1. The applicant herein Kassim Mohammed has filed the application herein dated 1/7/2024 seeking for an order for revision of the learned trial magistrate’s orders made on 24/6/2024. The application is expressed to be filed under Article 165(6) & (7) of the Constitution of Kenya and section 362 of the Criminal Procedure Code (Cap. 75) Laws of Kenya (CPC) and section 4(2)(b) of the Victim Protection Act (Cap. 79A) Laws of Kenya.
2. The applicant is dissatisfied with how the Magistrates Court at Shanzu Law Courts Hon. Leah Juma (PM) made a decision on 24/6/2024 in Misc. Criminal Case No. E143/2024, DCI Kilifi South v. Peter Mwangi Githiacu in which the court directed the release of a motor vehicle registration number KMHA 048S to the owner without giving the applicant who says he was the complainant and a victim of the alleged offence in the said case, a hearing. He says that in fact, no party applied for the release of that vehicle.
3. The application prays for an order of revision of the said order by the learned magistrate and for detention of the said vehicle pending completion of investigations which are ongoing and if the said vehicle has been released this court to order the DCI Kilifi South to search, attach and detain it pending completion of the investigations.
4. The grounds in support of the application appear on the face thereof and they are further expounded in the supporting affidavit sworn on 1/7/2024 by Kassim Mohammed, the applicant.
5. The applicant deposes that on 21/6/2024 he made a report of malicious damage to property at Mtwapa police station vide OB No. 33 where his perimeter wall was brought down by persons he describes as goons on the wee hours of the morning of 21/6/2024. He caused the person who was operating the tractor registration number KMHA 048S Caterpillar, which was involved in the demolition of the wall to be arrested and held in detention. He also caused the detention at Mtwapa police station of the said tractor.
6. He deposes further that there were many people he named to be involved in the demolition and they were being traced by the investigating agency and the DPP requested had for time and for the suspect to remain in custody.
7. The court ordered for the arrested person to remain in custody but for the tractor to be released.
8. It is the applicant’s position that no one made an application requesting for the release of the said vehicle and the order did not direct that it be released to any specific person.
9. He deposes further that as the complainant, the applicant was not involved yet his views ought to have been sought before the release of the vehicle which is an exhibit. He had conducted a search at the NTSA and the Company Registry and established the owners of the motor vehicle registration No. KMHA 048S who had never applied to have the motor vehicle released to them.
10. The applicant has annexed various exhibits to his supporting affidavit which are copy of the OB, the court order, certificates of search from NTSA and Business Registration Service and a report of the assessment of the value of the damage caused put at KShs 6,000,000/=.
11. 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.
12. 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.”
13. The Court is not obliged to hear the parties on an application for revision but this court gave the respondent the opportunity to respond. The respondent appeared through the Attorney General who filed a notice of appointment dated 11/7/2024. The court also directed that the DPP to participate in the proceedings as an interested party. In that regard the AG opted to rely on the reply made by the DPP who filed grounds of opposition dated 22/9/2024.
14. The DPP filed grounds of opposition dated 24/9/2024 opposing the application. However, reading the grounds, I find that grounds 2-5 and 9 seem to be addressing a different application. The others are that the trial court imposed conditions for the release of the vehicle to ensure that there was no miscarriage of justice and all the conditions have been complied with. That the applicant has not attempted to demonstrate to the court why the vehicle should continue to be detained at the police station.
15. 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.
16. This court initially directed that the application be disposed of by way of oral submissions. On the date fixed for hearing 11/7/2024, the applicant and the AG who was then the only respondent at the time did not attend court. At the next mention date, 17/7/2024, the court directed that the application proceeds on written submissions. The court gave directions on filing of submissions by the applicant and the DPP. On 31/7/2024, the applicant’s counsel informed the court that they had filed their submissions. However, I have not found such submissions filed either physically in the court file or in the CTS/E-filing system. What is in the CTS though is a list of authorities with two authorities uploaded by counsels for the applicant. These are the cases of Leonard Maina Mwangi v Director of Public Prosecutions, Victims’ Families & Law Society of Kenya [2017] KEHC 9669 (KLR) and Joseph Lendrix Waswa vs Republic [2020]eKLR on the victim’s right to participate in court proceedings.
17. The DPP also did not file submissions in spite of requesting for extension of time and being granted the same. Twice the matter was fixed for ruling and postponed for that reason.
18. As indicated above, given that this is an application for revision, the court need not hear the parties but primarily considers the record. The record of the magistrates court’s proceedings was made available by way of being uploaded on the CTS. It is a brief record.
19. The record shows that on 24/6/2024, the suspect was brought before the magistrates court and the investigating officer IP Joyce Kawira of DCI Mtwapa under oath asked the court for orders to detain the suspect in custody for seven days pending investigations. She also said that the motor vehicle used in the demolitions registration No. KMHA 048S was detained at the police station and he needed time, one day, to take photographs of the same and also conduct a search at the NTSA.
20. The learned prosecution counsel then informed the court that they needed seven days to conduct investigations but that the vehicle could be released once the photos were taken.
21. In response, the suspect said that he had no objection to the application but his prayer was that justice to be done.
22. The court in a brief ruling gave orders that the suspect be detained in custody for seven days. With respect to the vehicle, the learned magistrate said that pursuant to the further application by the prosecution photos of the motor vehicle KMHA 048S be taken together with any other details and the said motor vehicle to be released to the owner by close of business 25/6/2024 and the matter be mentioned on 1/7/2024 for directions. Suspect to be charged or released upon lapse of the 7 days.
23. The matter came up for mention on 1/7/2024 as earlier fixed. The investigating officer IP Joyce Kawira informed the court that investigations were complete and the ODPP had prayed that the suspect be treated as a witness and the suspect be discharged and the file under which he was detained be closed.
24. The learned prosecution counsel then made a prayer to court that the file be closed and the suspect be unconditionally discharged.
25. The learned magistrate thereupon made a ruling directing that pursuant to the application by the investigating officer and the prosecution the miscellaneous file was marked as closed and the suspect discharged.
26. Section 4(2)(b) of the Victims Protection Act under which this application is filed provides that subject to subsection (1), a court, administrative authority or person performing functions under the Act shall ensure that
every victim is, as far as possible, given an opportunity to be heard and to respond before any decision affecting him or her is taken.
27. I note that the present application was made on the same date 1/7/2024, the same day the magistrate’s court made an order for release of the suspect and seven days after the court had made the order the subject of the application herein that the motor vehicle be released the following day after photos and other details of the same had been taken. Considering the magistrate’s proceedings upon which the application for revision is based, it is not true as alleged by the applicant that nobody made an application requesting for the release of the subject motor vehicle. The prosecution counsel had told the court that the motor vehicle could be released once the photographs were taken. The investigating officer had on her part told the court that photographs would be taken within a day. The court going by that information ordered that the motor vehicle be released to the owner by close of business the following day. There is no indication that the applicant herein as the victim of the alleged offence and the complainant who had made a report at the police station raised any objection to the release of the motor vehicle at the time. If he had the court would have had an opportunity to evaluate his objection and together with any response thereto by the prosecution and the investigating officer and make a determination.
28. I note that the proceedings in the magistrate’s court were made at the investigations stage and no formal charges had been brought against the suspect. The court could only act on the material presented before it. The applicant herein did not present his issues or even ask to be heard before the court at the time. The applicant has not explained why he did not file this application immediately after the court made the order that the vehicle could be released the following day. As at the time of filing this application, there was no substratum upon which the application stood as the Miscellaneous application had already been determined leave alone the vehicle having been released a week before.
29. I have considered the proceedings by the magistrate’s court for custodial orders made in the Miscellaneous application, 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 for release of the motor vehicle and neither do I find any irregularity in the proceedings.
30. Consequently, I find that the application has no merit and the same is dismissed
31. Orders accordingly.
Ruling delivered, dated and signed in Open Court and Virtual Platform, Teams this 11th day of November 2024
HON. ANDAYI W. F.
JUDGE
In the presence of: -
N/A for the applicant.
N/A for the respondent
Ngiri for DPP.
Etropia - Court Assistant
2. The applicant is dissatisfied with how the Magistrates Court at Shanzu Law Courts Hon. Leah Juma (PM) made a decision on 24/6/2024 in Misc. Criminal Case No. E143/2024, DCI Kilifi South v. Peter Mwangi Githiacu in which the court directed the release of a motor vehicle registration number KMHA 048S to the owner without giving the applicant who says he was the complainant and a victim of the alleged offence in the said case, a hearing. He says that in fact, no party applied for the release of that vehicle.
3. The application prays for an order of revision of the said order by the learned magistrate and for detention of the said vehicle pending completion of investigations which are ongoing and if the said vehicle has been released this court to order the DCI Kilifi South to search, attach and detain it pending completion of the investigations.
4. The grounds in support of the application appear on the face thereof and they are further expounded in the supporting affidavit sworn on 1/7/2024 by Kassim Mohammed, the applicant.
5. The applicant deposes that on 21/6/2024 he made a report of malicious damage to property at Mtwapa police station vide OB No. 33 where his perimeter wall was brought down by persons he describes as goons on the wee hours of the morning of 21/6/2024. He caused the person who was operating the tractor registration number KMHA 048S Caterpillar, which was involved in the demolition of the wall to be arrested and held in detention. He also caused the detention at Mtwapa police station of the said tractor.
6. He deposes further that there were many people he named to be involved in the demolition and they were being traced by the investigating agency and the DPP requested had for time and for the suspect to remain in custody.
7. The court ordered for the arrested person to remain in custody but for the tractor to be released.
8. It is the applicant’s position that no one made an application requesting for the release of the said vehicle and the order did not direct that it be released to any specific person.
9. He deposes further that as the complainant, the applicant was not involved yet his views ought to have been sought before the release of the vehicle which is an exhibit. He had conducted a search at the NTSA and the Company Registry and established the owners of the motor vehicle registration No. KMHA 048S who had never applied to have the motor vehicle released to them.
10. The applicant has annexed various exhibits to his supporting affidavit which are copy of the OB, the court order, certificates of search from NTSA and Business Registration Service and a report of the assessment of the value of the damage caused put at KShs 6,000,000/=.
11. 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.
12. 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.”
13. The Court is not obliged to hear the parties on an application for revision but this court gave the respondent the opportunity to respond. The respondent appeared through the Attorney General who filed a notice of appointment dated 11/7/2024. The court also directed that the DPP to participate in the proceedings as an interested party. In that regard the AG opted to rely on the reply made by the DPP who filed grounds of opposition dated 22/9/2024.
14. The DPP filed grounds of opposition dated 24/9/2024 opposing the application. However, reading the grounds, I find that grounds 2-5 and 9 seem to be addressing a different application. The others are that the trial court imposed conditions for the release of the vehicle to ensure that there was no miscarriage of justice and all the conditions have been complied with. That the applicant has not attempted to demonstrate to the court why the vehicle should continue to be detained at the police station.
15. 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.
16. This court initially directed that the application be disposed of by way of oral submissions. On the date fixed for hearing 11/7/2024, the applicant and the AG who was then the only respondent at the time did not attend court. At the next mention date, 17/7/2024, the court directed that the application proceeds on written submissions. The court gave directions on filing of submissions by the applicant and the DPP. On 31/7/2024, the applicant’s counsel informed the court that they had filed their submissions. However, I have not found such submissions filed either physically in the court file or in the CTS/E-filing system. What is in the CTS though is a list of authorities with two authorities uploaded by counsels for the applicant. These are the cases of Leonard Maina Mwangi v Director of Public Prosecutions, Victims’ Families & Law Society of Kenya [2017] KEHC 9669 (KLR) and Joseph Lendrix Waswa vs Republic [2020]eKLR on the victim’s right to participate in court proceedings.
17. The DPP also did not file submissions in spite of requesting for extension of time and being granted the same. Twice the matter was fixed for ruling and postponed for that reason.
18. As indicated above, given that this is an application for revision, the court need not hear the parties but primarily considers the record. The record of the magistrates court’s proceedings was made available by way of being uploaded on the CTS. It is a brief record.
19. The record shows that on 24/6/2024, the suspect was brought before the magistrates court and the investigating officer IP Joyce Kawira of DCI Mtwapa under oath asked the court for orders to detain the suspect in custody for seven days pending investigations. She also said that the motor vehicle used in the demolitions registration No. KMHA 048S was detained at the police station and he needed time, one day, to take photographs of the same and also conduct a search at the NTSA.
20. The learned prosecution counsel then informed the court that they needed seven days to conduct investigations but that the vehicle could be released once the photos were taken.
21. In response, the suspect said that he had no objection to the application but his prayer was that justice to be done.
22. The court in a brief ruling gave orders that the suspect be detained in custody for seven days. With respect to the vehicle, the learned magistrate said that pursuant to the further application by the prosecution photos of the motor vehicle KMHA 048S be taken together with any other details and the said motor vehicle to be released to the owner by close of business 25/6/2024 and the matter be mentioned on 1/7/2024 for directions. Suspect to be charged or released upon lapse of the 7 days.
23. The matter came up for mention on 1/7/2024 as earlier fixed. The investigating officer IP Joyce Kawira informed the court that investigations were complete and the ODPP had prayed that the suspect be treated as a witness and the suspect be discharged and the file under which he was detained be closed.
24. The learned prosecution counsel then made a prayer to court that the file be closed and the suspect be unconditionally discharged.
25. The learned magistrate thereupon made a ruling directing that pursuant to the application by the investigating officer and the prosecution the miscellaneous file was marked as closed and the suspect discharged.
26. Section 4(2)(b) of the Victims Protection Act under which this application is filed provides that subject to subsection (1), a court, administrative authority or person performing functions under the Act shall ensure that
every victim is, as far as possible, given an opportunity to be heard and to respond before any decision affecting him or her is taken.
27. I note that the present application was made on the same date 1/7/2024, the same day the magistrate’s court made an order for release of the suspect and seven days after the court had made the order the subject of the application herein that the motor vehicle be released the following day after photos and other details of the same had been taken. Considering the magistrate’s proceedings upon which the application for revision is based, it is not true as alleged by the applicant that nobody made an application requesting for the release of the subject motor vehicle. The prosecution counsel had told the court that the motor vehicle could be released once the photographs were taken. The investigating officer had on her part told the court that photographs would be taken within a day. The court going by that information ordered that the motor vehicle be released to the owner by close of business the following day. There is no indication that the applicant herein as the victim of the alleged offence and the complainant who had made a report at the police station raised any objection to the release of the motor vehicle at the time. If he had the court would have had an opportunity to evaluate his objection and together with any response thereto by the prosecution and the investigating officer and make a determination.
28. I note that the proceedings in the magistrate’s court were made at the investigations stage and no formal charges had been brought against the suspect. The court could only act on the material presented before it. The applicant herein did not present his issues or even ask to be heard before the court at the time. The applicant has not explained why he did not file this application immediately after the court made the order that the vehicle could be released the following day. As at the time of filing this application, there was no substratum upon which the application stood as the Miscellaneous application had already been determined leave alone the vehicle having been released a week before.
29. I have considered the proceedings by the magistrate’s court for custodial orders made in the Miscellaneous application, 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 for release of the motor vehicle and neither do I find any irregularity in the proceedings.
30. Consequently, I find that the application has no merit and the same is dismissed
31. Orders accordingly.
Ruling delivered, dated and signed in Open Court and Virtual Platform, Teams this 11th day of November 2024
HON. ANDAYI W. F.
JUDGE
In the presence of: -
N/A for the applicant.
N/A for the respondent
Ngiri for DPP.
Etropia - Court Assistant