The applicant Fgee Terchnologies presented this application by way of a Notice of motion dated 14 th March 2022. The application was expressed to be brought under (Pursuant to Article 165 (6) & (7) of the Constitution of Kenya, 2010 and Sections 362, 364 and 367 of the Criminal Procedure Code, CAP 75 Laws of Kenya and all other enabling provisions of law)
The applicant sought the following orders:
THAT the Honorable Court be pleased to certify the application as urgent and heard ex-parte in the first instance and on priority basis.
THAT the Honorable Court be pleased to call for and examine the record of proceedings in MCCR/1031/2019 Republic vs James Aluoch Odinga and 3 others, for the purpose of satisfying itself and pronouncing on the correctness, legality and propriety of the orders issued on 29th October 2021 by Hon. Theressah B. Nyangena S.P.M.
THAT the Honorable Court be pleased to review, vary, reverse and set aside the order allowing the case to commence de novo.
THAT pending the hearing and determination of this application for revision, the Honorable court be pleased to stay proceedings in MCCR/1031/2019 Republic vs James Aluoch Odinga.
THAT the Honorable Court be pleased to make any other order that it deems fit in the interest of justice.
In support of the application the application stated that the matter had been pending for a long time and that the prosecution had already called 3 witnesses including the complainant in the year 2020.
According to the applicant the delay in the matter was occasioned by the accused persons in the case who had severally caused the adjournment of the matter without justification.
The applicant was aggrieved by a ruling made by the Honorable T.B, Nyangena requiring the matter to start de novo following an application by counsel for the 2 nd and 3 rd respondents.
The applicant took the view that if the matter were start de novo it would greatly prejudice them. The state filed a Notice of preliminary objection 8 th May 2023 as well as grounds of opposition dated 28 th July 2022.
The gist of the 1 st Respondent’s response was that the applicant had no locus in law to file the instant application and that by filing the application the applicant was attempting to usurp the functions of the DPP contrary to the express provision of Article 157 (6) of the Constitution.
The 2 nd and 3 rd respondents did not file any response to the application although the applicant filed an affidavit of service sworn by one Lorrine Khami who deposed that he had served all the respondents by way of electronic means.
It is regrettable that an application for revision that sought to obviate a delay of the trial in the lower court has been pending since the 19 th of July 2022 when the affidavit of service was filed.
Ms Maina counsel for the applicant on 29 th May 2025 informed this court that all the respondents were served with the application and submissions on 25 th September 2024 a fact confirmed by Ms Ogega for the 1 st respondent.
At the hearing, Ms Ogega Prosecution Counsel conceded to the application thereby abandoning the position earlier on taken by the 1 st respondent
This court therefore is left to consider whether or not there was merit in the complaint by the applicant. It is important to settle the first question of locus standi of the applicant to initiate this application.
Firstly, under Article 50 (7) of the Constitution a complainant has a right to communicate with the court on any matter that affects their interests in the course of trial.
Further, under Section 4 (2) (b) of the Victims Protection Act No. 17 of 2014 every victim of a crime is to be given an opportunity to be heard and to respond before any decision him or her is taken by a court, administrative authority or any person performing a function that affects the victim.
The question that arises therefore is, what is the fate of a victim who is dissatisfied with a ruling by a magistrate that seeks to delay the hearing of a matter affecting him and the DPP does not move to challenge such ruling?
It is important to contextualize this application by reviewing the proceedings that took place in the lower court before an order for a de novo hearing was made.
On the 29 th October 2021, Mr. Ayieko advocate for the accused persons applied to have the matter start de novo and the prosecution opposed the application indicating that they would be willing to recall the witnesses for purposes of cross-examination by counsel for 2 nd and 3 rd respondents. It is important to note that the victims (the applicant) was represented by counsel Maingi who unfortunately does not appear to have been heard by the court on that application for a de novo hearing.
That fact is important when one considers the time taken in hearing this matter since the taking of plea on 19 th June 2019. The learned honorable magistrate made the order for a hearing de novo without considering that it had already taken over 2 years since the taking of plea and that any further delay would be prejudicial to the victim.
The Director of Public Prosecution having objected to the application did not move to the High court to immediately challenge the decision by the learned trial magistrate after the court allowed the request for the hearing to commence de novo.
However, on 15 th December 2021 counsel for the complainant sought a review of the order by the trial magistrate but unfortunately there seems not to have been any ruling on the request for the review of that order.
The prosecution indicated to the court that they were having challenges in getting the complainant since the complainant works in Dubai. The prosecutions however indicated that the other witnesses were available but their evidence would have to be considered alongside that of the complainant thus it would be impractical to restart the hearing.
It would appear the failure by the trial magistrate to consider the request for review of the order prompted the filing of the instant application by the applicant.
The victim of a crime cannot be driven away from the seat of justice simply because the Director of Public prosecution has elected not to file any revision or appeal against a decision that affects the prosecution of a matter. The victim under Article 48 has the right to access justice and that right should not be curtailed through technicalities.
The victims of a crime are no longer spectators in our criminal justice system. The victims cannot be said to be merely witnesses in criminal trials. The role of victims has a constitutional underpinning thus the courts cannot ignore their concerns anymore without offending the law.
In cases where victims observe an obvious illegality being committed against them, they cannot simply fold their arms and walk away helplessly. The have a right to move the court for appropriate redress. Where the Director of Public Prosecutions fails to promptly move the High Court or any other court for that matter, the victim can move the court and in such a case the victim must be heard.
The victim’s voice is secured under Section 4 of the Victim’s Protection Act. The victim cannot be silenced through technical objections as was the initial position taken by the Director of Public Prosecution in filing the preliminary objection to the Notice of Motion.
It did not come as a surprise to this court when at the hearing of this revision, Ms Ogega prosecution counsel departed from the position taken in their earlier filings. Thanks to counsel for standing up for the cause of justice.
In Joseph Lendrickx Waswa Vs Republic (2020) eKLR the Supreme court considered the position of a victim in a criminal trial and stated as follows:
“ 76. Additionally, a victim cannot and does not wear the hat of a secondary prosecutor. When victims present their views and concerns in accord with section 9(2) (a) of the VPA, victims are assisting the trial Judge to obtain a clear pieture of what happened (to them) and how they suffered, which the Judge may decide to take into account. Victim participation should meaningfully contribute to the justice process. It must be noted, however, that this does not mean that the Court's judgment will follow the wishes of the victim. The trial Judge will, of course, take into account the law, facts, all the different interests, and concerns, including the rights of the defence and the interests of a fair trial to arrive at a sagacious decision.
77. Conscious that this is a novel area of law for our criminal justice system and recognizing our mandate, under Section 3 of the Supreme Court Act as the Court of final Judicial Authority, we are of the view that the following guiding principles will assist the trial Court when it is considering an application by a victim or his legal representative to participate in a trial and the manner and extent of the participation:
a. The applicant must be a direct victim or such victim's legal representative in the case being tried by the Court;
b. The Court should examine each case according to its special nature to determine if participation is appropriate, at the stage participation is applied for;
c. The trial Judge must be satisfied that granting the victim participatory rights shall not occasion an undue delay in the proceedings;
d. The victim's presentation should be strictly limited to "the views and concerns" of the victim in the matter granted participation;
e. Victim participation must not be prejudicial to or inconsistent with the rights of the accused;
f. The trial Judge may allow the victim or his legal representative to pose questions to a witness or expert who is giving evidence before the Court that have not been posed by the prosecutor;
g. The Judge has control over the right to ask questions and should ensure that neither the victim nor the accused are not subjected to unsuitable treatment or questions that are irrelevant to the trial;
h. The trial Court should ensure that the victim or the victim's legal representative understands that prosecutorial duties remain solely with the DPP;
i. While the victim's views and concerns may be persuasive; and no doubt in the public interest that they are acknowledged, these views and concerns are not to be equated with the public interest;
j. The Court may hold proceedings in camera where necessary to protect the privacy of the victim;
k. While the Court has a duty to consider the victim's views and concerns, the Court has no obligation to follow the victim's preference of punishment.” (emphasis mine).
The action of the victim in bringing the instant application is in line with the role of a victim in advancing the course of justice. The victim is not acting contrary to public policy and the constitutional authority of the Director of Public Prosecution.
It is abundantly clear to this court that all that the applicant seeks to do is to remedy a situation that if left unattended to would result into an unmitigated delay in the hearing of the criminal matter.
This court therefore finds that the order by the learned trial magistrate directing that the matter starts de novo was made irregularly and is hereby set aside. The court did not consider the age of the matter and the prejudice that the complainant would suffer. The court also did not give reasons why it was necessary in its view to have the matter commence afresh.
It is the finding of this court that the fair trial rights of the 2 nd and 3 rd respondents can safely be secured through a recall of the prosecution witnesses who had testified for cross-examination by the defence attorney and the prosecution is advised to utilize the court’s enhanced practice of virtual courts to avail the witnesses for cross- examination virtually from wherever they may be within the globe.
In this court’s view, the honorable magistrate ought to have directed that the matter proceeds from where a predecessor left and allow the cross-examination of the witnesses. That would have been the most suitable order that would meet the ends of justice for all parties. The order by the trial court was improper in the circumstances and incorrect. The same is therefore susceptible to review by this court.
The upshot of the above is that the revision application is allowed.
The lower court file is to be returned to the trial court for purposes of proceedings being conducted from where Honorable S.N Muchungi SRM had left.
It is so ordered.
The applicant sought the following orders:
THAT the Honorable Court be pleased to certify the application as urgent and heard ex-parte in the first instance and on priority basis.
THAT the Honorable Court be pleased to call for and examine the record of proceedings in MCCR/1031/2019 Republic vs James Aluoch Odinga and 3 others, for the purpose of satisfying itself and pronouncing on the correctness, legality and propriety of the orders issued on 29th October 2021 by Hon. Theressah B. Nyangena S.P.M.
THAT the Honorable Court be pleased to review, vary, reverse and set aside the order allowing the case to commence de novo.
THAT pending the hearing and determination of this application for revision, the Honorable court be pleased to stay proceedings in MCCR/1031/2019 Republic vs James Aluoch Odinga.
THAT the Honorable Court be pleased to make any other order that it deems fit in the interest of justice.
In support of the application the application stated that the matter had been pending for a long time and that the prosecution had already called 3 witnesses including the complainant in the year 2020.
According to the applicant the delay in the matter was occasioned by the accused persons in the case who had severally caused the adjournment of the matter without justification.
The applicant was aggrieved by a ruling made by the Honorable T.B, Nyangena requiring the matter to start de novo following an application by counsel for the 2 nd and 3 rd respondents.
The applicant took the view that if the matter were start de novo it would greatly prejudice them. The state filed a Notice of preliminary objection 8 th May 2023 as well as grounds of opposition dated 28 th July 2022.
The gist of the 1 st Respondent’s response was that the applicant had no locus in law to file the instant application and that by filing the application the applicant was attempting to usurp the functions of the DPP contrary to the express provision of Article 157 (6) of the Constitution.
The 2 nd and 3 rd respondents did not file any response to the application although the applicant filed an affidavit of service sworn by one Lorrine Khami who deposed that he had served all the respondents by way of electronic means.
It is regrettable that an application for revision that sought to obviate a delay of the trial in the lower court has been pending since the 19 th of July 2022 when the affidavit of service was filed.
Ms Maina counsel for the applicant on 29 th May 2025 informed this court that all the respondents were served with the application and submissions on 25 th September 2024 a fact confirmed by Ms Ogega for the 1 st respondent.
At the hearing, Ms Ogega Prosecution Counsel conceded to the application thereby abandoning the position earlier on taken by the 1 st respondent
This court therefore is left to consider whether or not there was merit in the complaint by the applicant. It is important to settle the first question of locus standi of the applicant to initiate this application.
Firstly, under Article 50 (7) of the Constitution a complainant has a right to communicate with the court on any matter that affects their interests in the course of trial.
Further, under Section 4 (2) (b) of the Victims Protection Act No. 17 of 2014 every victim of a crime is to be given an opportunity to be heard and to respond before any decision him or her is taken by a court, administrative authority or any person performing a function that affects the victim.
The question that arises therefore is, what is the fate of a victim who is dissatisfied with a ruling by a magistrate that seeks to delay the hearing of a matter affecting him and the DPP does not move to challenge such ruling?
It is important to contextualize this application by reviewing the proceedings that took place in the lower court before an order for a de novo hearing was made.
On the 29 th October 2021, Mr. Ayieko advocate for the accused persons applied to have the matter start de novo and the prosecution opposed the application indicating that they would be willing to recall the witnesses for purposes of cross-examination by counsel for 2 nd and 3 rd respondents. It is important to note that the victims (the applicant) was represented by counsel Maingi who unfortunately does not appear to have been heard by the court on that application for a de novo hearing.
That fact is important when one considers the time taken in hearing this matter since the taking of plea on 19 th June 2019. The learned honorable magistrate made the order for a hearing de novo without considering that it had already taken over 2 years since the taking of plea and that any further delay would be prejudicial to the victim.
The Director of Public Prosecution having objected to the application did not move to the High court to immediately challenge the decision by the learned trial magistrate after the court allowed the request for the hearing to commence de novo.
However, on 15 th December 2021 counsel for the complainant sought a review of the order by the trial magistrate but unfortunately there seems not to have been any ruling on the request for the review of that order.
The prosecution indicated to the court that they were having challenges in getting the complainant since the complainant works in Dubai. The prosecutions however indicated that the other witnesses were available but their evidence would have to be considered alongside that of the complainant thus it would be impractical to restart the hearing.
It would appear the failure by the trial magistrate to consider the request for review of the order prompted the filing of the instant application by the applicant.
The victim of a crime cannot be driven away from the seat of justice simply because the Director of Public prosecution has elected not to file any revision or appeal against a decision that affects the prosecution of a matter. The victim under Article 48 has the right to access justice and that right should not be curtailed through technicalities.
The victims of a crime are no longer spectators in our criminal justice system. The victims cannot be said to be merely witnesses in criminal trials. The role of victims has a constitutional underpinning thus the courts cannot ignore their concerns anymore without offending the law.
In cases where victims observe an obvious illegality being committed against them, they cannot simply fold their arms and walk away helplessly. The have a right to move the court for appropriate redress. Where the Director of Public Prosecutions fails to promptly move the High Court or any other court for that matter, the victim can move the court and in such a case the victim must be heard.
The victim’s voice is secured under Section 4 of the Victim’s Protection Act. The victim cannot be silenced through technical objections as was the initial position taken by the Director of Public Prosecution in filing the preliminary objection to the Notice of Motion.
It did not come as a surprise to this court when at the hearing of this revision, Ms Ogega prosecution counsel departed from the position taken in their earlier filings. Thanks to counsel for standing up for the cause of justice.
In Joseph Lendrickx Waswa Vs Republic (2020) eKLR the Supreme court considered the position of a victim in a criminal trial and stated as follows:
“ 76. Additionally, a victim cannot and does not wear the hat of a secondary prosecutor. When victims present their views and concerns in accord with section 9(2) (a) of the VPA, victims are assisting the trial Judge to obtain a clear pieture of what happened (to them) and how they suffered, which the Judge may decide to take into account. Victim participation should meaningfully contribute to the justice process. It must be noted, however, that this does not mean that the Court's judgment will follow the wishes of the victim. The trial Judge will, of course, take into account the law, facts, all the different interests, and concerns, including the rights of the defence and the interests of a fair trial to arrive at a sagacious decision.
77. Conscious that this is a novel area of law for our criminal justice system and recognizing our mandate, under Section 3 of the Supreme Court Act as the Court of final Judicial Authority, we are of the view that the following guiding principles will assist the trial Court when it is considering an application by a victim or his legal representative to participate in a trial and the manner and extent of the participation:
a. The applicant must be a direct victim or such victim's legal representative in the case being tried by the Court;
b. The Court should examine each case according to its special nature to determine if participation is appropriate, at the stage participation is applied for;
c. The trial Judge must be satisfied that granting the victim participatory rights shall not occasion an undue delay in the proceedings;
d. The victim's presentation should be strictly limited to "the views and concerns" of the victim in the matter granted participation;
e. Victim participation must not be prejudicial to or inconsistent with the rights of the accused;
f. The trial Judge may allow the victim or his legal representative to pose questions to a witness or expert who is giving evidence before the Court that have not been posed by the prosecutor;
g. The Judge has control over the right to ask questions and should ensure that neither the victim nor the accused are not subjected to unsuitable treatment or questions that are irrelevant to the trial;
h. The trial Court should ensure that the victim or the victim's legal representative understands that prosecutorial duties remain solely with the DPP;
i. While the victim's views and concerns may be persuasive; and no doubt in the public interest that they are acknowledged, these views and concerns are not to be equated with the public interest;
j. The Court may hold proceedings in camera where necessary to protect the privacy of the victim;
k. While the Court has a duty to consider the victim's views and concerns, the Court has no obligation to follow the victim's preference of punishment.” (emphasis mine).
The action of the victim in bringing the instant application is in line with the role of a victim in advancing the course of justice. The victim is not acting contrary to public policy and the constitutional authority of the Director of Public Prosecution.
It is abundantly clear to this court that all that the applicant seeks to do is to remedy a situation that if left unattended to would result into an unmitigated delay in the hearing of the criminal matter.
This court therefore finds that the order by the learned trial magistrate directing that the matter starts de novo was made irregularly and is hereby set aside. The court did not consider the age of the matter and the prejudice that the complainant would suffer. The court also did not give reasons why it was necessary in its view to have the matter commence afresh.
It is the finding of this court that the fair trial rights of the 2 nd and 3 rd respondents can safely be secured through a recall of the prosecution witnesses who had testified for cross-examination by the defence attorney and the prosecution is advised to utilize the court’s enhanced practice of virtual courts to avail the witnesses for cross- examination virtually from wherever they may be within the globe.
In this court’s view, the honorable magistrate ought to have directed that the matter proceeds from where a predecessor left and allow the cross-examination of the witnesses. That would have been the most suitable order that would meet the ends of justice for all parties. The order by the trial court was improper in the circumstances and incorrect. The same is therefore susceptible to review by this court.
The upshot of the above is that the revision application is allowed.
The lower court file is to be returned to the trial court for purposes of proceedings being conducted from where Honorable S.N Muchungi SRM had left.
It is so ordered.