Republic V Jonah Orao Anguka eKLR
|Criminal Case 41 of 1992||28 Oct 1992|
Fidulhussein Esmailji Abdullah
High Court at Nairobi (Milimani Law Courts)
Republic v Jonah Orao Anguka
Republic v Jonah Orao Anguka eKLR
Republic v Jonah Orao Anguka
High Court, at Nairobi October 28, 1992
Criminal Case No 41 of 1992
Advocate – qualification of advocate - disqualification of an advocate to represent a client – whether the Court has power to bar an advocate from representing a client.
Jurisdiction – discretionary/inherent jurisdiction of the court – consideration by the Court – source of inherent or discretionary jurisdiction of the court.
Jurisdiction – High Court - unlimited original jurisdiction of the High Court – exercise of such jurisdiction by the Court – whether such jurisdiction is limited.
Criminal Practice and Procedure – prosecution – whether a police officer who has investigated a case is forbidden from prosecuting the case.
Criminal Practice and Procedure – prosecution – procedure where a prosecution counsel should be summoned as a witness by the defence – consideration by Court.
Counsel for the accused applied to Court to disqualify or bar the learned Deputy Public Prosecutor from prosecuting the above case on the grounds that, the prosecutor had adopted a certain stand at early stage as to the cause of death; he had assumed investigative role at the Ouko Commission of Inquiry and the defence intended to call him as a witness. The defence argued that the continued presence of the prosecutor was legally and actually not permissible; ethically forbidden, oppressive and likely to cause prejudice to the accused; against the Principles of Natural Justice and will not afford a fair hearing thereby contravening section 77(1) of the Constitution.
The respondents argued that section 60(1) of the Constitution did not grant such inherent jurisdiction to exercise the power and grant the orders sought. It was further submitted that: the role of the Commission was not investigatory; the prosecutor did not interview witnesses; his role was not pivotal in the Commission; he was not a cardinal investigator and did not combine the functions of counsel assisting the Commission with those of the Deputy Public Prosecutor.
1. The right of an officer of the court duly qualified and competent, to appear and present the case of his client to the Court, is prima facie unfettered and unchallenged. There is nothing in the written laws of this Country which empowers the High Court to disqualify a duly qualified advocate to appear and conduct a case unless it be a matter arising or incidental to having committed contempt of court. Even where it is partially clear that the interest of the advocate is in conflict with his client, it is doubtful that the Court may order disqualification, though such conflict may be pointed out and commented and then left to good sense of such advocate to withdraw from representing the client.
2. In so far as Kenyan Courts are concerned with regard to discretionary and inherent powers, they are creatures of the of the Constitution and it cannot be said that the inherent powers of the Courts are derived from vacuum or breast of judges. These powers must appear to emanate from statute. In this case the Constitution.
3. S 60(1) of the Constitution not only establishes the High Court with unlimited original jurisdiction. Such unlimited jurisdiction is not limited or restricted by the closing words “and such other jurisdictions …” It is ejusdem generis and does not for inherent powers to be exercised have to look elsewhere. True, such unlimited powers cannot be exercised arbitrarily but must be exercised with judicial restraint in a case where there is no known power or remedy to prevent occurrence of injustice or abuse of process. Such powers ought to be used sparingly and in a situation where ends of justice may be defeated by failing to exercise the same.
4. In Uganda there is no express provision of law which forbids a police officer from prosecuting a case which he has investigated and a trial is not ipso facto invalidated if the investigating officer gives evidence. Similarly, there is no such express provision of law in Kenya.
5. If a prosecuting counsel has important piece of evidence to give on behalf of the prosecution, he is expected to know what such evidence is and to judge for himself that there is a good reason to return the brief. In a case where the defence intends to call the prosecuting counsel as a witness to give important piece of evidence then it becomes the duty of the defence to indicate to such counsel at the earliest possible opportunity the nature and importance of such evidence in order for such counsel to decide whether it is prudent and there are good reasons to return the brief. Merely to summon a prosecuting counsel as a defence witness at the eleventh hour without indicating to him the nature of evidence which he has and which he is expected to give is not sufficient to disbar such counsel from the case.
6. Counsel entrusted with the public task of prosecuting accused persons should realise that one of the primary duties is to be absolutely fair.
1. Connelly v DPP  2 All ER 401;  AC 1254; 48 Cr App Rep 183
2. Githunguri v Republic  KLR 91
3. Bukenya & others v Uganda  EA 549
4. Gamaliere Mubito v R  EA 244
5. Reginald Arthur Wadley (1934 - 36) 25 Cr App R 104
6. Alec Bennet Sugarman (1934 - 36) 25 Cr App R 109
1. Boulton, WW (1961) A Guide to Conduct and Etiquette at the Bar London: Butterworths and Co Ltd 3rd Edn p31
2. Mitra, B B et al (Eds) (1963) The Code of Criminal Procedure Calculta: Kamal Law House 14th Edn p33
3. Napley, D (1991) The Technique of Persuasion London: Sweet and Maxwell, 4th Edn p79
4. Hilbery, J (1946) Duty and Art in Advocacy London: Steven and Sons Ltd p8
1. Constitution of Kenya sections 26(2); 60(1); 77(1)
2. Commissions of Inquiry Act (cap 102) sections 3, 4(1);
3. Criminal Procedure Code [India] sections 4, 495(4)
4. Criminal Procedure Code (cap 75) section 252
5. Police Act (cap 84)
6. Interpretation and General Provisions Act (cap 2)
Mr Chunga for the State
Mr Bowry for the Accused