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|Case Number:||Criminal Miscellaneous 1 of 2015|
|Parties:||Republic v Faith Wangoi|
|Date Delivered:||16 Nov 2015|
|Court:||High Court at Kajiado|
|Judge(s):||Reuben Nyambati Nyakundi|
|Citation:||Republic v Faith Wangoi  eKLR|
|Advocates:||Mr. Akula for State|
|Advocates:||Mr. Akula for State|
|History Advocates:||One party or some parties represented|
|Case Outcome:||Application Dismissed|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAJIADO
CRIMINAL MISC. NO. 1 OF 2015
IN THE MATTER OF CRIMINAL PROCEDURE CODE CAP 75
IN THE MATTER OF THE CONSTITUTION OF KENYA
IN THE MATTER OF CRIMINAL CASE NO. 1067 OF 2014 AT RESIDENT MAGISTRATE’S COURT AT LOITOKITOK – REPUBLIC VS. FAITH WANGOI
“I see nothing wrong if the complainant herein briefs the prosecution counsel on the progress made by parties herein before the application can be entertained by this court……….”
The court is a neutral entity and well embraces ADR where parties are in agreement. The application is thus rejected for now. It can be revisited later.”
This is the gist of the revision orders before this court.
“As a person who lodges a complaint with the police or any other lawful authority.”
However in an interesting turn of events parliament revisited the issue vide Statute Law Miscellaneous Amendment Act of 2007 and deleted definition of word complainant under Section 2 of Criminal Procedure Code pursuant to Criminal Law Amendment Act No.5 of 2003.
It reads as follows:”
“(1) If the accused person does not admit the truth of the charge, the court shall proceed to hear the complainant and his witnesses and other evidence (if any).”
The second limits of the word complainant and application of the meaning has been clearly restated by Judges of the High Court in Kenya.
In the case of REPUBLIC VS. MWAURA 1979 KLR 209 the High Court held that a complainant included the public prosecutor.
Further in RUHI VS. REPUBLIC 1985 KLR 373 the High Court held as follows;
“We must state at the onset that we are satisfied that the term complainant in Section 208(1) of the Criminal Procedure Code includes; The prosecution as well as the person so described in the particulars of the charge.”
In the case of ROY RICHARD ELIMMA & ANOTHER VS. REPUBLIC CR. APPEAL NO. 67 OF 2002. The court of appeal in considering Section 202 of Criminal Procedure Code dealt with the issue of complainant and stated:
“The parties named in Section 202 for example, are all complainants and the accused person if the complainant is aware of the hearing date and is absent without explanation, the court may acquit the accused person, unless the court sees some other good reason for adjourning the hearing. The “complainant” in this contest has been interpreted to mean the “Republic” in whose name all Criminal Prosecutions are brought and not the victim of the crime who is merely the chief witness on behalf of the Republic.”
Their functions and powers are clearly defined by the written law. The essential function of a court is to adjudicate, that of the Director of Public Prosecutions is to control all criminal proceedings. A judge or magistrate has full control of his court but he must carry out the procedure as laid down by law.
(6) The Director of Public Prosecutions shall exercise state powers of prosecution and may
(a) Institute and undertake criminal proceedings against any person before any court other than a court martial in respect of any offence alleged to have been committed.”
(b) To take over and continue any such criminal proceedings that have been instituted or undertaken by any other person or authority or to discontinue at any stage before judgement is delivered any such criminal proceeding instituted it undertaken by himself or any other person or authority.
30. The law therefore empowers the Director of Prosecutions to discontinue any proceedings at any stage before judgement is given. The specific power is to initiate, control and undertake criminal proceedings against
any person is under the Director of Public Prosecutions.
31. The issue here is simply that the prosecution counsel at the trial court was right in seeking time to consider carefully nature of the letter by their ‘chief witness’ to withdraw the complaint.
32. From the record and letter of withdrawal accused had other pending criminal cases which Director of Public Prosecutions needed to familiarize and understand their nature and status.
Under Article 157 (II) the Constitution enjoins the Director of Public Prosecutions to exercise powers under Article 157 with due regard to public interest, the interest of administration of justice and the need to prevent and avoid abuse of the legal process.
33. Thirdly the issue for determination is whether the learned trial
magistrate erred in law rejecting the withdrawal application
under Section 204 of C.P.C. Section 204 of the Criminal
Procedure Code provides:
“If a complaint, at any time before the final order is passed in a case under this part, satisfies the court that there are sufficient grounds for permitting him to withdraw his complaint, the court may permit him to withdraw it and shall thereupon acquit the accused.”
35. The section stipulates that it is the complainant who can make an application to withdraw the complaint from court.
36. Secondly the court in exercising discretion to grant the request has to be satisfied that there are sufficient grounds for permitting the withdrawal. The definition as to who is complainant in criminal proceedings has been dealt with earlier in this ruling.
37.I have considered and evaluated the record and an order by learned trial magistrate subject matter for review.
38.I am of the conceded view and in applying the law that the form the instructions should have taken in withdrawing a complaint is through the prosecutor. In practice the courts have always acted on the word of the prosecuting counsel or public prosecutor who controls and guides criminal proceedings.
39. Before making an order Section 204 would apply where the learned trial magistrate is satisfied that there are sufficient grounds for permitting a withdrawal.
40. In the case before me the letter dated 5/10/2014 stated the reasons for withdrawal as mutual agreement and a sign of good faith. It is not possible to deduce whether that was sufficient to enable exercise of discretion under Section 204 of CPC by the learned trial magistrate. It was necessary to place before court nature of the agreement between the complainant and accused to facilitate a withdrawal. The reasons are not set out in the letter.In particular the charges facing accused person were in respect of operating unregistered Private School Contrary to Section 50(2) (h) as read with Section 4(1) of Basic Education Act 2013. This case therefore has a public interest under Article 157(II) of the Constitution which the DPP shall have regard to avoid abuse of legal process.
41. Further in this review application counsel for the applicant in his submissions mentioned Article 159 2(c) of the Constitution of Kenya. The Article obligates the court to promote alternative dispute resolutions including reconciliation as a principle of justice.
42.As far as the learned trial magistrate was concerned she was alive of the provisions of Article 159 2(c) in administration of justice. She was therefore right in holding that the matter could have been resolved by way of reconciliation but with a rider that consent of parties was necessary. The necessary party being office of the Direct of Public Prosecutions.
43. In the instant case the record does not indicate that prosecution had been involved in the mode of alternative dispute resolution adopted by the accused and victim of the offence. In view of the foregoing I agree with the trial court entirely for not granting the prayer of withdrawal at that stage of the proceedings.
44. The proper course in the circumstances of the case was to file the letter of withdrawal with the prosecution. This could have given an opportunity to the prosecutor to participate in discontinuation of proceedings before court under Section 204 of C.P.C.
45. The applicant has not impugned the legality, correctness and propriety of an order by trial court. I hereby dismiss the same and remit the file back to Senior Principal Magistrate to proceed to dispose off the matter accordingly.
Dated and delivered at Kajiado this 16th November, 2015.
In presence of Mr. Akula for State
Mateli Court Assistant