Petition 2 of 2015

High Court at Siaya

J A Makau, J

December 17, 2015

Reported By Nelson Tunoi & Silas Kandie

Statutes - interpretation of statutes - interpretation of section 200(3) of the Criminal Procedure Code - whether section 200(3) of the Criminal Procedure Code violated article 159 the Constitution of Kenya, 2010 - whether section 200(3) of the Criminal Procedure Code was unconstitutional - guiding principles in determining unconstitutionality of statute -Constitution of Kenya, 2010, article 159.

Criminal practice and procedure  – application to recall witness – application to recall witness where evidence partly recorded by one magistrate and partly by another – whether an application to recall witnesses could be granted where the accused had the opportunity to cross-examine witnesses and where the matter had been in court for four (4) years – Criminal  Procedure Code (cap 75) section 200(3)

Constitutional Law – fundamental rights and freedoms – rights of the child – whether the ruling of the trial Court to have the case to start de novo on a defilement charge was granted against the rights of a child – Constitution of Kenya, 2010, articles 53(1)(d) and 53(2)

Constitutional Law –fundamental rights and freedoms – right to a fair hearing – a complainant’s right to a fair hearing – whether a ruling by a trial court in a case  that was pending for 4 years to start de novo was a breach of the complainant’s right to a fair hearing – Constitution of Kenya, 2010, article 50(1)

Constitutional Law – fundamental rights and freedoms – right to human dignity – a complainant’s right to human dignity – whether a ruling by a trial court ordering a matter to start de novo is a violation to a complainant’s right to human dignity – Constitution of Kenya, 2010, article 28

Brief facts

The 1^st Respondent was charged with the offence of defilement contrary to section 8(1) of the Sexual Offences Act No. 3 of 2006 on November 9, 2010 before a trial court at Siaya.  The case against the 1^st Respondent commenced on June 25, 2012 and the Petitioner called five (5) witnesses before the preceding magistrate who was transferred in April 2013 having handled the matter lastly on March 19, 2013.

The matter was taken over by his predecessor on May 7, 2013, who complied with the provisions of section 200(3) of the Criminal Procedure Code and the defence intimated they wished to continue with the case from where it had reached. On July 30, 2013 the Petitioner closed its case and on the same day the 1^st Respondent's counsel sought a date for submissions. Before submission were made and ruling delivered, the trial court was transferred and the matter taken over by another Magistrate, who also complied with section 200 (3) of the Criminal Procedure Code. Later, the file was allocated to another Magistrate who ruled that the case should start de novo.

Issues

1. Whether section 200(3) of the Criminal Procedure Code on evidence partly recorded by one magistrate and partly recorded by another one was unconstitutional.
2. Whether section 200(3) of the Criminal Procedure Code was silent on the rights of the Complainant regarding fair hearing?
3. Whether the ruling directing the case to start de novo (afresh) could be declared illegal and quashed by the High Court?
4. Whether the High Court could order the matter to proceed for submission and judgment as the order of the first succeeding trial court.

Relevant provisions of the Law

Section 200(3) of the Criminal Procedure Code:-

200 (1) Subject to subsection (3), where a magistrate, after having heard and recorded the whole or part of the evidence in a trial, ceases to exercise jurisdiction therein and is succeeded by another magistrate who has and exercises that jurisdiction, the succeeding magistrate may -

 (a) Deliver a judgment that has been written and signed but not delivered by his predecessor; or

 (b) Where judgment has not been written and signed by his predecessor, act on the evidence recorded by that predecessor, or resummon the witnesses and recommence the trial.

 (3) Where a succeeding magistrate commences the hearing of proceedings and part of the evidence has been recorded by his predecessor, the accused person may demand that any witness be re-summoned and reheard and the succeeding magistrate shall inform the accused person of that right.

Held

1. Section 200(3) of the Criminal Procedure Code (CPC) was intended to address the mischief that arose when a particular Magistrate commenced hearing of proceedings where act of evidence had been recorded by his predecessor, without explaining to the accused of his rights to resummon or recall witness as how far evidence by the succeeding Magistrates predecessor. The section was intended to protect the rights of an accused to a fair trial and give the succeeding Magistrate an opportunity to note the demeanor of the witnesses and then by Court receives a just decision.
2. Section 200(3) of Criminal Procedure Code gave accused person discretion to demand to have any witnesses recalled. The section made it mandatory for the succeeding Magistrate to inform the accused person of his right to have any of the witness recalled for cross-examination or to testify against. It was not fair to recall the witnesses for either cross-examination or to give evidence that the section was concerned with but the failure to refer the accused of his right under that section that rendered the subsequent proceedings a nullity.
3. Section 200(3) of the Criminal Procedure Code protected the rights of the accused to a fair trial as guaranteed by the Constitution of Kenya, 2010 under article 50(a)(2), which stated that any accused person had a right to a fair trial, which included other rights as set out thereunder. The section as framed did not have any provision to protect the rights of the Complainant.  It was silent on the rights of the Complainant.
4. The succeeding Magistrate before determining the accused persons’ demand for retrial or recalling of any witnesses, section 200(3) provided that it was not mandatory for the accused person’s demand to be granted or allowed, the succeeding Magistrate should not deal with section 200 (3) of Criminal Procedure Code in isolation of several articles of the Constitution dealing with the Bill of Rights as the said sections were not exhaustive in itself. 
5. The trial court was supposed to be guided by article 27(1) of the Constitution of Kenya, 2010 which stated every person was equal before law and had rights to equal protection and equal benefit of the law. That meant the protection to fair trial automatically granted to both the complainant and the accused. It meant that before final order was made the Complainant should be afforded an opportunity to be heard on the application. A blatant granting of the application without hearing the complainant would not only be against the rules of natural justice but a violation of the letter and the spirit of the Constitution of Kenya, 2010 and would not be in the best interest of achieving a fair trial.
6. Regarding the information given to the accused, the same information should have been extended to the complainant in equal measure. Article 159(2)(a)(b) and (d) of the Constitution of Kenya, 2010 dealt with justice to all irrespective of status, justice not being delayed and to be administered without undue regard to procedural technicalities. 
7. In determining an application under section 200(3) of Criminal Procedure Code, courts should comply with article 28 of the Constitution of Kenya, 2010, which provides that every person has inherent dignity and right to have that dignity respected and protected.  Further under article 47(1) of the Constitution of Kenya, 2010 every person has the right to administrative actions that is expeditious, efficient, lawful, reasonable and procedurally fair. Article 53(d) of the Constitution of Kenya, 2010 stated every child had a right to be protected from abuse, neglect, harmful cultural practices all forms of  violence inhuman treatment and punishment  and article 53 (2) provided a child's best interest were of paramount importance in every matter concerning the child.
8. It should be in the mind of any judicial officer that under article 2(1) of the Constitution of Kenya, 2010, the Constitution is the supreme law of the Republic of Kenya.  That at birth all persons and all state organs at both level of government and under article 2(4) that any law, including customary law, that was inconsistent with that Constitution was void to extent of the inconsistency, and any act or  omission in contravention of the constitution was invalid.
9. The application of section 200(3) Criminal Procedure Code was commonly abused especially where the application was made with a view to defeat the ends of justice specially where the accused knew the witnesses could not be traced or were dead; or the Complainant could not be traced or could not get the witnesses without many enormous expense; or the application was made to cause witnesses to have no faith with the court system and fail to turn up; or where the case had been pending for long period without being determined. Such applications for witnesses to be recalled should not be granted especially where the accused had the opportunity to cross-examine witness and specifically where the matter had been persisting for a long time. Granting such application might be acting contrary to articles 47, 50(2)(e) and 159(2)(d) of the Constitution of Kenya, 2010, which demanded that justice should not be delayed, and trial should be concluded without unreasonable delay and lastly any one has a right to administrative action that was expeditious, efficient, lawful, reasonable and procedurally fair.
10. The ruling of the trial court ordering the case to  start de novo was unconstitutional as it was granted against the rights of a child under article 53(1)(d) and (2); article 50(1) in that it failed to note every person had the right to have a dispute resolved in a fair and public hearing before a Court when he issued an order without giving the prosecution right of evidence; article 159 (2), (a) (b) and (d) of the Constitution in that justice was not done to the complainant by failing to give the complainant right of fair hearing; and by failing to note that the matter was pending before Court for 4 years.
11. Section 200 (3) of the Criminal Procedure Code was constitutional and valid as it protected the rights  of an accused person to a fair trial in terms of article 50 of the Constitution of Kenya 2010. However the same was not  exhaustive in that it was silent on the  rights of the complainant in cases taken over by succeeding Magistrate, however, notwithstanding, the succeeding Magistrate had an obligation before making final orders to invoke the provisions of the Bill of rights  to ensure the complainant's rights to a fair trial factored in.

Appeal partly allowed, each party to bear its own costs.

Orders

1. The trial Magistrate order for the case to start de novo quashed and set aside.
2. The Prayers for suit to proceed for submission and judgment rejected.
3. The matter to proceed before another Magistrate from where it had reached.
4. The succeeding Magistrate to comply with Section 200 (3) of Criminal Procedure Code and invoke the provisions of the Bill of rights as   enshrined in the Constitution.