REPUBLIC OF KENYA HIGH COURT OF KENYA AT KERICHO CRIMINAL APPEAL NO. 13 OF 2020 REPUBLIC.......................................APPELLANT -VERSUS ERICK KIPKOECH BARTAI.....RESPONDENT (Being an Appeal against the Ruling of Hon. E. KARANI (RM) in CMCR. Case No.33 of 2018 delivered on 29/1/2020). JUDGMENT 1. This is an Appeal by the Prosecution against a Ruling by the Trial Court dated 29/1/2020 which marked the prosecution case as closed. 2. The Respondent was charged with Defilement Contrary to Section 8 (1) as read with Section 8 (4) of the Sexual Offences Act (SOA) No.3 of 2006. 3. The particulars of the charge were that on 19/12/2018 at Mauche in Nakuru County, the Respondent intentionally and unlawfully caused his penis to penetrate the vagina of SC, a girl aged 16 years old. 4. The Respondent is facing an alternative charge of committing on indecent Act with a child Contrary to Section 11 (1) of the SOA No.3 of 2006 in that on the same material particulars as in Count I (above) the Respondent intentionally and unlawfully touched the vagina of SC a girl aged 16 years with his penis. 5. The prosecution called three witnesses but failed to call any more witnesses and the Court granted the last adjournment and subsequently closed the case. 6. The Prosecution has how appealed to this Court against the premature closure of the case by the Court on the following grounds:i. THAT the learned magistrate erred in law and fact by disallowing the prosecution’s application for adjournment. The learned magistrate proceeded to close the prosecution’s case prematurely and granted a mention date to confirm filing of submissions on case to answer and as a result the learned magistrate had locked out crucial evidence that would assist the court to determine the case. ii. THAT the learned magistrate erred in law and fact by failing to appreciate the gravity of the charges against the respondent being defilement contrary to section 8 (1) as read with section 8 (4) of the Sexual Offences Act. iii. THAT the learned magistrate erred in law and fact by failing to appreciate that the right to fair trial as guaranteed in article 50 (1) the Constitution serves both accused persons and victims of crimes, the learned magistrate ought to have balanced the rights of both parties. 7. The Appellant submitted that he was aggrieved and dissatisfied with the ruling issued on 29/1/2020 in S.O No. 83 of 2018, subsequently the appellant lodged the instant petition of appeal to appeal against the said ruling. 8. The Appellant submitted on the chronology of events that lead to the impugned ruling on 29/1/2020 as follows: 9. That on 31/12/2018 the respondent was arraigned in court, a plea of not guilty was entered and consequently the respondent was granted a bond of Kshs. 100,000 plus one surety of similar amount.
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10. That on 14/3/2019 PW 1 the complainant was subjected to voire dire examination and subsequently gave her evidence on oath. 11. That on 19/3/2019 PW 1 was recalled to give her evidence on oath for the second time. 12. That on 21/3/2019 PW 2 and PW 3 gave their evidence on oath. 13. That on 26/10/2019 the appellant sought an adjournment as they were unable to procure attendance of the remaining witnesses in court namely the investigating officer and the doctor. The court granted the adjournment and issued another hearing date. 14. That on 28/11/2019 the appellant sought another adjournment as they were unable to procure the attendance of the remaining witnesses, the court granted an adjournment which was marked as the last adjournment. The court also issued summons to the two remaining witnesses, the investigating officer and the doctor. 15. That on 29/1/2020 the appellant informed the court that they were unable to procure attendance of the doctor who had been transferred to Baringo and the investigating officer who was away in Nairobi for official duties. The court ruled that since it had marked the previous adjournment as the last adjournment and there was no prosecution witness in court on the material day, the prosecution case was marked as closed. 16. The Appellant submitted that the learned trial magistrate acted erroneously by declining to grant a further adjournment and closing the prosecution’s case prematurely without hearing the prosecutions witnesses they cited the case of Republic vs. Paul Mutuku Magado [2019] eKLR 17. The Appellant submitted that the closure the prosecution’s case prematurely violated article 50 (1) of the Constitution of Kenya on the tenets of a fair trial and article 159 (d) of the Constitution which provides that justice must be administered without undue regard to technicalities. The appellant submitted that the right to a fair trial serves accused persons and also victims of crimes. The appellant further submitted that the premature closure of the prosecution case without giving the two remaining witnesses a chance to be heard, the trial court had violated its duty to preserve and protect the victims’ right to justice and due process. 18. The Appellant submitted that closure of the prosecution case prematurely was prejudicial to the prosecution case as the investigation officer and doctor were vital witnesses whose evidence was pivotal for the prosecution case, more so, closure of the prosecution’s case before the doctor could testify meant that the medical examination report was not tendered in court and this was prejudicial to the prosecution case. 19. The appellant cited the case of Seif Juma Mohamed vs. Republic Criminal Appeal No. 61 of 2005; Naomi Bonari Angasa vs. Republic [2018] eKLR to support its position. 20. Respondent submitted that the learned magistrate complied with section 283 of the Criminal Procedure Code and adjourned the case severally after the prosecution gave plausible reasons for non-attendance of its witnesses. The respondent submitted that it was lawful for the trail magistrate to close the prosecution case after the prosecution failed to avail the doctor and the investigation officer even after being given enough time to produce them and that reopening the prosecution case would be prejudicial to his case. 21. The Respondent submitted that the constitution provides that accused persons are entitled to a fair trial without unreasonable delay. The respondent submitted that he has been in remand custody for over four years as he had failed to raise the amount required for bond. 22. The first duty of the first appellate court is to re-evaluate the evidence adduced before the Trial Court and to arrive at its own conclusion whether or not to support the findings of the Trial Court. 23. The issues for determination in this appeal are as follows:i. Whether the trial court erred in closing the prosecution case. ii. Whether the appeal should be allowed. 24. On the issue as to whether the Court erred in closing the prosecution case, I find that the Court had other options such as compelling the witnesses to come to Court by issuing summons and even warrants of arrest. 25. The charge the Accused Person is facing is a very serious one and it is the duty of the Court to ensure witnesses attend court to testify. 26. I find that the Trial Court has not made a ruling under Section 210 and 211 of the C.P.C. and it is in the interest of Justice that the remaining two witnesses be availed so that the Prosecution can close its case after calling all its witnesses. 27. On the issue as to whether the appeal should be allowed, the prosecution ought to have invoked the revisionary jurisdiction of the court as prescribed under section 362 as read with section 364 of the of the CAP 75 rather than the appellate jurisdiction of the court. 28. The Court of Appeal when dealing with the right to appeal against an interlocutory ruling in a criminal matter in the case of Thomas Patrick Gilbert Cholmondeley vs. Republic [2008] eKLR, held that; “In ordinary criminal trials, there is generally no interlocutory appeals allowed for section 379 (1) of the Criminal Procedure Code allows only appeals by persons who have been convicted of some offence…”
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29. In the case of Republic vs. Samuel Gathuo Kamau [2016] eKLR, the court discussed the supervisory jurisdiction of the High Court at length and observed as follows; “Needless to say, that supervisory jurisdiction is exercised as may be provided by law – by way of appeal, revision, etc… it does not include any perceived power to make a decision on behalf of a subordinate court... In the case of appeals, the supervisory power dis exercised in respect to conviction, sentence, acquittal (section 347, 348 and 348A of the Criminal Procedure Code). As for revision, the supervisory jurisdiction is exercised in respect to findings, sentences, orders and regularity of any proceedings see Article 165 (7) of the Constitution and sections 362 and 364 of Cap 75…” 30. In the case of Republic vs James Kiarie Mutungei [2017] eKLR Nyakundi J. held thus; “the rationale of the High Court as a revisionary authority can be initiated by an aggrieved party or suo moto made by the court itself, to call for the record relating to the order passed or proceedings in order to satisfy itself as to the legality, propriety or correctness of the order in question. The scope of revision therefore is more restrictive in comparison with the appellate jurisdiction which requires the high court to rehear the case and evaluate the evidence in totality by the lower court to come with a decision on the merits.” 31. On account of the revisionary power vested in this court, I hereby direct that the Trial Court re-opens the case and allows the Prosecution to call the Clinical Officer and the Investigating Officer before closing its case. 32. The original file is referred back to the Trial Court for compliance. The matter will be mentioned on 5/4/2022 before the Trial court for purposes of taking a hearing date. DELIVERED, DATED AND SIGNED AT KERICHO THIS 18TH DAY OF MARCH, 2022 A. N. ONGERI JUDGE
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