1.Article 165(6) of the Constitution gives the High Court supervisory power over the subordinate courts and over any person, body or authority exercising judicial or quasi-judicial function. Article 165(7) furthermore provides how the High Court can exercise its supervisory power. That article 165(7) is in the following terms: -
2.The above constitutional provisions in respect to criminal trials are embodied in section 362 and 364 of the Criminal Procedure Code. Section 362 is in the following terms:-
3.Section 364 confers the High Court power to revise subordinate court’s decision.
6.It becomes obvious from the constitutional and statutory provisions discussed above that the High Court has wide powers to review orders, decisions of subordinate courts and other judicial and quasi-judicial bodies.
7.The application dated November 16, 2022 by the Director of Public Prosecutions (DPP) has sought to invoke the High Court’s supervisory power. The prayers in that application are:-
8.What is before this court is determination of whether the order made by the ruling of November 16, 2022 by senior resident magistrate Wilson Rading was correct, legal or right.
9.The said ruling was delivered in Kiambu Chief Magistrate’s Court Criminal Miscellaneous Case No E955 of 2022. In that matter, Nicholas Mwendwa Kithuku(Mwendwa) challenged the legality of the charge sheet dated July 7, 2022. Mwendwa also filed before this court Constitutional Petition No 16 of 2022 challenging the same criminal proceedings and the charge by the DPP.
10.The existence of the High Court Constitutional Petition was brought to the attention of Hon Rading by this court in an internal memo. On November 16, 2022, the day the said magistrate was due to rule on the substantive matter before him which challenged the legality of the criminal charge, he stated in part:-
11.The said magistrate then ordered:-
12.Although the respondent in the affidavit and in the submissions before court gave the history of the criminal charges, Mwendwa has faced in the past as a basis for not entertaining the application for review, that background is not relevant to what needs determination. What is relevant is consideration whether the magistrate’s order staying the Kiambu Chief Magistrate’s matter pending determination of the High Court Petition was correct or legal.
13.In my view, the stay of the magistrate’s court matter was not issued on sound grounds. This is because there is no stay in the High Court Petition and therefore there was no basis for the magistrates court matter to be stayed. There is no direct nexus which legally permitted the magistrate to grant the stay. The stay was granted without jurisdiction in as far as it was hinged on the High Court petition. It is for that reason this court shall vacate the stay granted. This court in vacating that stay shall not give directives as DPP sought in the application for DPP to commence criminal proceedings against Mwendwa. To give such direction would be to impede the prosecutorial powers of DPP.
14.The orders of the court in respect to the notice of motion dated November 16, 2022 are:-a.The order in Kiambu Chief Magistrate’s Court Criminal Miscellaneous No E955 of 2022 staying the proceeding of that matter is hereby set aside and vacated.b.This file shall henceforth be closed.