Lilian Wanjiru Ndegwa VS The Republic

1. The application before the court was instituted by way of a letter dated 12th October 2022 by Mr. Paul Ng’arua, Advocate. In the letter Counsel seeks revision of the decision of the trial Magistrate in Nairobi Chief Magistrate’s Court ( ACC) Criminal Case No. 32 of 2018, Republic v Evans Odhiambo Kidero & 10 Others. Counsel has urged this court to call for the record of the trial court for purposes of satisfying itself as to the propriety, legality and correctness of the trial court’s ruling of 25th July 2022 in which the defence’s objection to the production of certain documents by the prosecution was overruled.
2. It is the Defence contention that admitting the said documents as evidence to enable the court to consider their veracity is unsettling and bad in law. The Applicant therefore made the following prayers
a. Spent
b. The High Court do hereby calls for the record and proceedings of the Trial Court in Nairobi Chief Magistrate’s Court ( ACC) Criminal Case No. 32 of 2018, Republic v Evans Odhiambo Kidero & 10 Others for the purpose of making the orders sought and any other order or giving any direction that is appropriate to ensure the fair administration of justice;
c. That the Court be pleased to Review Vary and/ alter the ruling of 25th July 2022, the Hon. Magistrate Ogoti admittingMFIs23(a-d),27,28,29(a),30,31,32,33,34,35,36,44,46(a),47,54(a),&(b),61,67(ii), 73(a),76(a),77,78,104,105(1), 107,108,109,109(1), 109(ii), 110,111,113,114,115,120,121 and 123 as evidence.
d. THAT the Hon. Court be pleased to stay proceedings in ACEC 32 of 2018 for the purpose of satisfying itself of the correctness, legality and propriety of the Ruling issued by the Honorable Ogoti on 25th July 2022
e. THAT the Court be pleased to make any other orders it may deem fit to grant.
3. It is the defence submission that in admitting the said documents as exhibits the Court failed to appreciate the process of their acquisition and hence the requirements of the Evidence Act were glossed over on 1) the production of certified copied. (sic) 2.) the process of determining the evidentiary value of the documents before the same are admitted as evidence 3) the role of the Court as an umpire in the justice system, 4) the proper form and contents of search warrants 5) the veracity of the documents supplied to the defense being different from those in the custody of the prosecution.
4. The applicants contend that the trial court’s decision is unconstitutional and in violation of article 50 of the Constitution touching on the Applicant’s right to a fair trial.
5. The Application was opposed by the respondent Grounds of Opposition dated 24th November 2022 and  the Replying Affidavit sworn by Ms. Jennifer Kaniu on behalf of ODPP on 3rd November, 2022.  In the Grounds of Opposition the Respondent contends that the application is not justiciable as it is Res Judicata and the issues therein are moot. Further that the Petition is frivolous and therefore an abuse of the legal process. Finally, that it is in the interest of justice and the public interest that the orders sought in the instant petition be declined.
6. In the Replying Affidavit sworn by Ms. Kaniu, she set out in detail the reasons upon which the application was opposed, pointing out that at the time the case was stayed the prosecution was leading its last witness, Mulki Umar PW18. She avers that the evidence identified as MFI1 to MF1124 was duly disclosed to the defendant and that the defence (including her co- accused) have raised multiple objections to the identification and or production by the prosecution of a number of the said exhibits by way of interlocutory applicants and that each of these interlocutory applications has been dismissed and parties referred back to the Trial Court.
7. It is the prosecution contention vide paragraphs 11 and 12 of the Affidavit that the Learned Trial Magistrate prior to giving the ruling heard oral arguments from both parties and considered the objections raised and analysed the issues raised and identified which evidence was admissible and that which was disallowed.
8. This application was canvassed by the parties through written submissions.
SUBMISSIONS
Applicants’ Submissions
9. The applicants filed their submissions dated 11th November 2022 on 20th December 2022. The Application for review is grounded Under Article (2)(d) , Article 165 (6) &(7) of the Constitution of Kenya 2010 and Section 362 & 364 of the Criminal Procedure Code, Cap 75 Laws of Kenya.
10. The Applicants submit that the Hon Magistrate erred in admitting MFI 115 and 116 when there were discrepancies in the dates between what the prosecution supplied to the defence and what the prosecution sought to produce. Further the Applicant contends that the production of the said documents was in contravention of Section 106 B of the Evidence and the mandatory requirement of a certificate.  The applicants placed reliance on the cases of David Makari Watila vs Republic [2020] eKLR, Peter Ngethe Ngari T/A Pnn Funeral Services Vs Standard Group Limited Plc & Another [2020[ eKLR and  MNN VS ENK (2017) eKLR which explained  the admissibility of electronic documents and the  importance of producing a certificate under Section 106 B of the Evidence Act.
11. The Applicants contend that the trial court’s ruling caused them great injustice and therefore pray that the court reviews and sets aside the orders by the trial court and direct that the documents be expunged for failure to meet the mandatory requirements of the Evidence Act. The Applicants relied on the cases of Republic vs Mark Lloyd Stevenson (2016) eKLR, Republic vs Barisa Wayu Matugunda [2011] eKLR, Benson Mugatsia vs Cornel Rasanga Amater Election Petition 2 of 2012.  All of which reiterate the mandatory effect of Section 160 B of the Evidence Act.
12. The Applicants further submit that the Prosecution cannot find relief under Article 159(2) of the Constitution of Kenya as the Certificate is not a procedural requirement only but is a necessary step for a fair trial. The Applicants also relied on the case of Yagnesh Mohalal & 5 Others 2022 eKLR, in which the High court upheld the trial court decision to disallow the production of documents.
13. The Applicants also challenge the impugned ruling on the ground that the Hon. Magistrate failed to ensure that a foundation was laid before documents were produced. It is on this ground that the Applicant challenges the admission of MFIs 23(a-d),27,28,29(a), 30,31,32,33,34,35,36,44,46(a),47,54,54(a)&(b),61,67(ii),73(a),76,76(a),77,78,104,105(1),107<108>14. The Applicant submits that having determined that the admissibility of the evidence is tainted with irregularity and illegality, the court should proceed to expunge it from the record. Reference is made to the case of Musharaf Abdalla v Republic High Court (Nairobi) Criminal Revision No.115 of 2016 eKLR
15.  The Applicant also raised issue with the fact that the Court in its impugned ruling admitted illegally obtained evidence. See paragraphs 7 and 10 of the Applicants submissions. On the authority of Philomena Mbete Mwilu v Director of Public prosecution & 4 Others High Court (Nairobi) Petition No. 295 of 2018 [2019] eKLR the Applicant argues this Court should bar the entire prosecution of the Petitioner.
16. Finally the Applicant argues that the Court admitted evidence contrary to Sections 66 and 68 ( 1) of the Evidence Act and that these documents should therefore be expunged from the record.   The Applicant relied on the case of In Cannon Assurance (K) Ltd vs Ali Hamadi Mwagude & Others (2017) eKLR
Respondent’s Submissions
17. The prosecution filed its Submissions dated 24th November 2022 along with List of Authorities of even date. In opposing the Application, the respondent identified 3 issues for determination (a) whether the instant application is Ripe for Determination (b) whether the instant application is Res Judicata (c) whether the impugned exhibits were properly admitted.
18. Relying on the decision in Republic vs EACC & 2others ex Parte Stephen Ogaga Osiro, the Prosecution posits that the admissibility of exhibits is a matter that should be left to the ambit of the trial court to determine. The Prosecution also cites the decision in Thomas Patrick Gilbert Cholmondeley vs Republic Criminal Appeal 116 of 2007 [2008]eKLR in which the court stated that ‘ the basis of an appeal cannot be that an order made in the course of a trial is highly prejudicial to an accused person’.
19. The Prosecution further urges that the application is Res Judicata as a co accused of the Applicant in the trial court had challenged the admission of the same document MFI 54(b) and the issue was heard and determined in Republic vs EACC & 2others ex Parte Stephen Ogaga Osiro (supra) and Stephen Ogaga Osiro vs Attorney general & 2 Others, Nairobi Anti-Corruption Petition E004 of 2021 [2022]
20.   On whether the impugned exhibits were properly admitted, the prosecution asserts that they were, and relies on the decision of the Court of Appeal in Kenneth Nyaga Mwige vs Austin Kiguta and 2 others
21. The prosecution urges that the court has no jurisdiction to entertain the Application and, in the alternative, submits that even if the court has jurisdiction, the trial court made no error in adopting the procedure it did in the admission of the impugned exhibits.
ISSUES FOR DETERMINATION
22. Having considered the application, supporting affidavit and parties’ submissions the issue that stands out for determination is ;
Is whether the documents admitted into evidence vide the impugned ruling of the trial court should be expunged from the record. 
ANALYSIS & DETERMINATION. 
23. This Court is vested with supervisory jurisdiction vide Article 165(6) and (7) of the Constitution of Kenya 2010. The powers of the Court are outlined as
‘165 (6) The High Court has supervisory jurisdiction over the subordinate courts and over any person, or authority exercising a judicial or quasi-judicial function, but not over a superior court.
(7) For purposes of Clause (6) the high court may call for the record of nay proceedings before any court or person, body or authority, referred to in clause (6) and may have any order or give any direction it considers appropriate to ensure the fair administration of justice.
24. Sections 362 and 364 the Criminal Procedure Code set out the powers of the High Court on Revision
362. Power of High Court to call for records. 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.
364. Powers of High Court on revision (1) In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may— (a) in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 354, 357 and 358, and may enhance the sentence; (b) in the case of any other order other than an order of acquittal, alter or reverse the order. (2) No order under this section shall be made to the prejudice of an accused person unless he has had an opportunity of being heard either personally or by an advocate in his own defence
25.  As stated, the issue for determination is whether the admission of the documents by the trial Magistrate in ruling dated 25th July 2022 is a decision amenable to discretionary powers of this court.
26.  On perusing the ruling, I observed that the Magistrate enumerated each of the documents and considered the objection to its admission, the arguments in support of its inclusion and then decided citing reasons. The Magistrate identified the objections to the admission of the documents as revolving around the following issues
a. Different documents in possession of the parties and documents having different markings
b. Non-Disclosure
c. Documents not marked for Identification
d. Bank Statements reflecting different periods than those applied for in court orders
e. Undated document
f. Same markings for two documents
27. On the Applicants assertion that the Court admitted illegally obtained evidence, I find that this claim is not substantiated. The averments of the Applicant speak to Bank Statements that reflect different periods than those applied for, on this ground the instant case is distinguishable from that of Philomena Mbete Mwilu v DPP & 4 Others, where the court found that the
DCI illegally obtained evidence against the Petitioner by gaining access to her accounts with IBL, through the use of a court order that had no bearing on her accounts (emphasis mine) and having found that the DCI thereby misrepresented facts and misused the court order, we have come to the conclusion that the prosecution against the Petitioner cannot withstand.
28.  The instant case challenges the admission of documents by a court in contravention of legal requirements. I make reference to the decision of Judge Joel Ngugi (as he then was) in Ruto V Republic High Court at Nakuru, Criminal Revision No. E12 of 2021 [2022], where the Court was called to revise the correctness, legality and or/ propriety of admitting an agreement without calling its maker and the subsequent finding that the prosecution had established a prima facie case against the applicant.
29.  The Court cited with approval Njuguna Mwangi & Anor Vs Republic High Court at Nairobi ACEC Criminal Revision No. 10 of 2018 [2018] eKLR where the court noted at paragraph 13 of the ruling
It is trite that the exercise of revisionary orders by the High Court is a matter of judicial discretion which must be exercised judicially by the court within the confines of Section 362 and 364(1) of the CPC and not a substitution of an appeal.
30.  The Court in Njuguna case went onto guide that
In a situation such as the instant case which is challenging the admission of certain exhibits for failure to comply with certain legal requirements or standards before production and admission, it is perfectly within the purview of discretion of the trial court to determine the element of admissibility based on the relent (sic) law…The admissibility of exhibits objected to should be challenged or raised after the conclusion of the trial at the appeal stage and not at the admission stage or in the middle of the trial…The production and admission of the said exhibits does not amount to condemnation of the accused person. It is not automatic that the Applicants will be adversely affected by being convicted. In case of a conviction based on those exhibits, the Applicant shall have a remedy by way of an appeal.
31.  At paragraph 31 of the Ruto case, the Court cautioned that the revisionary power of the Court is not to be applied to nit-pick proceedings before Subordinate Courts and counselled that it would be more fruitful for the Applicant to let the trial conclude and then prefer an appeal if aggrieved by the final decision. Based on this reasoning the Court proceeded to dismiss the request for revision.
32. I am persuaded by the Decisions in Ruto and Njuguna. I am not persuaded that exceptional circumstances exist to warrant this court to exercise its discretion to expunge the documents admitted by the Trial Court. Based on the cited authorities I see no illegality, irregularity, or mistake in the ruling of the trial court that would warrant me to interfere.
33. Accordingly, this application is dismissed for lack of merit and the Ruling of the lower court is upheld.
34. The order staying the Trial in the lower court is vacated
35. No order as to costs.
36. It is so ordered
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 10th  DAY of February 2023.

IN THE PRESENCE OF:-
Owiti for Respondent/ ODPP
Paul Ngarua Advocate, for Applicant
Lucy Mwangi Court Assistant