REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KIAMBU

MISC. CRIMINAL APPLICATION NO. 126 OF 2019

IN THE MATTER OF KIAMBU CRIMINAL CASES NO. 1511 & 1535 OF 2019

REPUBLIC VERSUS ERIC AGBEKO

AND

IN THE MATTER OF ARTICLES 19, 20, 21, 22, 23, 159 & 165 OF THE CONSTITUTION

AND

IN THE MATTER OF ALLEGED CONTRAVENTION OF RIGHTS AND FUNDAMENTAL FREEDOMS UNDER ARTICLES 27, 28, 29, 47 & 50 OF THE CONSTITUTION

AND

IN THE MATTER OF VIOLATION OF SECTIONS 66, 67, 68, 71, 72, 73, 74 & 76 OF THE CRIMINAL PROCEDURE CODE

ERIC AGBEKO...................................................................APPLICANT

VERSUS

DIRECTOR OF PUBLIC PROSECUTION..................RESPONDENT

RULING

1.  Before the Court are two applications by Eric Agbeko (hereinafter the Applicant) who is facing criminal charges in two separate cases now pending in the Chief Magistrate’s Court at Kiambu. The first application was filed on 25^th October, 2019 and is expressed to be brought under various provisions of the Constitution and the Criminal Procedure Code. The key prayer seeks an order for the immediate transfer of Kiambu Chief Magistrate’s Criminal Case Nos. 1511 & 1535 of 2019 Republic versus Eric Agbeko to the Milimani Chief Magistrate’s Court, Nairobi for trial and disposal. There is a further prayer seeking the supply to the defence, of data relating to subscribers of certain telephone numbers listed in the prayer. That is not an order that can be granted by this court and in these proceedings. Significantly a number of the listed subscribers are not party to these proceedings.

2. The second application also said to be brought under several provisions of the Constitution and the Criminal Procedure Code was filed on 27^th November 2019 and was primarily seeking review of the bail conditions imposed in the lower Court, specifically the condition requiring the Applicant to deposit his passport into Court. Again, because of the final orders that this Court proposes to make in this matter, and the fact that no application to vary the said bail condition has been made in the first instance before the trial court, this Court declines to entertain second application at this stage.

3. This ruling is therefore confined to the prayer contained in the first application seeking the transfer of the two criminal cases before the lower Court. The application is premised on grounds inter alia that as per the charge sheets laid before the trial courts in the two criminal cases, none of the offences  preferred against the Applicant , including   forgery, uttering a false document , procuring execution of a false document and obtaining goods by  false pretences were committed in Kiambu and that,  the only reason for the cases being  registered   in the subordinate Court at Kiambu is that one  complainant, namely,  Mercy Atambo is a sister to Stella Atambo, the  Senior Principal Magistrate at Kiambu. The Applicant is therefore apprehensive that a fair trial cannot be had in the Chief Magistrate’s (CM’s) Court at Kiambu.

4. The Applicant swore an affidavit in support of the application deposing that that he is a Ghanaian national and an investor living and carrying on business in Kenya and that he and his family are friends of the Atambo family some of whom who are also his business associates. He detailed a dispute between Mercy Atambo and himself over monies demanded by the former in relation to some business transactions between them which dispute allegedly culminated in his arrest and arraignment before the CM’s Court at Kiambu. He deposed that on his initial appearances in respect of the criminal cases, he was presented for plea before Stellah Atambo SPM who disqualified herself. He asserted that dispute between him and Mercy Atambo is civil in nature and that due to the stated matters he should not be tried in CM’s Court at Kiambu as he is apprehensive that justice cannot be done.

5. The Director of Public Prosecutions (DPP) through Sergeant Samson Owaga the officer investigating in the lower court cases, filed an affidavit in opposition to the application. Sergeant Owaga swore that the Marceline (Mercy) Nyathunga Atambo who is one of the complainants in the criminal cases had made a complaint to the Directorate of Criminal Investigations (DCI) Gigiri to the effect that the Applicant had obtained from her company computers and assorted computer accessories valued at Kshs. 2,115,160/= but had failed to make the requisite payment; that another complaint was later received against the Applicant from  one Judy Waigumo in connection with alleged forgery ; and that following investigations, the Applicant was arrested and arraigned before the Hon. Stella Atambo SPM  who duly recused herself and the Applicant was  then presented for plea before the Chief Magistrate, Kiambu. He denied the Applicant’s allegations that there is a conspiracy to persecute the Applicant and stated that in any case, the application does not demonstrate how the Applicant’s rights have been infringed by the Respondent. Finally, he defended the registration of the charges at the Kiambu Subordinate Court, stating that DCI Gigiri and Gigiri Police Station fall within the jurisdiction of Kiambu County.

6. On behalf of the Interested Parties who are the complainants in the criminal cases before the lower court, Dr Benjamin Imalingat swore a replying affidavit in opposition to the application. To the effect that the application does not disclose a valid complaint of interference in the criminal cases, and that the named complainant has equal rights to justice which cannot be trumped on account of her family ties with a judicial officer. He stated that DCI and Judiciary are independent bodies. In his view, the Applicant’s allegations of intimidation are unfounded.

7. The application was canvassed by way of oral arguments. Ms. Ndungu for the Applicant argued that the alleged offences facing the Applicant occurred in Nairobi and ought to be tried in Nairobi by virtue of the provisions of section 71 of the Criminal Procedure Code. She claimed that the defence is apprehensive about the trial of the Applicant being held before the Kiambu Court. Emphasising the defence apprehension concerning impartiality in such a trial, counsel relied on the holding in the case of Maina wa Kinyatti v Republic (1984) eKLR that a reasonable apprehension is sufficient justification for the transfer of a case in order to ensure a fair trial. She stated that the complainants and witnesses in the criminal cases are based in Nairobi and would not be prejudiced if the orders sought are granted.

8. Mr. Kasyoka submitted on behalf of the Director of Public Prosecutions that the Chief Magistrate’s Court at Kiambu is seized with necessary jurisdiction to try the Applicant as he was held at DCI Gigiri before the arraignment in court. He pointed out that the Applicant’s complaints relate to a Judicial officer who had already recused herself from his cases. Citing the case of John Brown Shilenje vs Republic Criminal Appeal No. 180 of 1980 counsel asserted that a reasonable apprehension must be demonstrated by an applicant in an application of this nature and mere allegations do not suffice. Counsel argued that a fair trial can be conducted in the CM’s Court at Kiambu and that the Applicant is merely unhappy with bail terms which he has termed as excessive.

9. Mr. Kaburu for the Interested Parties argued that a transfer is only justifiable where it is shown that a fair or impartial trial cannot be held. He reiterated the principle stated in the case of Francis Otieno Joseph vs Republic (2015) eKLR that apprehension must be reasonable. He contended that the DCI Gigiri falls within the territorial jurisdiction of Kiambu Law Courts hence the Applicant’s arraignment before the said court was proper. He further argued that pursuant to the provisions of section 74 of the Criminal Procedure Code, where the place of commission of an offence is uncertain as is the case in some of the charges facing the Applicant, any of the local courts may try the offence. In his view the basis of the Applicant’s apprehension was far-fetched and misplaced given the facts upon which it was predicated. Counsel cited the case of Director of Public Prosecutions vs Abubakar Mohamed Swaleh (2019) eKLR in bolstering his submissions and urged the court to dismiss the Applicant’s application.

10. In a rebuttal, Ms. Ndungu maintained that the local jurisdiction where the offences allegedly occurred, and the place of the Applicant’s eventual arrest is Nairobi County. She argued that the test of a reasonable character of apprehension relates to the mind of a reasonable person. She contended that the Applicant only needs to show apprehension based on the principal fact that a sister to one of the complainants is a Judicial officer in Kiambu Court.

11. The court has considered the material canvassed in respect of the motion, which is premised, inter alia on Sections 66, 67, 71, 72, 73, 74 and 76 of the Criminal Procedure Code.  The Applicant has particularly hinged his application upon the provisions of Section 71 of the Criminal Procedure Code which provides that:

“Subject to the provisions of Section 69 and the powers of transfer conferred by 79 and 81 every offence shall ordinarily be tried by a court within the local limit of whose jurisdiction it was committed, or within the local limits of whose jurisdiction the accused was apprehended, or is in custody on a charge for the offence, or has appeared in answer to a summon lawfully being issued charging the offence. “

12. In this instance, it is undisputed that whereas the offences charged in Criminal Case No.1511 of 2019 were allegedly committed within Nairobi  County, and where the arrest was effected, some of the offences preferred  in Criminal Case No. 1535 of 2019 were committed at unknown places and others in Nairobi County.  Ideally therefore, the Applicant ought to have been arraigned before the CM’s Criminal Court in Nairobi.  However, because the complaints giving rise to the charges had been made at the DCI Gigiri and officers attached thereto conducted investigations and eventually arrested the Applicant, there cannot be, without more, any serious objection to the Applicant being subsequently arraigned before the Chief Magistrate’s Court at Kiambu.

13. As I understood it, the Applicant’s grievance concerning his said arraignment before the CM’s Court in Kiambu is tied up to several other undisputed facts including the fact that a sister to complainant in Criminal Case No. 1511/2019 is a judicial officer  at the CM’s Court Kiambu; that the said officer  and the Applicant are well known to each other; that the two had exchanged communication by way of text messages prior to the Applicant’s arrest concerning the subject matter of the complaint; that upon his first arraignment the Applicant was indeed produced before the said judicial officer  for plea on 26^th September 2019 but the officer  however immediately recused herself from the matter.  The plea was thereafter taken before the Chief Magistrate, who also subsequently recused herself from the matters.

14. That notwithstanding, and while nothing turns on the Applicant’s complaints regarding orders on bail made by the Chief Magistrate (the Applicant himself acknowledges in his grounds that the Chief Magistrate “was fair and did justice,” ) the Applicant nevertheless has asserted that he is apprehensive there will be a miscarriage of justice if his trials are held in the CM’s Court at Kiambu.  The Applicant alludes to bias as in his view, “The only plausible reason why this matter was brought to Kiambu court is because of the presence of the said Magistrate Stella Atambo …. in the said court”.  He bases these claims on his previous communication with the said judicial officer by which the officer evinced threats and caused his apprehension.

15. This court’s power to transfer a criminal case from one court to another is found in Section 81 of the Criminal Procedure Code (hereinafter CPC) which provides:

“(1) Whenever it is made to appear to the High Court—

(a) that a fair and impartial trial cannot be had in any criminal court subordinate thereto;or

(b) ….; or

(c) …; or

(d)  …; or

(e) that such an order is expedient for the ends of justice or is required by any provision of this Code,

it may order—

(i) …;

(ii) that a particular criminal case or class of cases be transferred from a criminal court subordinate to its authority to any other criminal court of equal or superior jurisdiction;

(iii)  ...

(2) The High Court may act on the report of the lower court, or on     the application of a party interested, or on its own initiative.

(3) Every application for the exercise of the power conferred by this section shall be made by motion, which shall, except when the applicant is the Director of Public Prosecutions, be supported by affidavit.

(4) An accused person making any such application shall give to the Director of Public Prosecutions notice in writing of the application, together with a copy of the grounds on which it is made, and no order shall be made on the merits of the application unless at least twenty-four hours have elapsed between the giving of notice and the hearing of the application.

(5) ….”

16. The instant matter appears to fall under sub-section 1 (a) and (e) of section 81 of the CPC above.  In the case of R v Mwalulu [2005] e KLR, the Court of Appeal while restating the applicable principles in the exercise of the court’s power of transfer under Section 81 Criminal Procedure Code, stated that it is necessary in dealing with an application of this nature, to consider whether there is a reasonable ground for assuming the possibility of bias and whether the ground is likely to produce in the mind of the public a reasonable doubt about the fairness and administration of justice, the test itself being objective, and that the facts constituting the alleged bias or apprehension must be specifically stated and established on a balance of probabilities.

17. The Court of Appeal further emphasized that the court ought not to go into the question whether the court against which an order is sought is or will actually be biased. The true test is whether there is reasonable apprehension in the Applicant’s mind that a fair and impartial trial cannot be had before the said court, based on the established facts. See Patrick Ndegwa Warungu v R Milimani High Court Cr. Application No.440 of 2003 [2003] e KLR. These are principles earlier stated by the Court of Appeal in Kinyatti V R [1984] e KLR where the Court having reviewed several leading authorities including the Tanzanian case of R v Hashimu [1961] EA 656, Brown Shilenje v R HC Cr. Application No. 107 of 1976 (U R) and quoting from In the matter of an Application by M.S Patel [1913/1914] 5 KLR stated that:

“It was held that the true test for making an order for transfer was not whether or not the magistrate was biased but whether a reasonable apprehension existed in the mind of the accused from incidents which had occurred that he may not have a fair and impartial trial. A transfer was ordered. Hamilton CJ quoting the Calcutta High Court decision in Dupeyron v Driver I LR XXIII Cal. 495 said at page 68:

“I am not here concerned with an issue as to whether the magistrate was in fact likely to be partial or impartial ... I am perfectly prepared to believe that the accused would have received a fair trial at his  hands. But the test to be applied in such cases as this has been settled ... and I would refer particularly to the judgment of the Calcutta High Court in Dupeyron v Driver ... where the judges say:

“Where the apprehension in the mind of the accused that he may not have a fair and impartial trial is of a reasonable character, there, notwithstanding that there may be no real bias in the matter, the facts of the incidents having taken place calculated to raise such reasonable apprehension ought to be a ground for allowing a transfer”. The patel case has withstood the test of time and in our view is still the law as the question of transfer of a criminal case by the accused ... if the accused shows his apprehension is reasonable then he has set out a clear case.” (emphasis added)

See also Philip K. Tunoi and Another V Republic [2016] e KLR

18. In a recent decision in Lubna Ali Sheikh Abdalla Bajaber and Another v Chief Magistrate’s Court, Mombasa and

2 Others [2018] e KLR, the Court of Appeal delivered itself as follows:

“What is bias? An apt definition of ‘bias’ can be deciphered from the following passage from the judgment of the Court of Appeal in England in Medicament and related Classes of Goods (2001) 1WLR 700 where the court expressed:

“Bias is an attitude of mind which prevents the Judge from making an objective determination of the issues that he has to resolve. A Judge may be biased because he has reason to prefer one outcome of the case to another. He may be biased because he has reason to favour one party rather than another. He may be biased not in favour of one outcome of the dispute but because of the prejudice in favour of or against a particular witness, which prevents an impartial assessment of the evidence of that witness. Bias can come in many forms. It may consist of irrational prejudice or it may arise from particular circumstances which, for logical reasons, predispose a judge towards a particular view of the evidence or issues before him.”

Nearer home in Attorney-General v. Anyang’ Nyong’o & Others [2007]1E.A. 12, the court set the test for bias as follows:

“The objective  test  of  ‘reasonable apprehension  of bias’ is good law. The test is stated variously, but amounts to this: do the circumstances give rise to a reasonable apprehension, in the view of a reasonable, fair-minded and informed member of the public that a Judge did not (will not) apply his mind to the case impartially["] Needless tosay, a litigant who seeks [the] disqualification of a Judge comes to Court because of his own perception that there is appearance of bias on the part of the Judge. The Court, however, has to envisage what would be the perception of a member of the public who is not only reasonable but also fair-minded and informed about all the circumstances of the case...” (emphasis added)

See also the Supreme Court decision in Jasbir Singh Rai and 3 Others v Tarlochan Singh Rai and Others [2014] e KLR.

19. By his affidavit and submissions, the Applicant emphasizes incidents or facts leading to his apprehension that he may not have a fair trial before any court within the Chief Magistrate’s Court at Kiambu.  Key among these matters are:

a) the undisputed fact that the complainant in Criminal Case No.1511/19 is a sister to the judicial officer before whom the Applicant was first arraigned on two occasions.

b) the undisputed family friendship or relationship between the said judicial officer and her family on one hand and the Applicant and his family on the other.

c) the undisputed communication exchanged between the Applicant and the said judicial officer concerning the complaint by the latter’s sister prior to his arrest.

d) the undisputed fact that the majority of the offences charged in Cr. Case 1511/19 and 1535/19 were committed in Nairobi County but that the Applicant was charged before the CM’s Court at Kiambu rather than before the CM’s Court in Nairobi.

e) the undisputed fact that at the CM’s Court Kiambu, the Applicant was in both criminal cases above arraigned, in the first instance , before Atambo SPM who is a sister to the complainant in Criminal Case No. 1511/19.

20. First, it does appear from the affidavit of the Applicant, the annexures thereto and the affidavit of Sergeant Samson Owaga the investigating officer in both cases, that both Criminal case Nos.  1511/19 and 1535/19 were first placed before Atambo SPM for plea on 26th September 2019 and 1st October 2019, respectively.  And that in the first instance, the said presiding officer recused herself, citing conflict of interest for obvious reasons – her relationship with the complainant in the case.  In the second instance, relating to the second case, namely Criminal Case No.1535/19 the same judicial officer was presiding, and she similarly recused herself.

21. The record of the day indicates that the presiding officer stated in recusing herself that:

“Court

I am unable to take plea in this matter as the accused is well known to me as a family friend.  I therefore recuse myself from the same on my own motion.  File placed before Court 1 today for directions.”

22. The record shows that before the latter court, the question of consolidating Criminal Case No 1511/19 and Criminal Case No.1535/19 was raised by the defence.  Seemingly, the Applicant was in custody in the former while awaiting bail hearing and the prosecution intimated, they were treating the two cases separately.  Could these undisputed facts and sequence of events be taken as coincidence or is there a basis for the reasonable apprehension that a fair trial could not be had at the CM’s court Kiambu?

23. In order to put in proper perspective these court proceedings before Atambo SPM which are about four days apart, it is imperative to look at the text messages exchanged between the Applicant and the said judicial officer. The copies of text messages are found   at pages 77 to 80 of the Applicant’s annexure “EA 1”.  The relevant part commences with a text sent by the Applicant on 20^th September 2019 to the judicial officer, seemingly forwarding an accounting document, and which from the facts of the case, relates to the debt being claimed by the complainant in Criminal Case No. 1511/19 from the Applicant.  This is the complainant related to the judicial officer before whom the Applicant was first arraigned on both occasions.  The Applicant’s text reads:

“Good evening my dear sister, the accountant came, and we have finalized the account of sister Mercy (complainant) I am sharing (document) with you for your records.”

24. Seemingly the text elicited no response from the judicial officer and on 21^st September 2019, the Applicant took up the conversation again, writing:

“Meanwhile I am in Mombasa and just received this from the office, so once I came back on Monday, I will look for my sister Mercy so we can conclude in an amicable way.” (sic)

25. To which the judicial officer responded:

“Please sort out this with Mercy. I just need to know its solved & if not then the law takes its course. Why are you not picking her calls & you’re sending me all these?”

26. A few days later, the Applicant was arrested in the Westlands office of the complainant Mercy by officers of the DCI Gigiri , and presented before the said judicial officer  on 26th September 2019 and again 1st October 2019.This court is not persuaded, on a plain reading of the text messages, that the judicial officer  who was a friend of the Applicant intended to intimidate or threaten the Applicant. That the judicial officer was the magistrate responsible for taking pleas on both occasions when the Applicant was arraigned for plea could well be a coincidence. And in any event, the judicial officer promptly and properly recused herself. There is no evidence that the said judicial officer could or has attempted to interfere with subsequent proceedings in the two cases. As noted, the Chief Magistrate also subsequently recused herself from the criminal matters. However, given the entire sequence of events, the text message from Atambo SPM could at the very least appear ominous and possibly trigger some red flags in the mind of a reasonable member of the public.                

27. This court is of the view that, taking all the undisputed facts  in their logical sequence and context, the circumstances could easily give rise to a reasonable apprehension, in the mind of a reasonable, fair minded and informed member of the public that the Applicant may not have a fair and impartial trial in the CM’s Court at Kiambu.   This, I hasten to add, is all about perception and in no way suggests that any one of the persons who conducted investigations and arraigned the Applicant, independent as they are, orchestrated the sequence of events in question.  Indeed , there is  no basis upon which it may be imputed that the judicial officer concerned, may have actively and knowingly courted the embarrassing spectacle of presiding over the plea-taking proceedings  in two cases involving an accused person who is an admitted family friend and a complainant who is a blood relative. The judicial officer acted properly by immediately recusing herself.

28. As was stated in Tumaini V R [1972] EA 441, in gauging the possibility of bias, which is the opposite of impartiality, it is not the mind of the judge which is considered but the impression given to reasonable people.  Or as stated in Porter V Magill [2002] I ALL ER 465:

“[T]he question is whether the fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was (or would be) biased.”

29. In the case of Philip K Tunoi & Another V Judicial Service Commission and Another [2016] e KLR the Court of appeal stated that:

“Impartial” is defined by Black’s Law Dictionary, Ninth Edn, as “unbiased” … Apprehension is defined by the same Dictionary in this context as “perception”, “fear”, “anxiety” … By long tradition, the rule has been that justice must not only be done but be seen to be done.  In short, there must be impartiality.  At the core of this maxim is the need to inspire and maintain public confidence in the administration of justice and to obviate not only the appearance of unfairness but also the risk of unfairness.”

30. Both the Applicant and the Interested Parties are entitled to a fair and public hearing before an impartial court under Article 50 of the Constitution.  The Interested Parties who are likely witnesses and the Applicant all reside in Nairobi County where majority of the offences were allegedly committed.  There is no evidence that a trial in Nairobi would be inconvenient or prejudicial to the complainants.

31. In view of all the foregoing, the court is persuaded that the application is for granting, if for no other reason, to safeguard the integrity of the court and the system of administration of justice and to thereby maintain public confidence.  The first application will therefore be allowed in terms of prayer (2) only.  Consequently, the Applicant is directed to appear before the CM’s Criminal Court at Nairobi on 7^th July 2020 at 9.00 am so that further directions may be given as to the hearing of the two criminal cases facing him.

DELIVERED IN VIRTUAL COURT ON THIS 25^TH DAY OF JUNE 2020

C. MEOLI

JUDGE

In the presence of:

For DPP: Miss Oyagi

For Applicant: Mr. King’ara

For Interested Parties: Mr. Kaburu

C/A Kevin