Simiyu v Nyakongo & another (Criminal Appeal 34 of 2020) [2023] KECA 66 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that crime victims can ask the High Court to reverse improper acquittals, without needing the prosecutor's permission.
What this practically means
#Executive summary
#Key legal issues
#Distinction between revisionary jurisdiction under the CPC and constitutional supervisory jurisdiction under article 165(6) & (7)
The revisionary jurisdiction under sections 362-367 CPC is a narrow scope of review over criminal proceedings, excluding orders of acquittal; the constitutional supervisory jurisdiction is broader, extends to any person, body or authority exercising judicial or quasi-judicial functions, covers civil and criminal proceedings, and permits the High Court to make any order or give any direction appropriate to ensure the fair administration of justice.
The court contrasted section 362 CPC, which limits revision to correctness, legality, propriety and regularity of findings in criminal proceedings and excludes acquittals under section 364(1)(b), with article 165(6) & (7), which extends to tribunals and quasi-judicial bodies and empowers any order ensuring fair administration of justice. It noted the High Court (Organization and Administration) Act and the High Court Rules operationalize the constitutional power. When exercising CPC revision the High Court is still enforcing a supervisory role, but on CPC's limited conditions.
Locus standi of the complainant/victim to move the High Court in revision
The 1st respondent, as the complainant and a victim directly affected by the appellant's acts, had locus standi to bring the revision application under articles 22 and 50(1) of the Constitution and section 9 of the Victim Protection Act; leave is not required and the right is not the DPP's monopoly.
The court found the 1st respondent was not a mere complainant but a victim who reported the theft and whose property was particularized in the first count. Articles 22 and 50(1) are enabling provisions for any aggrieved person, and the Victim Protection Act, enacted under article 50(9), obliges courts to give every victim an opportunity to be heard before decisions affecting them are taken. Relying on Joseph Lendrix Waswa v Republic, a victim has a right to participate in criminal proceedings.
Whether the High Court properly exercised supervisory jurisdiction to set aside the acquittal under section 202 CPC
Yes. The acquittal was illegal and improper: the application before the trial court was for withdrawal under section 87(a) CPC, yet the magistrate suo motu acquitted under section 202 without evidence that the complainant or witnesses had been bonded and had failed to attend, constituting procedural unfairness, failure to consider relevant matters and unreasonableness.
The court held section 202 CPC applies only where the complainant, having notice of the hearing, does not appear, and the requisite evidence of notice and bonding was absent - a fact the appellant did not contest. It characterized the magistrate's recourse to section 202 in the circumstances of a section 87(a) withdrawal application as unprocedural, illegal and improper, justifying intervention in the exercise of the High Court's supervisory jurisdiction under article 165(6) & (7).
Whether the DPP's failure to appeal the acquittal ousted the High Court's jurisdiction under section 364(1)(b) & (5) CPC
No. That bar applies to the revisionary jurisdiction under the CPC; the High Court acted on its distinct and broader constitutional supervisory jurisdiction, which is not so limited.
The appellant argued that because the DPP could have appealed but did not, revision was barred and the DPP estopped. The court held the supervisory jurisdiction under article 165(6) & (7) is not operationalized or limited by sections 362-367 CPC, and approved the High Court's reasoning that the supervisory power allows any order or direction appropriate to ensure fair administration of justice, so long as an acquittal is not turned into a conviction.
Legal principles established
#- Revisionary jurisdiction under sections 362 to 367 of the CPC is distinct from, and narrower than, the constitutional supervisory jurisdiction under article 165(6) & (7); the latter is broad-based, covers civil and criminal matters, and is not limited as to who may invoke it.
- A victim of an offence has locus standi to approach the High Court in revision or under its supervisory jurisdiction when aggrieved by an order of a subordinate court; the right is not the preserve of the DPP.
- Section 202 of the CPC cannot be invoked to acquit unless there is evidence that the complainant/witnesses had notice of the hearing and had been bonded but failed to attend court.
Court orders
#- 1.The appeal is dismissed.
- 2.The orders of the High Court in its ruling of 1st November 2019 are affirmed.
- 3.The date for arraignment of the appellant before the Chief Magistrate's Court Mombasa shall be within 30 days of the date of the judgment.
- On appeal from
- High Court of Kenya at Mombasa
- Criminal Revision Application No. 5 of 2019
- Jurisdiction invoked
- First appeal against a High Court ruling in criminal revision, under sections 362 and 364 of the Criminal Procedure Code and article 165(3), (6) & (7) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Simiyu v Nyakongo & another (Criminal Appeal 34 of 2020) [2023] KECA 66 (KLR)", Case Analysis (2023). Criminal Appeal (from High Court Mombasa Criminal Revision Application No. 5 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/66/eng@2023-02-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.