2.That Section has been invoked by Craft Silicon Limited(hereinafter the complainant). The advent of what is before this Court is the criminal trial before Kiambu Chief Magistrate’s court where 6 persons, the respondents herein, were charged with various criminal offences. The applicant hereof is the complainant in that criminal case. The respondents pleaded not guilty to those charges. The complainant instructed a counsel to represent it at the trial. By an oral application made by the complainant’s counsel on 8th March, 2021 the complainant sought leave of the trial court to participate in the criminal trial. This is how that application by the complainant was captured by the trial magistrate in the impugned Ruling of 26th April, 2021:-
3.That oral application was not opposed by prosecution counsel for Director of Public Prosecutions (DPP), Miss Mbevi. The application was however opposed by the respondents who are the accused before the trial court.
4.The trial court considered the provisions of Section 9(2) and 3 of the Victim Protection Act (VPA) and determined that the complainant was not a victim as per the definition of victim in VPA. The trial court therefore revoked the earlier orders it had issued permitting the complainant to restricted participation in the trial.
5.That Ruling led the complainant to approach this Court for Revision by an application of Notice of Motion dated 3rd June, 2021. The two prayers in that application which are for consideration are:
6.That application is supported by an affidavit of Nancy Wacera the complainant’s legal manager. She deponed that the complainant was a victim of an economic cyber-crime which led to economic loss of million shillings and which is the subject of the charges the respondents are facing before the trial court. That the complainant having appointed counsel to represent it and because “the criminal legal landscape” of this jurisdiction in respect to victims had changed that the complainant has the right to be represented and participate at the trial. It was further deponed that the complainant sought to participate at the trial for the reason that it was a direct victim of the offences before the trial court; that the trial court has a statutory duty to consider complainant’s views through its appointed representatives; and that the complainant’s counsel played a complementary role to that of the prosecutor to highlight complainant’s view which would include, “posing questions to witnesses” within the control of the court to file submissions and raise issues on points of law. The deponent further stated that the complainant did not intend in such participation to usurp the role of the prosecution nor to delay prosecution of the criminal case.
7.By its written submissions before this Court, the complainant submitted that under the constitution, the right to be heard ensures all persons, complainant and accused alike are afforded fair trial and equal protection and benefit of the law. It is on that basis the complainant seeks orders to safeguard its constitutional right to be heard and assist the trial court.
9.The complainant faulted the trial court for its failure to acknowledge in the impugned Ruling the discriminatory definition of victim in VPA Section 2.
10.The trial court by its impugned Ruling found the definition of victim under Section 2 of VPA to be intransient. The trial stated thus in that Ruling:-
11.The complainant argued that the trial court failed, by its Ruling to “adopt a purposive and equitable interpretation of the law.” Complainant referred to Constitutional provisions which assured rights of equality before Law such as Article 10, Article 50 and Section 9(2) VPA and stated the trial court’s definition of victim was simplistic.
12.This Revision is opposed by two respondents.
13.The 2nd Respondent by the replying affidavit dated 5th October, 2021 complained of the delay in the prosecution of her case before the trial court which she attributed to this Revision. She further deponed that the complainant would be a second prosecutor next to the DPP contrary to Article 157 of the Constitution and that the complainant cannot benefit from the provisions of Section 9(2) of the VPA in view of the fact that it was not a natural person.
14.By her submissions, the 2nd Respondent stated that the complainant failed to show any illegality by the trial court’s Ruling justifying the invocation of Section 362 of the Criminal Procedure Code. That the impugned Ruling correctly applied the law. According to the 2nd Respondent, the complainant ought to have appealed and not sought Revision of the said ruling if it was aggrieved.
15.The 2nd respondent further submitted that the complainant “does not fall within the definition of a victim under the Victim Protection Act.” She supported that submission by referring to Section 2 of the VPA which defines victim as a natural person who suffers injury, loss or damage as a consequence of an offence. The respondent submitted that the complainant being a corporate entity it was not a natural person. The 2nd Respondent cited the following case of Kenneth Njiru Njagi Vs. Republic; Lineal Company Limited & Another (Applicant) (2021) eKLR where Justice C.W. Githua held as follows:
16.The 3rd Respondent in opposition to the Revision application swore an affidavit and deponed that the application is an abuse of the court process terming the prayer, in the application seeking review, variation, reversal and or alteration of the impugned Ruling as misplaced because it had not been argued before the trial court. That the wide participation in the trial sought by the complainant before the trial court, was different to what it now states before this Court as its requests to participate at the trial.
17.The 3rd Respondent also argued that there was no order issued by the trial court which this Court can consider, and review as provided under Section 362 CPC. That further, the complainant seeks to challenge the merit and not the correctness of the impugned Ruling since there is no error, and that therefore, the complainant is seeking an appeal. The 3rd Respondent supported this argument by citing the case Joram Opala Otieno T/a Mactebac Contractractors & 3 Others Vs. Director Of Public Prosecutions (2021) eKLR:-
18.This Respondent also submitted the complainant not being a natural person was disqualified to be considered a victim. The Respondent relied on the decision of Justice GW. Ngenye-Macharia in the case Kimuri Housing Co. Ltd & Margaret Wambui Ngugi vs. Director of Public Prosecutions (2017) eKLR thus:-That said though, it is trite that a Limited liability company is a legal person capable of suing and being sued. That explains why Kimuri Housing And Co. Ltdis named as the complainant in the charge sheet. For purposes of evidence at the trial, the 2nd Applicant in her capacity as its director testified. In view therefore, it is clear that the definition accorded to who a victim is under the Act is narrow and restrictive. It should be broadened so as to comprise a legal person. It seems that the Act failed to envisage situations where legal persons can sue and be sued in criminal proceedings, yet this is a common phenomenon.”
Analysis and Determination
19.There are two issues in my opinion that come out of the submissions made by the parties. These are:(a)Is the complainant a victim within the meaning in VPA?(b)If the answer to (a) above is in affirmative, should the impugned Ruling be reversed?
20.Section 2 of VPA defines victim as:
22.The complainant is a corporation. It therefore would follow that the complainant, per se is not a natural person. But what issue (a) calls this Court to determine is whether there was a natural person who was a victim of the crime, the subject of the trial before the Kiambu Chief Magistrate’s court.
23.I will respond to the first issue by referring to the case cited to this Court Joseph Lendrix Waswa vs. Republic (2020) eKLR. That case was an appeal before the Court of Appeal following the High Court granting permission to the father of the deceased to participate in the trial of the accused who was charged with the murder of that, his son. The Court of Appeal while considering that appeal from the High Court’s decision in the case Joseph Lendix Waswa vs. Republic (2019) eKLR concluded thus:
24.The accused in that appeal, not being satisfied with the determination of the Court of Appeal further appealed to the Supreme Court in Petition No. 23 of 2019 Joseph Lendrix Waswa vs. Republic (2020) eKLR. The Supreme Court was alive to the fact that the victim in the appeal before it was the father of the deceased and not the deceased son himself. What I wish to underscore by this discussion is that a victim, in as far as VPA is concerned is not always necessarily the one who directly suffers actual harm, for example in that case, the murdered son was not the only victim. Rather, victim includes the family members of that deceased. It can be shown that they suffered injury or damage as a consequence of their son being murdered. It is on that basis that the father of the deceased’s son requested the High Court’s permission to participate in the trial of the accused. As stated before, the High Court granted him that permission which order was upheld up to the Supreme Court.
25.Flowing from that discussion, it ought to be noted that it is a legal principle that a corporation is treated as distinct legal entity from its shareholders. When that corporation, however, suffers economic loss as a consequence for example of cybercrime as it happened in the case at hand, the real victim of such an offence is the shareholder. The harm is done to a shareholder personally as a result of loss in the company’s share value. It follows that corollary to the example I used above of a murder case of who the victim is; when a corporation suffers as a result of a crime where there is loss which affect the profitability of a corporation, it is the shareholder who is a victim. And although a shareholder can either be a person or a corporation, even where it is a corporation is a shareholder of that other corporation, there is always a natural person who is a shareholder somewhere down the line and it is that one who suffers the consequences of a crime committed against the corporation.
26.Further, it is important to note that Articles 50(9) of the Constitution mandated parliament to enact legislation to provide for the protection rights and welfare of victims of offences. That Article of the Constitution does not discriminate on who can be considered to be a victim.
27.Section 9(1) of VPA recognizes the involvement of a victim in a trial in particular, subsection (a) of that Section states that:-
29.The constitution under Article 27 frowns on discrimination. In particular, I will reproduce Article 27(1) as follows:-
30.With above provision in mind, it is not correct to treat shareholders who suffer from the consequence of an economic crime and who are not excluded under Article 50(9) of the Constitution differently from other persons, such as family members of a person who is murdered.
32.It is because of the above that I am satisfied that the trial court was not correct in finding that the complainant was not a victim as defined in VPA. Indeed, just as there was a natural person who was a victim in the case Jospeh Lendrix Waswa vs Republic (supra), there is/are natural person(s) in the case before the trial court, that is, the shareholders.
33.It is now fitting to consider the second issue above. This issue arose from what the trial court stated in its Ruling in paragraph 31 as follows:-
34.The above is not in accordance with the Supreme Court determination in the case of Jospeh Lendrix Waswa vs Republic (supra), where the Supreme Court affirmed the right of a victim to participate in a trial to assist the judge or magistrate “to obtain a clear picture of what happened (to them) and how they suffered, which the judge may decide to take into account.” The Supreme Court in the afore stated case said thus:
35.With the above decision in mind, the trial court should have evaluated the complainant’s application to participate in the trial. The impugned Ruling did not reveal such consideration and the determination that was made by the trial court, to shut out the complainant from participating in the trial does indeed attract the revision by this Court.
37.That definition of the word ‘order’ sufficiently respondents to the respondents’ argument that the trial court’s Ruling did not amount to an order capable of being revised as provide under Section 362 and 364 CPC.
38.Respondents also erred to argue that what the complainant has brought to this Court was an appeal. By virtue of Section 362 and 364 CPC this Court is afforded revisionary power to correct or prevent miscarriage of justice of orders made by the subordinate court. The complainant has requested this Court by the application before court, to correct/reverse the trial court’s order made by the impugned Ruling. As discussed above, this Court does find that the order of the trial court requires to be revised/corrected.
39.Accordingly, the order of the trial court is hereby revised as provided under Section 362 and 364 CPC and the same is hereby set aside. It is substituted with an order that the complainant is a victim as envisaged in VPA. The mode of participation of the complainant shall be decided by the trial court after the trial court does consider the submissions of the parties and bearing in mind the holding and the guidelines of the Supreme Court in the case Jospeh Lendrix Waswa vs Republic (supra).
40.The Ruling and Order made in Kiambu Criminal Case No. 1237 of 2018 on 26th April, 2021 is hereby set aside. The complainant is a victim as envisaged in the Victim Protection Act.
41.The complainant shall present a fresh application before the trial court for permission to participate at the trial.
42.At the reading of this Ruling, a mention date shall be fixed before the Kiambu Chief Magistrate for the Kiambu Criminal Case No. 1237 of 2018 for directions.