1. This file was forwarded to the High Court by the Deputy Registrar of the High Court, pursuant to a letter dated 16/04/2024, written by Ambwere T.S. and Associates Advocates.
2. It relates to the order given by the Hon. Olimo SPM on 22/04/2024 in Mombasa CM’s Inquest No. E004 of 2023.
3. The said inquest commenced on 31/03/2023 with 3 witnesses giving evidence before the Hon. V.O. Adet PM.
4. On 1/11/2023, the matter was taken over by the Hon. Olimo SPM and some other 4 witnesses gave evidence.
5. The last witness was Sgt. Nyamuse Mueno IW9 who testified on 26/03/2024.
6. After his evidence the prosecution indicated that they wished to close their case and they sought a ruling date.
7. The inquest court then noted as however:
“I note that 1WF. One Arthur Kasidi Bindo has been (bad) adversely mentioned in the inquest. I therefore believe that he is a person of interest. For these reasons, I do hereby direct that IW7 (person 7 interest) posts a bond of Kshs.500,000 with two (2) sureties of a similar amount pending ruling. 1WF (person of interest to be remanded in custody pending bond approval.
Ruling on 08/05/2024
Signed – 26/03/2024”
8. The said IW7 was not able to post this bond and he remained in custody until the matter was referred to this court. The bond had however been reviewed to Kshs.100,000/= when the Advocates intervened and initially he was released on a free bond.
9. The inquest court also suspended the delivery of its ruling.
10. The Revision was sought under Section 362 of the Criminal Procedure Code and 4 grounds are cited:
i. THAT the Applicant was held at King’orani Prison on the basis that he was a person of interest in an Inquest that had not concluded.
ii. THAT there is no legal basis in an inquest to arrest and detain a person on interest or no legal terminology for a person of interest.
iii. THAT the detention and arrest of the Applicant in an inquest is against the rule of law and is not provided for.
iv. THAT the constitutional right to a fair hearing and fair administrative process was breached and should be addressed by this court.
v. THAT having already made up its mind, the court in the Inquest cannot be said to be impartial and open, as such the process should be stopped.
11. Section 386(1)(b) of the CPC which deals with the steps to be taken by the investigating officer. The section provides:
“Sec 386(1)(b)(1) The officer in Charge of a Police Station, or any other officer specially empowered by the Minister in that behalf, or receiving information that a person –
(b) Has been killed by another or by an accident; Shall immediately give information thereof to the nearest Magistrate empowered to hold inquest, and, unless otherwise directed by the rule made by the minister, shall proceed to the place where the body of the deceased person is, and shall there make an investigation and draw up a report on the apparent cause of death, describing such wounds, fractures, bruises and other marks of injury as may be found on the body, and stating in what manner or by what weapon or instrument (if any), the marks appear to have been inflicIed; and the report shall be forwarded forthwith to the nearest Magistrate empowered to hold the inquests”.
12. Section 387 provides: “
(1) When a person dies while in the custody of the police, or of a prison officer, or in a prison, the nearest magistrate empowered to hold inquests shall, and in any other case mentioned in section 386(1) a magistrate so empowered may, but shall in the case of a missing person believed to be dead, hold an inquiry into the cause of death, either instead of or in addition to the investigation held by the police or prison officer, and if he does so he shall have all the powers in conducting it which he would have in holding an inquiry into an offence.
(2) Whenever the magistrate considers it expedient to make an examination of the dead body of a person who has been already interred, in order to discover the cause of his death, the magistrate may cause the body to be disainterred and examined.
(3) If before or at the termination of the inquiry the magistrate is of the opinion that the commission by some known person or persons of an offence has been disclosed, he shall issue a summons or warrant for his or their arrest, or take such other steps as may be necessary to secure his or their attendance to answer the charge; and on the attendance of the person or persons the magistrate shall commence the inquiry de novo and shall proceed as if he had taken cognizance of an offence.
(4) If at the beginning of the inquiry the magistrate is of the opinion that an offence has been committed by some person or persons unknown, he shall record his opinion and shall forthwith send a copy thereof to the Director of Public Prosecutions.
(5) If at the termination of the inquiry the magistrate is of the opinion that no offence has been committed, he shall record his opinion accordingly”.
13. It is clear that the mandate of a Magistrate holding an inquest is, inter alia, to determine whether, in his or her opinion, an offence has been disclosed by a known person, and if so to issue a summons or warrant of arrest. The object of the power is to ensure that the person suspected of having committed the offence is secured to attend and answer the charge.
14. The nature of an inquest was described by the court in Kemei v Director of Public Prosecutions & another (Criminal Appeal 52 of 2020) [2022] KEHC 12153 (KLR) (27 July 2022). There, Bwonwong’a J held:
“An inquest is a judicial inquiry conducted to determine the surrounding circumstances and the cause of a person's death of a deceased person. It is an inquiry that examines witnesses on oath who testify on any relevant matter or information in order to establish as to who the deceased was, how and under what circumstances he met his death. The inquest is an inquiry to establish material circumstances in respect of the death of the deceased. It is an investigative process. This is clear from the provisions of sections 387 (4) and (5) of the Criminal Procedure Code, which read as follows:(4)If at the termination of the inquiry the magistrate is of the opinion that an offence has been committed by some person or persons unknown, he shall record his opinion and shall forthwith send a copy thereof to the Director of Public Prosecutions (DPP).(5)If at the termination of the inquiry the magistrate is of the opinion that no offence has been committed, he shall record his opinion accordingly.”
15. At the conclusion of an inquest, the inquest court is required to make specific orders. In this case the inquest court found that an offence had been committed by a known person, the applicant. The inquest court then recommended Under Section 387 (3) that the applicant be charged with the relevant offence in respect to the death of Joseph Wachira Murithi.
16. The power of revision which this court has been asked to exercise is to find that order was unconstitutional. The power of revision vested in this court by section 362 of the CPC is as follows:
“The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court” (Emphasis added).
17. The question here is; do the impugned order of the magistrate in the inquest court fall afoul of the law? Is order or any aspect of them incorrect, illegal or lacking in propriety in terms of section 362 of the CPC? This is what the court is required to establish.
18. In Manyibe & 4 others v Office of Director of Public Prosecutions & 2 others (Criminal Revision E001 of 2022) [2023] KEHC 2757 (KLR) (24 March 2023) it was stated that an inquest takes the nature of criminal proceedings. Where section 387(3) is invoked, the suspect would be in a position similar to that of a defendant in criminal proceedings, as he would have to deal with the adverse evidence against him. There, Musyoka J held:
“Whoever initiates the inquest proceedings bears the responsibility of prosecuting them. There can be no criminal proceedings without a prosecutor, and inquest proceedings are, in nature and character, criminal proceedings. Is there a defence? Not in the strict sense of the word, but where section 387(3) kicks in, the suspect would be in a position similar to that of a defendant in criminal proceedings, as he would have to deal with the adverse evidence against him. Is there a trial in inquest proceedings? Trials are not just about persons, they are also about issues. In an inquest, there are issues that the magistrate would be required to resolve, whether or not there are parties to the proceedings, other than the prosecutor. The hearing is intended to provide material to the magistrate to help him resolve the issues. The hearing is the trial, of the persons before the court in criminal proceedings, and of the issues before the court, in civil and criminal proceedings. Whenever a hearing has to be conducted in any matter, there would be a trial, for a hearing becomes necessary where there are issues for trial or determination. Inquests are conducted to determine issues, which are clearly set out in sections 386, 387 and 388 of the Criminal Procedure Code.”
19. An inquest is a judicial inquiry or investigation to ascertain the facts relating to an incident. “Inquest” is defined in Black’s Law Dictionary to mean:“an inquiry by a coroner or medical examiner sometimes with the aid of a jury into the manner of death of a person who has died under suspicious circumstances or who has died in prison…..”
20. The report that is made to the magistrate for inquiry under Section 386(1) CPC, in a case such as the present one, is to investigate whether a person has been killed by another or by an accident; or under circumstances raising a reasonable suspicion that some other person has committed an offence. This is under sub-sections 1(b) section and 1(c) of the CPC:
“(1)The officer in charge of a police station, or any other officer specially empowered by the Minister in that behalf, on receiving information that a person— (a) has committed suicide; or (b) has been killed by another or by an accident; (c) has died under circumstances raising a reasonable suspicion that some other person has committed an offence; (d) is missing and believed to be dead; shall immediately give information thereof to the nearest magistrate empowered to hold inquests”
21. Thus, where there is such a death, the officer in charge of a police station is required to give information to a magistrate empowered to hold inquests. Under section 387 (1) CPC the magistrate is required to:
“hold an inquiry into the cause of death, either instead of or in addition to the investigation held by the police or prison officer, and if he does so he shall have all the powers in conducting it which he would have in holding an inquiry”
22. It seems to me that to “hold an inquiry into the cause of death” in these cases essentially means to investigate all facts and circumstances that would enable the inquirer to come to an appreciation or understanding of the cause of the death by an accident or the death under suspicious circumstances. It is in a sense a no holds barred and unlimited investigation that can include any party or person or place or thing that will enable the investigator to unearth the truth.
23. The inquiry by the magistrate is statutorily expected to be “instead of or in addition to” an investigation by a police officer or prison officer. Given that comparative, it is clear to me that an inquest by a magistrate is really intended to be an investigation into the facts and circumstances causing the death, but cannot apportion liability as that is the role of a judge or magistrate acting under criminal law.
24. The criminal jurisdiction is invoked when the opinion arising from the inquest discloses an offence and a summons or warrant is issued for the arrest of the person implicated to answer to a charge framed for a prosecution by a prosecutor. This is what Musyoka J meant in the Manyibe case above when he said:
“….but where section 387(3) kicks in, the suspect would be in a position similar to that of a defendant in criminal proceedings, as he would have to deal with the adverse evidence against him.”
25. In R (On the application of Maughan v Her Majesty’s Senior Coroner for Oxfordshire) 2020 UKSC 46 Supreme Court of the United Kingdom an inquest was described in the following terms:
“An inquest was a fact finding exercise and not a method of apportioning guilt. The procedure and rules of evidence which were suitable for one are unsuitable for the other. In an inquest it should never be forgotten that there were no parties, there was no indictment, there was no prosecution, there was no defence, and there was no trial, simply an attempt to establish facts. It was an inquisitorial process, a process of investigation quite unlike a criminal trial where the prosecutor accused and the accused defended.”
26. I agree with the above position of the English Supreme Court. In Maurice Ndoo & Kinyiua Mwelenga v Republic [2016] eKLR, the inquest court concluded its ruling by utilising language that clearly did not apportion liability in stating that:
“The courts findings were therefore that he undoubtedly died in police custody. The concerned police officers no doubt share some degree of blame for his demise but the court cannot apportion liability beyond that without delink (sic- delving) into the realm of speculation.”
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37. In other words, the language to be used in an inquest or investigation ought not to be such as to apportion blame or liability as the investigation report will be dealt with in the criminal trial to follow after the inquest or investigation. The inquest or investigation puts together material that advises or informs the prosecution when conducting the subsequent criminal case.
38. It must be remembered that an inquest is an inquisitorial process not an adversarial process; It has no prosecutor; it has no defendant or defence counsel; therefore, it has no safeguards, strictu senso, for the constitutional conduct of a criminal proceeding properly so called. The investigative process is not measured against, and does not measure with any standard of proof there being no defendants or accused persons under measurement. Inquest courts must not fall into the temptation that they are conducting a trial – they are not, they are conducting an inquiry just as a police officer or prison officer would.
Indeed, in the present case, the applicant was called to testify did table material before the inquest court.
39. Section 387(3) of the Criminal Procedure Code provides as follows;
387(3) If before or at the termination of the inquiry, the magistrate is of the opinion that the commission by some known person or persons of an offence has been disclosed, he shall issue a summons or warrant for his or their arrest, or take such other steps as may be necessary to secure his or their attendance to answer the charge; and on the attendance of the person or persons the magistrate shall commence the inquiry de novo and shall proceed as if he had taken cognizance of an offence.
40. The tenor and effect of the provision is that once the magistrate has concluded that the offence was committed by a known person or persons, the magistrate must summon that person or those persons or cause his or their attendance by way of a warrant of arrest. This is to enable the suspects to answer to the charges framed by the magistrate. It is on the basis of the charges framed that the magistrate proceeds with the trial. The provision empowers the magistrate to charge and try the suspect without any reference to the power of the Director of Public Prosecutions to decide whether or not to commence the prosecution.
41. In Nisha Sapra v Republic Nairobi High Court Misc. Criminal Application No. 39 of 2008 (Unreported) J B Ojwang’ J., (as he then was) in a ruling dated 27th February 2008 held that the order of arrest issued by the learned magistrate under section 387(3) of the Criminal Procedure Code was inconsistent with the prosecutorial powers of the Attorney General conferred by section 26 of the former Constitution. He stated as follows;
Since the prosecutorial function by section 26 of the Constitution, belongs in substance to the Attorney General, the inquest Magistrate’s mandate was limited to stating his finding of fact, without preferring a particular course of prosecution action to be taken by the Attorney General. I will not, however, hold this shortcoming in the inquest ruling to have compromised the prosecutorial decision later taken by the Attorney General as there is no evidence that the Attorney General has made reliance on not just the inquest-findings, but also on the records of evidence in the Police files. These foundations of prosecution have the effect of rendering the inquest proceedings, as such, essentially a historical record, and I hold that it will not by any means prejudice the applicant. The Attorney General may proceed with prosecution in accordance with the law.
42. I agree with the reasoning and as I held in Re Philip Odhiambo Otieno (deceased) HB Criminal Revision No. 8 of 2014 [2015] eKLR, Article 157(6)(a) of the Constitution vests in the Director of Public Prosecutions the State power to, “institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed.” This provision does not permit the magistrate’s court to initiate criminal proceedings in the manner prescribed by section 387(3) of the Criminal Procedure Code which no doubt the learned magistrate had in mind when she directed that suspect be summoned to take the plea. The provision is patently unconstitutional is so far at it purports to vest the Judiciary with powers that are clearly reserved for the Director of Public Prosecutions.
43. In the PRESENT case, the matter had not yet reached the stage of the ruling such as it would be ripe to be forwarded to the ODPP. Further, the applicant had already given his side of the story and as such the provisions as to section 387 subsection 3 cannot apply. Under circumstances, the procedure adopted was irregular and unconstitutional as held in Re Phillip Odhiambo above.
44. Therefore I revise and set aside the orders issued remanding him in custody.
45. I note that the trial court had already revised the bond terms after the matter was brought to their attention and even the Applicant was eventually released.
46. He however complains that the inquest court appears to have made up their mind and he may be prejudiced. To avoid any appearance of bias, I direct that the inquest be concluded by another court. The file be placed before the Hon. Mombasa for directions and reallocation to any other magistrate than Hon. Olimo SPM to finalize the Inquest
47. It is so ordered.
Dated, signed and delivered in Open Court/online through MS TEAMS,
this …24th…day of …October…2024
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the presence of: -
Mr Ambwere the Advocate for THE Applicant
Ms Maina for the state
Bebora court assistant
HON. LADY JUSTICE W. K. MICHENI
JUDGE