Samwel D N Okello v Republic
High Court, at Nairobi July 27, 2001
Criminal Application No 426 of 2001
Constitutional Law – High Court - supervisory powers of the High Court – absence of rules of practice and procedure regarding the exercise of this power – whether this deficiency denied court jurisdiction – Constitution sections 65(2), (3).
Criminal Practice and Procedure – mentions – mentions of criminal cases – whether mentions amount to “proceedings”.
The applicant filed a Notice of Motion seeking the High Court’s exercise of its supervisory powers under section 65(2) of the Constitution, and its revisionary powers under sections 362 and 364 (1) (b) of the Criminal Procedure Code (cap 75). The applicant and the interested parties had been charged before the Chief Magistrate, Nairobi in Criminal Case No 399 of 2000. The charges were preferred against them by the Kenya Anticorruption Authority (KACA). A constitutional court in High Court Miscellaneous Application No 302 of 2000 declared the investigative and prosecutorial powers of KACA unconstitutional and therefore null and void. The Attorney General then intimated his desire to take over the prosecution of the applicant, in exercise of his powers under section 26(3) of the Constitution. The applicant filed HC Misc Civil Application No 244 of 2001 seeking leave to apply for an order of certiorari to quash the criminal charges in Chief Magistrate’s Case No 399 of 2000. The applicant also sought an order that such leave do operate as a stay of further proceedings until the hearing of the judicial review application. The orders for leave and stay were granted. When these orders were brought to the attention of the trial magistrate, the magistrate adjourned but ordered that the said criminal case shall continue to be mentioned on dates agreed upon until the determination of the judicial review application. The applicant was aggrieved by the decision of the trial magistrate terming it as improper, irregular, illegal and invalid for lack of jurisdiction or power to alter, vary or modify a High Court order.
1. The Constitution of Kenya has, vide section 65(2) thereof, bestowed upon the High Court Jurisdiction to supervise any civil or criminal proceedings before a subordinate court or a court martial, and to make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of ensuring that justice is duly administered by those courts.
2. The fact that no rules of practice and procedure may have been made under section 65 (3) of the Constitution does not remove the High Court’s supervising jurisdiction under section 65 (2) of the Constitution. Besides, rules of practice and procedure are only administrative in nature dealing with regulatory and machinery processes. The values and principles embodied in the Constitution remain.
3. After the record of the subordinate court has been called for pursuant to the provisions of section 362 of the Criminal Procedure Code, the High Court has jurisdiction and power to alter or reverse any order or finding of the subordinate court which may come into question.
4. The holding of mentions is a form and manner of conducting judicial business. It is not an administrative exercise. This is why mentions are conducted by judicial officers and that whatever transpires during mentions forms part of court proceedings. The trial magistrate had no authority to fix the mentions in the criminal case.
Application allowed in part.
1. Njogu v Attorney General High Court Criminal Application No 39 of 2000
2. Njuki, David Manyara v Chief Magistrate’s Court Nakuru High Court Miscellaneous Application No 195 of 1999
Black, HC (Ed) (1979) Black’s Law Dictionary St Paul Minnesota: West
Publishing Co 5th Edn p 1083
1. Constitution of Kenya sections 26(3)(b); 65(2),(3)
2. Criminal Procedure Code (cap 75) sections 205(1); 362; 364(1)(b)
3. Penal Code (cap 63) sections 101(1), 317, 349
Mr Tobiko for the Applicant
Mr Njeru for the Interested Parties
Mr Bwonwongwa for the State/Respondent