Initiation of murder trial at the High Court limited the accused person’s right to fair trial

Charles Henry Nyaoke v Cabinet Secretary, Ministry of Interior and Co-ordination of National Government & 4 others [2020] eKLR

Petition No. 7 of 2018

High Court at Kisumu

J C Lesiit, L K Kimaru & K Kimondo, JJ

November 27, 2020

Reported by Chelimo Eunice

Jurisdiction – jurisdiction of the High Court –unlimited original jurisdiction of the High Court in criminal civil matters – extent to which the High Court could exercise original criminal jurisdiction – whether the High Court had unlimited original jurisdiction to hear and determine murder charges - whether the offence of murder could be tried before the Magistrates’ Court – what were the benefits of initiating murder trials at the Magistrates’ Courts as opposed to the High Court – whether the initiation of murder trial at the High Court, instead of the Magistrates’ Court was discriminatory and/or limited the accused person’s right to a fair trial - Constitution of Kenya, 2010, articles 2, 25, 27, 50, 162, 165(3) and 169; Criminal Procedure Code, sections 3, 4, 5, 347, 348, 362 and 364.

Constitutional Law – interpretation of the Constitution – principles guiding courts in interpreting the Constitution – interpretation of article 165(3)(c) of the Constitution on unlimited original jurisdiction of the High Court in criminal matters – what was the extend of the High Court’s jurisdiction to hear and determine criminal matters in exercise of its original jurisdiction - Constitution of Kenya, 2010, articles 165(3), 259.

Civil Practice and Procedure – res judicata – what constituted the doctrine of res judicata – application of the doctrine of res judicata - conditions of applying the doctrine of res judicata.

Words and Phrases – discrimination – definition of discrimination - the effect of a law or established practice that confers privileges on a certain class because of race, age sex, nationality, religion or hardship - differential treatment especially a failure to treat all persons equally when no reasonable distinction can be found between those favoured and those not favoured - Black’s Law Dictionary, 9^th Edn.

Brief facts

The petitioner and two other persons were charged at Kisumu High Court for murder contrary to section 203 as read with section 204 of the Penal Code. The petitioner challenged various laws, including sections 3 and 5 and the first schedule of the Criminal Procedure Code and sections 211 and 212 of the Penal Code (impugned provisions), to the extent that they provided for trial of offences set out in the Penal Code to commence before the High Court. The petitioner contended that persons charged with the offence of murder suffered discrimination and unequal treatment before the law, which violated their right to equal protection and equal benefit of the law, as well as freedom from discrimination. That origination of murder trial at the High Court denied a convicted person one level of appeal. That the delay occasioned by the time taken to try cases before the High Court compared to trials held before Magistrates’ Courts amounted to denial of access to justice.

The 1^st, 2^nd and 5^th respondents opposed the petition arguing that the commencement of murder trials before the High Court was not discriminatory. They urged that the impugned provisions which gave a differentiation in the courts handling criminal cases, did not offend the provisions of article 27 of the Constitution for providing for murder and treason to be tried before the High Court and that only unfair discrimination was disallowed by the law. They submitted that the petition was res judicata and was subject to judgment in rem. That the issues raised were determined and finally settled in Peter Kariuki Muibau & 11 others vs the Attorney General & another, [2018] eKLR (Muibau case) where the court held that the organization of courts to hear different types of cases was necessary to ensure specialization of court personnel at each level, and to ensure each court understood the specific needs of the parties coming before it.

The 3^rd respondent on its part opposed the petition arguing that it purported to question the validity of the Constitution on unlimited jurisdiction of the High Court in criminal matters, and more particularly murder cases, contrary to the provision of article 2 (3) of the Constitution which prohibited the challenging of the validity and or legality of the Constitution.

Issues

1. What constituted the doctrine of res judicata and what were the conditions of applying the doctrine of res judicata?
2. What was the extent to which the High Court could exercise original criminal jurisdiction?
3. Whether the High Court had unlimited original jurisdiction to hear and determine murder charges.
4. Whether the offence of murder could be tried before the Magistrates’ Court.
5. What were the benefits of initiating murder trials at the Magistrates’ Courts as opposed to the High Court?
6. Whether the initiation of murder trial at the High Court, instead of the Magistrates’ Court was discriminatory and/or compromised on the accused person’s right to a fair trial.

Relevant provisions of the Law

Constitution of Kenya, 2010

Article 165(3);

 “Subject to Clause (5), the High Court shall have:-

 (a)  Unlimited original jurisdiction in criminal and civil matters;

 (b)  Jurisdiction to determine the question whether a right or fundamental freedom has been denied, violated, infringed or threatened;

 (c)   …

 (d) Jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of –

 (i) the question of whether any law is inconsistent with or in contravention of the Constitution;

 (ii) the question of whether anything said to be done under the authority of the Constitution or if any law is inconsistent with or in contravention of this Constitution;

 (iii) …

 (iv) …

 (e) Any other jurisdiction, original or appellate conferred on it by legislation;”

Criminal Procedure Code;

Section 4;

“Subject to this Code, an offence under the Penal Code may be tried by the High Court or a subordinate court by which offence is shown in the fifth column of the first schedule to this Code to be triable.”

Section 5;

“(1). An offence under any law other than the Penal Code shall where the court is not mentioned in that behalf in that law, be tried by that court.

 (2). Where no court is so mentioned, it may; subject to this Code, be tried by the High Court, or by a subordinate court by which the offence is shown in the fifth column of the First Schedule to this code to be triable.”

Held

1. To constitute res judicata, there had to be adjudication which conclusively determined the rights of the parties with regard to all or any of the matters in controversy. In order to sustain a plea of res judicata, it was necessary to show that everything that was directly and substantially in controversy in the subsequent suit as the foundation of the claim for relief was also directly and substantially in controversy or open to controversy in the early suit either actually or constructively:-

1. that the same subject matter in dispute came in question before a court of competent jurisdiction;
2. that the result in the former case was conclusive; and,
3. that the former suit was between the same parties or between parties under whom they or any of them claim, litigating under the same title.

2. Conditions of applying the doctrine of res judicata were:-

1. identity of the matter in issue;
2. identity of the parties;
3. sameness of title;
4. concurrence of jurisdiction; and
5. finality of the previous decision.

3. The petitioners’ case in the Muibau case was, among others, that they were denied one more right of appeal in violation of article 27(1) (4) of the Constitution which guaranteed equality and freedom from discrimination. The petitioners had already been tried by the High Court, convicted on charges of murder and had exhausted their rights of appeal. That was unlike the instant petition where the petitioner was yet to be tried and had raised the question of jurisdiction of the High Court in limine. The issues that were determined in the Muibau case, though in rem, were not similar to the issues that were before the instant court. The prayers sought were germane to the real issues in controversy in the instant petition, unlike the former suit where the issue of jurisdiction of the High Court was an intellectual exercise. The instant petition, therefore, was not res judicata.
4. For the respondents to raise res judicata to defeat the petition, they needed to establish that the instant petition fell on all fours to the Muibau’s case. Other than a general reference to some of the issues arising in the Maibau case, they did not set out the specificity of the issues that they alleged were res judicata in the instant petition. There was a difference between the prayers sought in the former suit and the instant one. Whereas, the petitioners in the former suit were seeking for a declaration that their trials which had been concluded were unconstitutional and sought to be retried before a court of competent jurisdiction, the instant petitioners sought to be tried in the Magistrates’ Court.
5. Another prayer in the instant petition that was novel was a declaration that the respondents do take action to advise the government to align the criminal laws relating to the trial process to be in conformity with the Bill of Rights and other rights and fundamental freedoms in chapter 4 of the Constitution. That was an issue that had not been judicially considered and a decision rendered.
6. Article 165(3) of the Constitution granted the High Court unlimited original jurisdiction in criminal matters. That was also reflected in other statutes, such as the Criminal Procedure Code (CPC) that conferred further jurisdiction to the High Court to hear and determine appeals and revisions.
7. Jurisdiction could be conferred by the Constitution or statute or both.  Regarding criminal cases, the CPC set out further jurisdiction of the High Court in the exercise of its original jurisdiction in criminal cases under Part II. Under the fifth column of the first schedule of the CPC, the court which would try a person charged with murder under section 203 of the Penal Code was not indicated.
8. The court was enjoined under article 259 of the Constitution to interpret the Constitution in a manner that promoted its purpose, value and principles, advanced the rule of law, human rights and contributed to good governance. In exercising its judicial authority, the court was obliged under article 259(2)(e) of the Constitution to protect and promote the purpose and principles of the Constitution.
9. Where the constitutional validity of a statute or statutory provision was challenged on the grounds that it violated the Constitution, it became imperative to ascertain the true nature and character of the statute or statutory provision concerned. In that regard, the court was to ascertain the subject matter of the statute, the area it was to operate, as well as determine the purpose and intent of the statute or statutory provision. To do so, it was legitimate for the court to take into account all factors such as the history of the legislation, the purpose thereof, the surrounding circumstances and the conditions, the mischief which it intended to suppress, the remedy for the disease which the legislature intended to cure and the true reason for the remedy.
10. The assignment of jurisdiction to the High Court to hear murder and treason charges under the Penal Code by section 4 and 5(2) of the CPC would appear to be arbitrary if the history and context was not taken into consideration. Prior to 2003, murder cases under section 203 of the Penal Code and treason under section 40 of the Penal Code were tried before the High Court in exercise of its original criminal jurisdiction due to the elaborate procedures that required committal bundles to be prepared and subsequently thereafter, trial to be conducted with the aid of assessors.
11. Committal process and mandatory trial with the aid of assessors, however, caused unreasonable delay in the hearing and conclusion of murder trials before the High Court, resulting in the enactment of the Criminal (Amendment) Act (Act No. 5 of 2003) and Statute Law (Miscellaneous Amendments) Act (Act No. 7 of 2007) which did away with the procedural requirement of committal proceedings and assessors in murder trials before the High Court respectively. Those charged with murder were thereafter tried before the High Court, in a manner similar to criminal trials before the Magistrate’s Court. With the removal of the procedural requirement of committal proceedings and the requirement of trials to be conducted with the aid of assessors, there was nothing special to justify or require a criminal case to be tried before the High Court in only two case types, whilst all other criminal charges were tried before the Magistrate’s Courts.
12. Other than the statutory requirements under the CPC, majority having been repealed, it was apparent that the trial of murder charges before the High Court was a historical accident. The necessity of trying murder charges before the High Court was imposed by colonial expediency which spilled over to post independence Kenya. Despite trials by jury being abolished in 1963, trial of those charged with murder continued to be at the High Court with the aid of assessors. The fact that those charged with murder were still being tried in the High Court was a historical accident without any legal justification or logic.
13. There were 125 Magistrates’ Courts stations which were decentralized and devolved throughout the counties. There were 447 magistrates compared to only 82 judges of the High Court. Initiating murder trials at the Magistrates’ Courts would significantly lower the costs of the trial, reduce the distance to court and expedite delivery of justice. That would result in better realization of access to justice which was a fundamental right guaranteed by articles 48, 50 and 159(2)(a) and (b) of the Constitution.
14. Article 2 of the Constitution decreed that the Constitution was supreme, that any provision in it was not subject to challenge before any court and that any law inconsistent with it was void to the extent of that inconsistency. Article 50 of the Constitution enshrined the right to a fair trial which included the right to an appeal. That right was sacrosanct and non-derogable. Article 50 (2) (q) of the Constitution provided that a convicted person had a right to appeal to, or, apply for review by, a higher court as prescribed by law.
15. Origination of murder trial at the High Court discriminated or deprived accused persons their rights to equal protection of the law as enshrined under article 27 of the Constitution. It also deprived persons convicted in the Magistrates’ Court the right to approach the High Court for a re-trial under article 50 (6) of the Constitution.
16. The mere origination of the murder trial at the High Court, however, was not unlawful. Under article 165 of the Constitution, the High Court had original and appellate jurisdiction in both civil and criminal matters, even though appeals could be limited by law. Initiating a murder trial in the High Court compromised an essential element of the right to a fair trial. Thus, under the hierarchy of courts provided by articles 162 and 169 of the Constitution, a murder convict was denied a vital step in the appellate chain.
17. Article 27 (6) of the Constitution obligated the state to give full effect to the realization of the rights for equal protection and equal benefit of the law. Since article 25 of the Constitution provided that the right to a fair trial could not be derogated from under any circumstances, the state was directed to take appropriate legislative and other measures including appropriate policy interventions to redress the disadvantage experienced by murder suspects.
18. Article 22 of the Constitution provided that every person had the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights had been denied, violated or infringed or was threatened. The Bill of Rights did not exclude other rights and fundamental freedoms not in the Bill of Rights but recognized by law unless they were inconsistent with chapter 4 of the Constitution or subject to other limitations contemplated by the Constitution. The petition, therefore, was properly before the court.
19. According to section 7 (1) of the sixth schedule to the Constitution, all law in force immediately before the effective date continued in force and were to be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with the Constitution. Article 19 of the Constitution was geared towards preservation of the dignity, promotion of social justice and the realization of the potential of all human beings. The rights and fundamental freedoms provided in the Bill of Rights belonged to each individual and were not donated by the state.
20. Article 27 of the Constitution provided for equality of all persons before the law and freedom from discrimination. That right was also enshrined under article 7 of the Universal Declaration of Human Rights as well as article 3 of the African Charter on Human and Peoples Rights to which Kenya had ratified. By dint of the articles 2 (5) and 2 (6) of the Constitution, the general rules of international law and any treaty or convention ratified by Kenya formed part of Kenyan law.
21. Article 165 of the Constitution expressly gave the High Court original jurisdiction to try any criminal or civil case. A provision of the Constitution, however, could not be subject to challenge before any court or any state organ. Nonetheless, the choice of cases to originate at the High Court was to be found, not in the Constitution, but in statutes or adopted procedural practice. It was, thus, open to the court to interrogate the rationale of trying murder cases at the High Court.
22. As between the petitioner and other suspects charged with murder, unfair discrimination did not arise. Even though there was some distinction or differentiation that had arisen between the trials at the High Court and Magistrates’ Court, as a result of the former having original jurisdiction under article 165 of the Constitution, such differentiation could not be equated with discrimination. There were categories of cases that would be ideally tried at the High Court, including some high crimes against the security of the state such as treason and related insurrections.
23. The right to equality did not bear the same meaning as uniformity. Equality before the law was not absolute and would be limited as long as the limitation was reasonable in an open and democratic society.
24. Not all murder trials in the High Court ended in a conviction and, though it would be presumed, not all trials took longer in the High Court than in the Magistrates’ Court. The petitioner had not provided any such data. The petitioner made broad statements that had not been fully backed by facts. He who alleged must prove.
25. The initiation of murder trials at the High Court was not supported by any specific legal framework or policy or logic. A close reading of sections 3, 4 and 5 and the first schedule of the CPC left no doubt that the High Court was to try murder charges by default. It was a misnomer to say that there was a specific legal framework or policy in place that deserved to be up held by the court.
26. The petitioner’s murder trial at the High Court was still pending. It was presumptuous to conclude that the petitioner would, after conclusion of trial, be convicted or acquitted, or, even whether an appeal would lie upon such decision. It was also not entirely true that the only sentence provided for under section 204 of the Penal Code was death and that the High Court had no discretion on sentencing. The mandatory nature of the death sentence under section 204 of the Penal Code had been declared unconstitutional.
27. Nevertheless, the court took judicial notice that murder trials took an unduly long time to be concluded at the High Court. Some of the reasons had to do with other players in the justice chain and the limited number of judges’ vis a vis the volume of criminal and civil cases filed annually.
28. Article 48 of the Constitution obligated the state to ensure access to justice for all persons. From the standpoint of access to and expeditious delivery of justice, murder suspects would significantly benefit if their trials were held in the Magistrates’ Court. There was no longer sufficient justification for holding those trials at the High Court.
29. The Kenya National Commission on Human Rights (4^th respondent) was a creature of article 59 (1) of the Constitution. The legislature, however, created three distinct commissions under the Kenya National Commission on Human Rights Act, the Commission on Administrative Justice Act and the National Gender and Equality Commission Act. The instant petition was primarily based on discrimination and equality and sought to align some legislation to conform with articles 27 and 50 of the Constitution. Those matters fell largely within the purview of the National Gender and Equality Commission and not the 4^th respondent. The 4^th respondent was, thus, not a necessary party to the proceedings and the petition against it was struck out under rule 5(d)(i) and (ii) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013.
30. Considering the reliefs sought, it appeared that the only true respondents were the Attorney General, the Director of Public Prosecutions and the Kenya Law Reform Commission. Thus, the inclusion of the Cabinet Secretary Ministry of Interior and Coordination of National Government to the proceedings was superfluous as he was ably represented by the Attorney General who had the legal mandate under article 156 of the Constitution to represent government in proceedings before the court.

Petition partly allowed with each party bearing own costs.

0rders

1. The 1^st, 2^nd, 3^rd and 5^th respondents jointly and severally ordered to take such steps as were necessary, within 18 months of the judgment, to align sections 3, 4 and 5 of the Criminal Procedure Code and the subsidiary legislation, regulations and rules thereof to the Constitution, and in particular to articles 27, 48 and 50 thereof.
2. The entire petition against the 4^th respondent struck out with no order as to costs.
3. All the other prayers in the petition were disallowed.