1.The Director of Public Prosecutions, the Applicant herein, seeks the revision of the orders of the court in a Ruling delivered on 4th April 2023 in Milimani ACC No. 6 of 2019.
2.The Application is contained in the Notice of Motion brought under a Certificate of Urgency dated 25th April 2023 and is supported by an affidavit sworn by Evah Kanyuira, Senior Prosecution Counsel in the Office of the Director Public Prosecutions. The Applicant invokes the provisions of Article 50,165 (6) and (7) of the Constitution, Sections 87(a), 205, 214,215, 362 and 364 of the Criminal Procedure Code, Sections 4,5(b) and 25 of the Office of the Director Public Prosecutions Act and the Guidelines on Decision to Charge and seeks the following orders:
3.The Application is based on the following grounds as stated on its face thereof and in the supporting affidavit of Evah Kanyuira:
4.The Application is vehemently opposed by the 1st, 2nd, 3rd, 4th, 5th, 6th, 9th,10th, 11th, 14th and 16th Respondents through their respective Grounds of Opposition dated 18th July 2023 and 16th June 2023. The parties relied further on the written submissions filed in the matter.
The Applicants case
5.The gist of the Applicant’s case as stated in the pleadings and the written submissions dated 5th July 2023 is that the trial court’s Ruling delivered on 4th April 2023 is unconstitutional as it is an affront to the Office of the Director of Public Prosecutions’ Prosecutorial powers.
6.The Applicant contends that the trial court erred in declining the application by the prosecution in that: - it was unconstitutional to direct the Director of Public Prosecutions on how to conduct the trial by unnecessarily stalling the plea agreement proceedings; by misapplying Section 214 of the Criminal Procedure Code; erred in his application on the law of disclosure and by considering extraneous matters.
7.The Applicant framed 6 issues for determination:
8.On the first issue, Learned Counsel for the Applicant submitted that this court has jurisdiction under Article 165 of the Constitution to supervise subordinate courts and to review any order or action; that the jurisdiction is broader than the revisionary jurisdiction under Sections 362 to 367 of the Criminal Procedure Code; That this authority cannot be limited by any statutory provision and that the Application goes into the constitutionality of the ruling by the trial court, much more than the correctness or illegality thereof. Counsel placed reliance on the case of Director of Public Prosecutions v Perry Mansukh Kasangara & Others  eKLR.
9.On the amendment of the charges, Counsel submitted that the prosecution met the conditions for amendment of the charges set out in Section 214 of the Criminal Procedure Code and the reasons given in the impugned ruling by the trial court were erroneous; that it was erroneous for the court to base its finding on the fact that the trial had taken 5 years and 5 out of 33 prosecution witnesses had already testified; that the court failed to consider that the delay was not occasioned by the prosecution; that it was wrong for the court to find that the proposed amendment was a substantive yet the amendments were restricted to correcting the Statement of the Offence, correcting the particulars in Count 4,6,9 and 10 and adding three Counts against the 3rd, 6th and 7th accused persons and also sought to withdraw charges against the 23rd accused person.
10.On the third issue, Counsel contended that the trial court misapprehended the cases it relied upon in arriving at its decision; that the court did not carefully analyze the ratio decidendi in the cases of Republic v Martha Mukami & another  eKLR, RepublIc v Michael Ezra Mulyoowa  eKLR, Republic v Sospeter Odekee Ojamoong & 8 others  eKLR and Republic v Charlse Musyimi Maithya & 3 Others  eKLR. That the correct application of the authorities would have resulted in the trial court allowing the prosecution's application.
11.On the third issue, the Applicant contends that the court did not properly appreciate the law on disclosure of evidence under Article 50 (2) of the Constitution. That the voluminous nature of the evidence would not be a factor to be considered in allowing the prosecution to supply additional evidence as the defence would have had adequate opportunity to prepare their defence. Further that the court imputed improper motive on the prosecution without any evidence and that the trial court erred by concluding that the Application was brought with ulterior motive, which was discourteous to the prosecution.
12.On the fourth issue Counsel asserted that Article 157(8) of the Constitution and Section 143 of the Evidence Act allows the prosecution to withdraw the case against the 22nd accused person; that the prosecution retains the discretion to prosecute criminal cases without undue influence; and that the prosecution had satisfied the law in making such application. Counsel stated that the Application was brought in good faith and no prejudice would be occasioned to the other accused persons. In support of her submissions Counsel cited the case of Republic v Simon Okoth  eKLR.
13.On the fifth issue, Counsel argued that the trial court did not conduct itself properly in the proceedings; that the court used pejorative terminology in the ruling. That although the court was not neutral in its ruling, the Prosecution abandoned its prayer for the recusal of the Learned Magistrate; that the court ought not to direct the prosecution in the matter of the refund of the amount paid pursuant to the plea bargain as that was not a prayer that had been sought in the application and in any event, the Learned Magistrate ought to have confined himself to Sections 137 A-O of the Criminal Procedure Code. Counsel submitted that the Applicant had made a case for the grant of the orders sought in this Application.
The case for the Respondents
14.The 1st Respondent raised six grounds of opposition to wit: that this application is misconceived and an abuse of the court process; that the Applicant’s remedy lies on appeal as opposed to revision; that this court lacks the jurisdiction to re-evaluate the evidence before the lower court in a revision application; that the applicant has failed to point out any illegality, incorrectness or impropriety in the impugned ruling; the Orders as framed in prayer no. 5 cannot be granted in a revision application brought under Section 364 of the Criminal Procedure Code; the orders sought are prejudicial to the 1st and 2nd Respondents and that the Application is an attempt at seeking the recusal of the learned trial magistrate from the trial proceedings without filing a formal application for recusal.
15.On their part, the 3rd, 4th, 5th, 6th, 9th,10th 11th 14th and 16th Respondents contend that the prayers sought in the applicant cannot be granted in a revision application but only on appeal. That the scope of revision and the High Court’s supervisory jurisdiction is limited. For this Counsel cited the cases of Republic v Evans Mairura Omwenga  eKLR and George Aladwa Omwera v Republic  eKLR.
16.Counsel submitted that the Application in effect seeks to challenge the dismissal of the applicant’s application to amend the charge sheet and adduce additional evidence which application was brought four years after a lengthy hearing and that the trial court applied the correct principles of law.
17.Counsel contended that on the supply of additional evidence, the court correctly considered and applied the principles set out in the case of Sospeter Ojaamong (supra); that the prosecution did not place any material before the court to explain why the documents had not been supplied four years into the trial; That introduction of new evidence would prejudice the accused persons right to a fair hearing under Article 50 in that it would necessitate the recall of witnesses, taking into account that the trial had taken more than four years. They urged the court to dismiss the Application.
Issues for determination
18.A reading of the Pleadings and the rival submissions of learned Counsel for the parties I find that only one issue arises for determination and that is:-
Analysis and determination
19.The supervisory jurisdiction of this court under Article 165(6) of the Constitution is given effect in Sections 362 and 364 of the Criminal Procedure Code which states:-
20.It is trite that the court’s jurisdiction on revision is limited to correcting a manifest error in the proceedings of the trial court so as to ensure the fair administration of justice. The court does not delve into the merits of the decision as it would do when exercising its appellate jurisdiction and it cannot be justified in substituting its own views on matters of fact or evidence before the trial court. In the case of Joseph Nduvi v Republic  eKLR the court stated: -
21.In the case of George Aladwa Omwera v Republic  eKLR (supra), the Court observed that:-
22.This was also the position taken by the court in the case of Reuben Mwangi Nguri v Republic 2021 eKLR where the court held:-
23.While the jurisdiction is discretionary, it must be exercised judicially taking into account the circumstances of each case.
24.To succeed under Sections 362 and 364 of the Criminal Procedure Code, the Applicant must demonstrate to the court that either the finding or order or proceedings of the trial court is incorrect, illegal or improper. As stated the court must never be required to go into the merits of the case and indeed where an appeal lies but the Applicant decides to proceed by way of revision the court ought not entertain such application. (See Section 364 (5) of the Criminal Procedure Code).
25.The courts have with time expanded the circumstances under which revision may be exercised and in the case of Director of Public Prosecutions v Perry Mansukh Kansagara & 8 Others  eKLR the court went to great lengths to distinguish supervisory jurisdiction from revision and stated:-
26.Further, the court in Reuben Mwangi (supra), while citing the English Court of Appeal decision REX Versus Compensation Appeal Tribunal 1952 IKB 338 – 347 reinforced the jurisdiction as follows:-
27.In the present application, the Applicant contends that the trial court erred in declining the application for amendment of the charges so as to introduce new counts and to drop charges against one accused. It is also contended that he erred by misapplying the authorities cited in that regard. Learned Counsel for the Applicant referred this court to those authorities as Republic v Martha Mukami & another  eKLR, Republic v Michael Ezra Mulyoowa  eKLR, Republic v Sospeter Odekee Ojamoong & 8 others  eKLR and Republic v Charles Musyimi Maithya & 3 Others  eKLR.
28.It is also contended that the trial court erred in declining the prosecution’s request to introduce additional evidence in the case. They also impugn the conduct of the trial magistrate in the matter and contended that he interfered with the plea agreement process and issued orders for refund of monies paid by some of the accused persons upon collapse of the plea agreement when no such order was sought; that the learned magistrate considered extraneous matters and even directed the Office of the Director of Public Prosecutions to withdraw the case when the decision to do so is the preserve of the Office of the Director of Public Prosecutions and that the Learned Magistrate’s allegation that the application was couched in ulterior motives was discourteous to Counsel and that therefore the magistrate ought not to continue hearing the case.
29.In the matter of amendment of charges, the power to amend is donated to the trial court by Section 214(1) of the Criminal Procedure Code. The Court’s power is at all times to be exercised judicially but not capriciously. The court is enjoined to consider the circumstances of the case and the interest of justice. The jurisdiction is unfettered the only condition being that should the charge be amended the court shall call upon the accused person to plead to the amended charge - (Section 214 (1) (i) of the Criminal Procedure Code) and also to have the witnesses recalled to testify afresh or to be cross examined. (Section 214 (1) (ii) of the Criminal Procedure Code). My reading of the impugned ruling reveals that the trial magistrate duly considered the reasons for the application but declined to grant the amendment for the reasons that the trial has substantially progressed – for about five years and that several witnesses have already testified hence the amendment would violate the accused persons’ guaranteed right to fair trial (speedy trial). The learned magistrate gave the same reason for declining the application for additional evidence.
30.In my considered view, taking into account the right to fair trial of the accused person in such an application is not an error. To the contrary it is a must in light of Articles 25(c) and 50 of the Constitution. it is also not an extraneous matter and the trial magistrate cannot therefore be faulted for basing his decision or finding on that ground. As to whether the finding was merited, as already stated, that is not an issue for revision but for appeal. Be that as it may, it is a principle of any trial whether civil or criminal, that a party ought not to be allowed to patch up its case as it progresses, a principle which the learned magistrate also took into account in rejecting the application. It is also instructive that the Criminal Procedure Code has many provisions regarding the effect of a defective charge to a trial. (See Sections 137 and 382) which learned Prosecution Counsel would be minded to consider. The long and short of it, however, is that I find no illegality, incorrectness or impropriety in the finding/order of the trial magistrate.
31.As for the allegation that the trial magistrate misconducted himself I find firstly that, by stating that the prosecution “should consider withdrawing the entire case” the trial magistrate did not make an order for the Director of Public Prosecutions to withdraw the case. This in my view was but a mere suggestion which does not bind the court. My finding is fortified by the fact that the remarks were made Orbiter dictum and should have been treated as such.
32.In regard to the plea agreements, there is nothing on the record to demonstrate that interference by the learned trial magistrate. Indeed, Section 137C (3) of the Criminal Procedure Code prohibits the court form participating in the plea agreement. From the record, the only thing the trial magistrate did was to direct the Prosecution to refund the accused person who had monies paid pursuant to the agreement which the Director of Public Prosecutions later reneged on. Whereas this was definitely not a ground to refuse the application, I would expect that the Director of Public Prosecutions would not require any urging to do so.
33.As for the prayer that the case ought to be removed from the learned trial magistrate, my finding is that that is an issue for recusal which procedurally should be made before the learned magistrate in the first instance.
34.In the upshot the application is found to be unmerited and it is dismissed.