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Court of AppealPartially AllowedCriminal Appeal No. 83 of 2017

Samuel Otieno Obudo & 6 others v Republic [2019] KECA 729 (KLR)

Court of Appeal
24 May 2019
5,965 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~24 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed magistrates can strike out criminal charges when prosecutors fail to disclose key documents, and the DPP must appeal rather than seek revision.

What this practically means

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Executive summary

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Seven employees of the National Assembly and the Parliamentary Service Commission were charged before the Chief Magistrate's Court with conspiracy to commit felony, abuse of office, and making a document without authority, arising from the procurement of toners. The prosecution failed to supply documents the defence considered crucial, notably PSC minutes the defence said authorised the procurements, claiming they were privileged or classified. The magistrate struck out and dismissed the charges on fair trial grounds. On the DPP's revision request under Articles 165(3)(6) and (7) and sections 362 and 364 of the CPC, the High Court (Ngenye-Macharia, J) held the magistrate had acted ultra vires her jurisdiction and reinstated the charges. The Court of Appeal allowed the appellants' appeal. First, it held that a magistrate's court is not barred from determining fair-trial issues arising in proceedings before it; the application before the trial court was not constitutional litigation but an application to strike out charges for non-disclosure and non-compliance with court orders. Second, and decisively, the Court held that the DPP had a right of appeal under section 348A of the CPC against an order dismissing a charge, and section 364(5) bars revision at the instance of a party who could have appealed; the High Court erred in invoking inherent jurisdiction and Article 159 of the Constitution to entertain the revision. The Court reaffirmed the prosecution's continuing duty of disclosure. The ruling and order of the High Court dated 2nd March 2017 were set aside, with no order as to costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the learned magistrate acted without jurisdiction in striking out and dismissing the charges against the appellants
  2. 2.Whether the High Court acted with jurisdiction in entertaining the respondent's request by way of revision rather than appeal
  3. 3.Whether the magistrate's court has jurisdiction to determine issues concerning fair trial arising in the course of criminal proceedings

Key legal issues

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01

Jurisdiction of magistrate's court to determine fair trial issues and strike out charges

Holding

The magistrate had jurisdiction to strike out and dismiss the charges where the prosecution failed to furnish crucial documents; section 8 of the Magistrates' Court Act does not bar such determinations.

Reasoning

The Court held that the right to a fair trial is non-derogable and that a magistrate's court may determine fair-trial issues arising in proceedings before it. The application before the trial court was not constitutional litigation under section 8 of the Magistrates' Court Act but an application to strike out charges for non-disclosure and non-compliance with court orders; the trial court was simply exercising its powers to deal with non-compliance by a party.

p. 5
02

Revision versus appeal under sections 362, 364 and 348A of the CPC

Holding

The High Court erred in entertaining the DPP's revision request when the DPP had a right of appeal under section 348A; section 364(5) bars revision at the instance of a party who could have appealed.

Reasoning

The Court read section 364(5) of the CPC as prohibiting revision proceedings at the insistence of a party who had a right of appeal and did not exercise it. Section 348A expressly grants the DPP a right to appeal against an order dismissing a charge. The High Court itself conceded the DPP should have appealed yet invoked inherent jurisdiction and Article 159 of the Constitution to entertain the revision, which was an error of law.

p. 6
03

Continuing duty of disclosure by the prosecution

Holding

The prosecution's duty to disclose extends to evidence it does not intend to use and continues throughout trial; the minutes of the PSC were central to the appellants' defence and they had a legal right to access them.

Reasoning

Relying on Cholmondeley, the Court reaffirmed that the prosecution must disclose all evidence in its possession, whether or not it intends to rely on it, and that the duty continues during trial. The requested PSC minutes formed the particulars of the charges and stood to impede the appellants' fair trial if withheld, especially where the respondent took a firm stand that they could not be produced.

p. 4

Legal principles established

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  • A magistrate's court is not barred from determining issues concerning a fair trial that arise before it in the course of proceedings before it.
  • Where a right of appeal lies, only a party with no right of appeal may seek revision; a party who could have appealed cannot insist on proceeding by way of revision.
  • A court cannot invoke inherent jurisdiction or Article 159 of the Constitution to circumvent a specific statutory procedure for redress.
  • Where there is a specific procedure provided for redress of grievances, that procedure must be strictly followed.

Court orders

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  1. 1.Appeal allowed
  2. 2.Ruling and order of the High Court dated 2nd March 2017 set aside
  3. 3.No order as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

William Ouko
W. OukoJA
Currently serving
majority

Wrote the judgment

majority
majority
On appeal from
High Court of Kenya at Nairobi
H.C. Cr. A. No. 179 of 2016 (Criminal Revision)
Jurisdiction invoked
Sections 348A and 364 of the Criminal Procedure Code; Article 164 of the Constitution (first appellate jurisdiction)

Relief refused

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Restoration/reinstatement of the High Court's order reinstating the charges

The respondent had a right of appeal under section 348A and could not pursue revision; the High Court could not use inherent jurisdiction or Article 159 to circumvent the statute

p. 6

Costs

There shall be no order as to costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It is on this premise that we allow the appeal, set aside the ruling and order of the High Court dated 2 nd March 2017. There shall be no order as to costs.
p. 6Disposition
But we emphasize that only a party who has no right of appeal that may seek revision.
p. 5Revision jurisdiction
A court cannot invoke inherent jurisdiction to circumvent the provisions of a statute.
p. 6Inherent jurisdiction and statute
In our view, the provision does not bar a magistrate’s court from determining issues concerning a fair trial that may arise before it in the course of the proceedings.
p. 5Magistrate's jurisdiction over fair trial
The duty continues during the pre-trial period and during the trial itself, so that if any new information is obtained during the trial, it must be disclosed.
p. 4Prosecution disclosure duty
where there is a specific procedure provided for redress of grievances, that procedure ought to be strictly followed
p. 6Specific procedure for redress

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Samuel Otieno Obudo & 6 others v Republic [2019] KECA 729 (KLR)", Case Analysis (2019). Criminal Appeal No. 83 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/729/eng@2019-05-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.