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JudgmentFEIROOZ FAISWAL VS The Republic11 min read

FEIROOZ FAISWAL VS The Republic

High Court at Mombasa High Court · · Andayi W.F.

  1. Feirooz Faiswal has filed the application herein dated 22/4/2024 seeking for an order of revision of the learned trial magistrate’s orders made on 17/4/2024. The orders were in terms that:
    1. the prosecution to avail the author of the two reports or at least give reasons to account for his non-attendance.
    2. PW 9 be stood down. Prosecution accorded an opportunity to file the relevant documents to demonstrate his qualifications and his links to the said audit firm.
  2. It is the applicant’s contention that in making those orders the trial court made glaring errors or mistakes on the face of the record as it acted ultra vires by venturing into the arena of litigation in favour of the prosecution. She further avers that the ruling was extremely averse to the applicant’s defence.
  3. The application is expressed to be filed under Article 165(3) of the Constitution of Kenya and sections 362 and 364 of the Criminal Procedure Code (Cap. 75) Laws of Kenya (CPC). a.
  4. The applicant therefore prays that the order by the learned magistrate be revised, varied and/or set aside and direct that the evidence of PW 9 be struck out or the court to issue any other orders that it may deem fit.
  5. The grounds in support of the application are further expounded in the supporting affidavit sworn on 23/4/2024 by Feirooz Faiswal the applicant.
  6. The applicant deposes it was during cross-examination that it became apparent that PW 9 was not the author of an audit report that he was producing and he had not informed the report that he was giving evidence on behalf of the author and why the said author was not in court to produce the document. Her advocates then raised an objection leading to the ruling by the learned trial magistrate as above reproduced.
  7. She deposes further that the court in so ruling the trial court made an apparent mistake by disregarding sections 70, 71 and 72 of the Evidence Act (Cap. 80) Laws of Kenya.
  8. According to the applicant, the learned trial magistrate made the orders suo moto directing the introduction of additional evidence by the prosecution to aid their case without an application being filed and or leave being sought and when during examination-in-chief the prosecution had indicated to court that they did not intent to produce the same. Consequently, that there is no avenue for PW 9 to adduce and/or produce additional documents.
  9. The application is opposed by the Respondent through a replying affidavit sworn on 11/7/2024 by PC Francis Karisa a police officer. Many of the issues he has deposed to are issues of law and I need not rehash them as they are considered herein save to point out that the reference to section 77 of the Evidence Act as being applicable to the case at hand is misplaced as the trial court is not dealing with “a report under the hand of a Government analyst, medical practitioner or of any ballistics expert, document examiner or geologist upon any person, matter or thing submitted to him for examination or analysis” as is provided for under that section. Others are on what in fact the trial court in its ruling directed that ought to be done and this is not the correct forum to consider the same. He deposes that in fact, from the prosecution counsel attending the trial court, the witness laid a basis as to why the maker of the audit report could not attend court to testify.
  10. The application was disposed of by way of written submissions filed by learned counsels for both parties which I consider and evaluate in the analysis below.
  11. Learned counsel for the applicant made brief submissions based on Article 50(2)(j) of the Constitution. The submissions proceeded are on the basis of production of new evidence by the prosecution which had not been supplied to the defence in advance as required under Article 50(2)(j) of the Constitution. Learned counsel for the applicant has repeatedly cited that article of the Constitution in his submissions. However, Article 50(2)(j) of the Constitution was never cited as the one under which the application was based. It was also not the one under which the objection leading to the ruling by the learned trial magistrate was based. The learned magistrates laid out the issues that had been raised by the applicant’s learned counsel in objection as follows:
    1. that the witness in the witness stand is not the one who prepared the reports.
    2. that it has not been demonstrated that he is a partner in the said firm of auditors.
    3. that it has not been demonstrated that he indeed was an expert in the field.
  12. There was no issue of the prosecution introducing evidence that had not been made available to the defence prior and that was not considered by the trial court so as to cite non-compliance with Article 50(2)(j) of the Constitution which provides that every accused person has the right to a fair trial, which includes the right to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence.
  13. It would appear that having read the applicant’s submissions, learned counsel for the respondent felt compelled to respond thereto. But he also made submissions on the correct appreciation of the application based on section 33 of the Evidence Act.
  14. The issue for determination by this court is the correctness, legality or propriety, of the decision of the learned trial magistrate of 24/6/2024 and also the regularity of the proceedings had before the trial court.
  15. The application is made pursuant to this court’s exercise of its supervisory power over subordinate courts as provided for under Article 165(6) and (7) of the constitution which provide as follows:

(6). The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.

(7). For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.

  1. In furtherance of the constitutional provision, section 362 CPC enables the High Court to:

“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 such subordinate court.”

  1. The Respondent has made extensive submissions on the propriety of the applicant challenging the decision of the trial court by way of revision rather than by way of appeal. He has cited the case of DPP v. David Mwiraria & 6 others (which citation is incomplete and with this limited information, the same is not returning any relevant result on the Kenyalaw website).
  2. Suffice it to say that the revisionary jurisdiction, of the High Court under section 362 CPC is different from the appellate jurisdiction under section 79B CPC. Under the revisionary jurisdiction what the court is called upon is to satisfy itself that a finding, order or sentence made by the subordinate court is correct, legal and proper and that the proceedings are or were regular.
  3. The applicant has mounted her challenge of the production of the audit report by PW 9 based on sections 70, 71 and 72 of the Evidence Act. Sections 71 and 72 of the Evidence Act deal with proof of attestation of documents and so are not relevant to this application. 
  4. The section I find most relevant of these, as per the applicant’s contention, would be section 70 which provides that:

“if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person’s handwriting must be proved to be in his handwriting.”

  1. In relation to the present case, this means that the prosecution needs to prove the authorship of the audit report. The applicant’s contention is not that she was not supplied with the audit report prior but that prior to cross-examination, the witness had proceeded as if he was the author when in fact he was not and that at some point the prosecution had informed the defence that they would not be relying on the report. If this contention is correct and the issue was left at that, and probably taken up by learned counsel in submissions, it means that the document would have been found to be inadmissible and its contents would not be used in the determination of the case.
  2. However, the applicant having raised an objection in the course of the proceedings it was brought to the attention of the court before the witness was discharged. The court was then bound to and did make a decision on the objection. It had to decide on how to procced with that witness and the production of the document in evidence. This court cannot purport to micro-manage the trial court by directing it to reject that evidence.
  3. Section 33 of the Evidence Act provides for instances when documents can be produced by persons who did not make them follows: -

“Statements, written or oral or electronically recorded, of admissible facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence or whose attendance cannot be procured, or whose attendance cannot be procured without an amount of delay or expense which in the circumstances of the case appears to the court unreasonable, are themselves admissible in the following cases –“

  1. …

(b) Made in the course of business

“When the statement was made by such person in the ordinary course of business, and in particular when it consists of an entry or memorandum made by him in books or records kept in the ordinary course of business or in the discharge of professional duty; or of an acknowledgement written or signed by him of the receipt of money, goods, securities or property of any kind, or of a document used in commerce, written or signed by him, or of the date of a letter or other document usually dated, written or signed by him.”

  1. Whereas it is desirable that the maker of a document attends court to produce the same where his attendance cannot be procured without unreasonable delay and expense, his attendance will be dispensed with as provided for under section 33 of the Evidence Act.
  2. It is true that for Section 33 of the Evidence Act to apply, a basis must be laid to satisfy the court as to the reason for the absence of the maker of the document and secondly the court must find out from the accused person if she has any objection to the production of the document by a person other than the maker. The accused person will then be required to give reasons for the objection if any.
  3. It is the applicant’s contention that in the instant case, the prosecution did not make any request to the court to have PW 9 produce the audit report. Seemingly, the court also overlooked the known procedure and PW 9 unhindered proceeded to produce the audit report not meant to be produced by him.
  4. Although the learned trial magistrate did not explicitly state so when she rendered her ruling, I find that the court had power to seek to obtain proper evidence as provided for under Section 173 Evidence Act that:

“(1) A judge or magistrate may, in order to discover or to obtain proper evidence, ask any question he pleases, in any form, at any time, of any witness, or of the parties about any fact whether or not it is otherwise admissible; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to object to any such question or order, nor, without leave of the court, to cross-examine the witness upon any answer given in reply to any such question..”

  1. In my understanding, this section is intended to enable the court to obtain the truth. So, in the present case, if in the course of the witness giving evidence the court discovered that some procedural issue had not been complied with, I do not find any impropriety in the court seeking to have it rectified in order to obtain proper evidence. Assuming for instance that as claimed by the applicant, (which has been denied by the respondent and I did not get the full record to appreciate what really transpired) PW 9 had failed to inform the court that he was not the author of the document and his relationship with the author, and that the defense had not raised objection at that time, the court being aware that this was a requirement, would still have been entitled to put to him those questions and required him to produce documents or evidence to support his production of the audit report. Under section 173 of the Evidence Act, the applicant as defendant in that case would not be entitled to object save that the court’s decision would be required to be based only upon facts which were otherwise admissible and which had been duly proved. It does not follow that allowing the prosecution the opportunity to state PW 9’s relationship with the author of the audit report and why he could not attend court meant that the report would be considered as the truth. The court still has to consider its veracity and weight in proving the case.
  2. I have considered the proceedings by the magistrate’s court the subject of the revision proceedings herein and I am unable to find any incorrectness, illegality or impropriety in the manner the learned magistrate handled the matter with respect to the order complained of and neither do I find any irregularity in the proceedings.
  3. Consequently, I find that the application has no merit and the same is dismissed. The case should proceed as directed by the learned trial magistrate.
  4. Orders accordingly. 

Ruling delivered, dated and signed in Open Court and Virtual Platform, Teams this 12th day of November 2024

In the presence of: -

Amadi for the applicant.

Ngiri for the respondent.

Maithya for the complainant.

Etropia - Court Assistant

    FEIROOZ FAISWAL VS The Republic FEIROOZ FAISWAL VS The Republic