David Kenani Maraga, Isaac Lenaola, Mohammed Khadhar Ibrahim, Smokin C Wanjala, Susanna Njoki Ndungu
Joseph Lendrix Waswa v Republic  eKLR
An advocate acting for the victim can actively participate in criminal proceedings to safeguard their constitutional and statutory rights
Joseph Lendrix Waswa v Republic  eKLR
Petition No. 23 of 2019
Supreme Court of Kenya
DK Maraga CJ & P; MK Ibrahim, SC Wanjala, NS Ndungu & I Lenaola, SCJJ
September 4, 2020
Reported by Kakai Toili
Constitutional Law - fundamental rights and freedoms - enforcement of fundamental rights and freedoms - right to a fair trial – where the advocate of the family of the victim in a criminal trial sought to be allowed to actively participate in the trial - whether an advocate acting for a victim could be permitted to actively participate during criminal proceedings to safeguard the victim’s constitutional and statutory rights - guiding principles in determining whether a victim or his legal representative could participate in a criminal trial - manner and extent of the participation - whether in allowing such an advocate to actively participate in the criminal proceedings would violate the accused person’s right to a fair trial - what were the benefits of an expeditious trial - Constitution of Kenya, 2010, articles 20(3), 27, 50, 159(2(b) and 259(1) and(3); Victim Protection Act, 2014, sections 9.
Constitutional Law – Director of Public Prosecutions – functions – prosecution of crimes - where the advocate of the family of the victim in a criminal trial sought to be allowed to actively participate in the trial - whether a victim or his legal representative could prosecute crimes on behalf of the Director of Public Prosecutions - Constitution of Kenya, 2010, article 157; Victim Protection Act, 2014, 9(2)(a).
Criminal Law – appeals – criminal appeals – interlocutory appeals in criminal trials - whether a party in a criminal trial could appeal against an interlocutory ruling, and if so, at what time should the appeal be made - what were the circumstances in which an interlocutory appeal could be allowed – Constitution of Kenya, 2010, article 50(2)(q); Criminal Procedure Code (Cap 75), sections 347 and 379(1).
Jurisdiction – jurisdiction of appellate courts – jurisdiction to interfere with the exercise of discretion by a trial court - what were the circumstances in which an appellate court could interfere with exercise of discretion of a trial court.
The appellant was charged with the offense of murder in the trial court. After nine witnesses for the prosecution had testified, counsel for the family of the deceased (the victim) made an oral application for leave to actively participate in the proceedings. The trial court observed that the law had shifted the traditional parameters of a victim in a criminal case and therefore a victims’ counsel could no longer be considered a passive observer in criminal proceedings. However, the trial court noted that the counsel for the victim could not be active and parallel to that of the prosecutor.
Consequently, the trial court allowed the participation of the counsel watching brief limited to the following instances: on submission at the close of the prosecution case whether there was a case to answer; final submission should the accused be put on his defence; on points of law should such arise in the course of trial, and upon application at any stage of the trial for the consideration by the court.
Aggrieved by the trial court’s ruling, the appellant lodged an appeal to the Court of Appeal. The Court of Appeal being satisfied that the impugned rights given by the trial court to the victim of the offence (the father of the deceased) were in conformity with the Constitution of Kenya, 2010 and the Victim Protection Act, 2014 (VPA), upheld the ruling of the trial court and dismissed the appeal in its entirety. Aggrieved by the decision of the Court of Appeal, the appellant filed the instant appeal.
Whether an advocate acting for the victim could be permitted to actively participate in criminal proceedings to safeguard the victim’s constitutional and statutory rights.
Whether allowing an advocate acting for the victim to actively participate in the criminal proceedings would violate the accused right to a fair trial by exposing them to double prosecution.
What were the guiding principles in determining whether a victim or his legal representative could participate in a trial and the manner and extent of the participation?
Whether a victim or his legal representative could prosecute crimes on behalf of the Director of Public Prosecutions.
Whether a party in a criminal trial could appeal against an interlocutory ruling, and if so, at what time should the appeal be made?
What were the circumstances in which an interlocutory appeal could be allowed?
What were the circumstances in which an appellate court could interfere with the exercise of discretion of a trial court?
Relevant provisions of the law
Constitution of Kenya, 2010
In applying a provision of the Bill of Rights, a court shall—
develop the law to the extent that it does not give effect to a right or fundamental freedom; and
adopt the interpretation that most favours the enforcement of a right or fundamental freedom.
This Constitution shall be interpreted in a manner that—
promotes its purposes, values and principles;
advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights;
permits the development of the law; and
contributes to good governance.
Every provision of this Constitution shall be construed according to the doctrine of interpretation that the law is always speaking…
As the overriding element of State control inevitably pit the power of the State against the accused, the necessity of protecting the accused’s rights within that power imbalance arose to ensure that there was equality of arms. However, that could inadvertently eclipse the recognition of the victim’s inherent interest in the response by the criminal justice system to the crime. Kenya’s progressive Constitution had captured and addressed all those scenarios.
The right to fair hearing was provided for under article 50(1) of the Constitution and the attendant rights of an accused person were set out in article 50(2). The Constitution also recognized victims of offences. In addition to the constitutional underpinning, the Victim Protection Act (VPA) was enacted deliberately in 2014 to give effect to article 50(9). Thus, the rights of victims in a trial process also had statutory underpinning.
Although the adversarial criminal trial process was a contest between the State, represented by the Director of Public Prosecutions (DPP), and the accused, usually represented by defence counsel and the traditional role of victims in a trial was often perceived to be that of a witness of the prosecution, that flowing from both the Constitution and the Victim Protection Act (VPA) and in particular section 9(2)(a) of the VPA, a victim too, had the right to participate in criminal proceedings.
The participation of victims in criminal trial proceedings, though a novel trend in Kenyan laws, was in accord with international developments that had embraced the place of victims in the trial process. Kenya’s Constitution under articles 2(5) and (6) permitted the court to apply the general rules of international law and also provided that any treaty or convention ratified by Kenya formed part of the law of Kenya.
The role of a victim in a criminal trial was recognized in the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (1985). In that Declaration, in the context of the criminal justice system, it was a central obligation of governments to comply with the victim’s rights to access to justice and fair treatment, restitution, compensation and assistance.
Under article 68(3) of the Rome Statute, of the International Criminal Court (ICC) victims before the ICC were granted far-reaching rights. In light of the large degree of discretion accorded to the judges conducting the trial, the practice of the ICC had developed to allow victims:-
to make an opening and closing statement (that was also in consonance with rule 89(1) of the ICC Rules of Procedure and Evidence);
to attend and participate in hearings and status conferences through written submissions and oral argument;
to introduce evidence and challenge admissibility of evidence with leave of the court; and
to question witnesses and/or the accused under the strict control of the court. Where there were a large number of victims admitted to participate in the proceedings, the court could limit the number of lawyers representing them pursuant to rule 90(2)-(4) of the ICC Rules of Procedure and Evidence.
The emerging picture from other jurisdictions was that the criminal justice processes should empower victims and their voices should be heard, not only as witnesses for the prosecution but as rights holders with a valid interest in the proceedings and the outcome of the cause.
Article 259(1) and (3) of the Constitution was instructive on how to construe their rights under article 50(9) of the Constitution. Articles 20(3) and 50(9) of the Constitution read together with the Victims Protection Act (VPA) affirmed that victims had rights in Kenya’s criminal justice system. Those rights were stipulated in section 9 of the Victims Protection Act (VPA). Article 27 of the Constitution also provided that every person was equal before the law and had the right to equal protection and equal benefit of the law. Both the Constitution and the Victims Protection Act (VPA) sought to ensure the fairness of justice procedures applied to both the victims and accused particularly on the right to a fair hearing, timeliness, respect, dignity, and neutrality.
The trial court being an impartial entity that oversaw the progress of a case had the ultimate function of determining the accused’s guilt or innocence. Its aim was to establish the truth. The purpose of criminal proceedings, generally, was to hear and determine finally whether the accused had engaged in conduct which amounted to an offence and, on that account, was deserving of punishment. Thus, the rights of the accused could not be considered in isolation without regard to those of the victim. Victims too had a legitimate interest in the court’s exercise of its jurisdiction. The criminal justice system should cultivate a process that inspired the trust of both the victim and the accused.
Considering the rights of the accused, the victim and society as a whole in a criminal trial was not only fair, pragmatic but also constitutionally viable. The trial court had to protect the rights of all parties involved in criminal proceedings. There was a public interest in ensuring that trials were fair. That interest could be served by safeguarding the rights of the accused, the objectivity of the prosecution and, by acknowledging the victim’s interest. The rights of the accused and the public interest should be secured and fulfilled. The rights of victims did not undermine those of the accused or the public interest. The true interrelationship of the three was complementary. The participatory rights of the victim did not violate the fair trial rights of the accused. A victim could participate in a trial in person or via a legal representative.
Once a victim or his legal representative made an application to participate in a trial, it was the duty of the trial court to evaluate the matter before it, consider the victim’s views and concerns, their impact on the accused person’s right to a fair trial, and subsequently, in the trial court’s discretion, determine the extent and manner in which a victim could participate in a trial. Since participatory rights were closely related to the rights of the accused and the right to a fair and expeditious trial, they should be granted in a judicious manner which did not cause undue delay in the proceedings and thus prejudice the rights of the accused.
Discretionary pronouncements of a court formed an integral part of a court’s jurisdiction and should not be interfered with unless an appellate court was satisfied that the exercise of that discretion was improper and, therefore, warranted interference. A court had to be satisfied that the trial court in exercising discretion misdirected itself and had been clearly wrong in the exercise of the discretion and that as a result, there had been injustice. In the instant case, there was no need to interfere with the trial court’s discretionary pronouncements.
Article 157(1) of the Constitution established the office of the DPP. The State’s prosecutorial powers were vested in the DPP under article 157 of the Constitution. That office, under article 157(10), neither required the consent of any person to institute criminal proceedings nor was it under the direction or control of any person or authority. Those provisions were also replicated in section 6 of the Office of the Director of Public Prosecutions Act, 2013. The office of the DPP was the sole constitutional office with the powers to conduct criminal prosecutions.
The victim had no active role in the decision to prosecute, or the determination of the charge upon which the accused would finally be tried. That was the sole duty of the DPP. While the victim of a crime could participate at any stage of the proceedings as deemed appropriate by the trial court, a victim or his legal representative did not have the mandate to prosecute crimes on behalf of the DPP. The DPP had to at all times retain control of, and supervision over the prosecution of the case. As such, the constitutional and statutory power of the DPP to conduct the prosecution was not affected by the intervention of the victim in the process.
A victim could not and did not wear the hat of a secondary prosecutor. When victims presented their views and concerns in accord with section 9(2) (a) of the Victim Protection Act (VPA), victims were assisting the trial court to obtain a clear picture of what happened (to them) and how they suffered, which the trial court could decide to take into account. Victim participation should meaningfully contribute to the justice process. However, that did not mean that the court’s judgment would follow the wishes of the victim. The trial court would take into account the law, facts, all the different interests, and concerns, including the rights of the defence and the interests of a fair trial to arrive at a sagacious decision.
The following guiding principles would assist the trial court when it was considering an application by a victim or his legal representative to participate in a trial and the manner and extent of the participation:-
the applicant had to be a direct victim or such victim’s legal representative in the case being tried by the court;
the court should examine each case according to its special nature to determine if participation was appropriate, at the stage participation was applied for;
the trial court had to be satisfied that granting the victim participatory rights should not occasion an undue delay in the proceedings;
the victim’s presentation should be strictly limited to the views and concerns of the victim in the matter granted participation;
victim participation should not be prejudicial to or inconsistent with the rights of the accused;
the trial court could allow the victim or his legal representative to pose questions to a witness or expert who was giving evidence before the court that had not been posed by the prosecutor;
The trial court had control over the right to ask questions and should ensure that neither the victim nor the accused were not subjected to unsuitable treatment or questions that were irrelevant to the trial;
the trial court should ensure that the victim or the victim’s legal representative understood that prosecutorial duties remained solely with the DPP;
while the victim’s views and concerns could be persuasive; and in the public interest that they were acknowledged, those views and concerns were not to be equated with the public interest;
the court could hold proceedings in camera where necessary to protect the privacy of the victim;
while the court had a duty to consider the victim’s views and concerns, the court had no obligation to follow the victim’s preference of punishment.
The right to have a trial commence and conclude without unreasonable delay was an accused person’s constitutional guarantee under article 50(2)(e) of the Constitution. A victim also had the right to have the trial begin and conclude without unreasonable delay under section 9(1)(b) of the Victim Protection Act (VPA). In addition, article 159(2)(b) of the Constitution obligated courts not to delay justice. Further, treaties and international instruments that Kenya had ratified such as the African Charter on Human and People’s Rights, Rome Statute of the ICC, and the International Covenant on Civil and Political Rights (ICCPR) contained similar provisions, that bound the court in all criminal justice procedures and processes.
The benefits of an expeditious trial could not be gainsaid. A speedy trial ensured that the rights of the accused person were secured; it minimized the anxiety and concern of the accused; it prevented oppressive incarceration; and protected the reputation, social and economic interests of the accused from the damage which flowed from a pending charge. It also protected the interests of the public, including victims and witnesses, and ensured the effective utilization of resources. Additionally, it lessened the length of the periods of anxiety for victims, witnesses, and their families and increased public trust and confidence in the justice system.
In conformity with the Constitution, courts should shun situations where an accused’s right to a fair trial was prejudiced by virtue of undue delay. Courts possessed the power to take appropriate action to prevent injustice. That power was derived from the public interest that trials were conducted fairly and that as far as possible the accused was tried without unreasonable delay the end goal being to achieve prompt justice in criminal cases.
There was no provision in both the Constitution and the Criminal Procedure Code (CPC) for interlocutory criminal appeals. The Constitution under article 50(2)(q) provided that every accused person had the right, if convicted, to appeal to, or apply for review by, a higher court as prescribed by law. Similarly, the CPC under sections 347 and 379(1) only allowed appeals by persons who had been convicted of an offence.
The delay of over six years defeated the intention of the framers of the Constitution and of Parliament to have criminal trials concluded expeditiously. The guarantee to have a criminal trial conducted without undue delay related not only to the time by which a trial should commence but also the time by which it should end, judgment rendered and any applicable appeals or reviews completed. Therefore, although criminal trials were not time bound like election petitions, there was need to have them determined expeditiously in line with the constitutional prescriptions.
The right of appeal against interlocutory decisions was available to a party in a criminal trial but should be deferred, and await the final determination by the trial court. A person seeking to appeal against an interlocutory decision had to file the intended notice of appeal within 14 days of the trial court’s judgment. However, exceptional circumstances could exist where an appeal on an interlocutory decision could be sparingly allowed, these included:-
where the decision concerned the admissibility of evidence, which, if ruled inadmissible, would eliminate or substantially weaken the prosecution case;
when the decision was of sufficient importance to the trial to justify it being determined on an interlocutory appeal; and
where the decision entailed the recusal of the trial court to hear the cause.
For the avoidance of doubt, the determination in Criminal Appeal No. 132 of 2016 was upheld.
In view of the inordinate delay of the original murder trial, occasioned by appeals relating to an interlocutory matter, the substantive matter was directed to be heard and determined on the basis of priority.
1. Aukot, Ekuru v Independent Electoral & Boundaries Commission & 3 others Petition 471 of 2017;eKLR-(Cited)
2. Cholmondeley v Republic  KLR 190 -(Followed)
3. In re the Matter of the Interim Independent Electoral Commission  2 KLR 223-(Cited)
4. Kamau, John Njenga v Republic, Criminal Appeal No 63 of 2014;  eKLR-(Followed)
5. Kigula and others v Attorney General 1 EA132-(Cited)
6. Loitiptip, Anuar v Independent Electoral & Boundaries Commission & 2 others, Petition No 18 Consolidated with Petition No 20 of 2018;  eKLR-(Followed)
7. Maingi, Sheila Kinya v Republic, Criminal Appeal No 388 of 2008;  eKLR –(Followed)
8. Maur Abdalla Bwanamaka v Director of Public Prosecutions & another, Petition no 23 0f 2018;  eKLR-(Followed)
9. Mong’are, Dennis Mogambi v Attorney General & 3 others, Civil Appeal No 123 of 2012;eKLR –(Cited)
10. Ndegwa v Republic  KLR 534 –(Cited)
11. Ndyanabo v Attorney General  2 EA 485-(Cited)
12. Paul Ssemogerere and others v The Attorney General, Constitutional Appeal No 1 of 2002  UGSC10 –(Cited)
13. Republic v Director of Public Prosecutions & 3 others exparte Meridian Medical Centre Ltd & 7 others Miscellanous Application 363, 362,375 7 405 of 2013;eKLR –(Followed)
14. Salat, Nicholas Kiptoo Arap Korir v Independent Electoral and Boundaries Commission & 7 others SC. Application No 16 of 2014;  eKLR- (Affirmed)
15. Tinyefuza v Attorney general of Uganda, Constitutional Petition No 1 of 1997 (UGCC3)-(Cited)
Bakare v State 1985 2NWLR- (Cited)
1. Hiralal Ratanlal v Sito 1973 AIR 1034, 1973 SCR (2) 502-(Cited)
2.Mallikarjun Kodagali (Dead) represented through Legal Representation/Appellants v State of Karnataka & others Criminal Appeal NOS1281-82 of 2018
3. Zahira Habibulla H Sheikh & another v State of Gujarat & others 446-449 of 2004-(Cited)
1. Ng Ka Ling & another v Director of Public Immigration (1999) 1HKLRD 315 –(Cited)
2. R v Big Drug Mart Ltd.,  1 SCR 295 – (Cited)
United States of America
1. Marbury v Madison, 5 US (1Cranch)137- (Cited)
2. South Dakota vs North Carolina 192 US 268 (1940) L ED –(Cited)
1. Attorney General of the Gambia v Jobe (1985) LRC – (Cited)
2. Attorney-General’s Reference (No 3 of 1999)  2 AC 91 -(Followed)
3. Direct United States Cable Co v The Anglo-American Telegraph Co (1877) 2 AC –(Cited)
4. R v H  2 AC 134-(Approved)
European Human Rights Court
1. Sheffield and Horsham v United Kingdom (1998) 27 EHRR 163 –(Followed)
2. Sporrong and Lönnroth v Sweden (1982) 5 EHRR 35 – (Followed)
1. Constitution of Kenya, 2010 articles 2(4)(5)(6);10;19;20(1)(2)(3)(4);21;25(c);27;50(1)(2)(j)(7)(9);48;157; 163(4) (a) ;259(1)(3)
2. Court of Appeal Rules (cap 9 Sub Leg) rule 75 – (Interpreted)
3. Criminal Procedure Code (cap 75) sections 137, 150,329 A- E, 347,379(1)-(Interpreted)
4. Office of the Director of Public Prosecutions Act, 2013 (Act No 3 of 2013) section 6 –(Interpreted)
5. Penal Code (cap 63) sections 203, 204-(Interpreted)
6. Supreme Court Act, 2011 (Act No 7 of 2011) section 3 –(Interpreted)
7. Supreme Court Rules, 2012 (Act No 7 of 2011 Sub Leg) rules 3, 9, 33 – (Interpreted)
8. Victim Protection Act, 2014 (Act No 17 of 2014) sections,2 3,4(a)(2)(b); 9(1) (2)(a)(b)(10)(a)(b)(c) –(Interpreted)
1.Canadian Victim Bill of Rights Act, 2015 sections 14,20 – (Interpreted)
1.Germany’s Code of Criminal Procedure §§ 395- 402, §§ 397 – 401 –(Interpreted)
2. Germany’s Victim Protection Act (Opferschutzgesetz) 1986
Rome Statute of the International Criminal Court (ICC)
1. Rome Statute , 1998 article 68(3) –(Interpreted)
2. International Criminal Court Rules of Procedure and Evidence,2000 rules 89(1); 90 (2)-(4)- (Interpreted)
1. Police and Criminal Evidence Act 1984 section 64(3B) –(Interpreted)
1. African Charter on Human and People’s Rights (Banjul Charter) article 7
2. European Convention on Human Rights (ECHR) 1950 article 6
3. International Covenant on Civil and Political Rights (ICCPR) article 14(3)(c)
4. United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (1985)
1. Mr George Marunga for the family of the deceased (the victim)