( Arising from the proceedings and ruling in Mombasa CM CR NUMBER E569 0F 2024 BEFORE HON G.A. OLLIMO)
1. This Application stems from the prosecution of the Applicants for offence of conspiracy to defeat justice and interfering with witnesses.
2. The Applicants seek the following orders:
1. There be stay of the criminal case and proceedings of the Trial Court (in view of the fact that the matter is coming up for hearing on 10th, 11th, & 12th September 2024) pending hearing and determination of this Revision.
2. An Order be made that this matter be heard by another Trial Court other than the current one.
3. An Order be granted that the Accused persons Application dated 29th May 2024 seeking to have Orders granted compelling the Respondent to discontinue the criminal proceedings and prosecution of the Accused Persons be reinstated and be heard on merit.
4. In the alternative to prayer (3) herein-above an Order be granted compelling the 1st Respondent to discontinue the criminal proceedings commenced against the Accused Persons herein. In the alternative, this Court do issue an order dismissing the 1st Respondent’s criminal case and proceedings against the Accused Persons.
5. An Order of acquittal of the Accused Persons do issue in view of lack of a primary document of accountability, to wit the initial report or Occurrence Book (OB) entry and lack of a specific complaint and complaint in line with decisions of this Court and the Court of Appeal.
6. A declaration that the Trial Court proceedings, Rulings and the charge sheet, the prosecution, trial, and continued trial of the Accused Persons is illegal, unlawful, and unconstitutional in view of the above-stated reasons.
3. This is based on the grounds that:
1. No initial Occurrence Book (OB) entry, initial report or specific complaints exists.
2. The trial court refused to hear further applications, including ones based on new revelations.
3. Court ruled suo moto to dismiss the May 29 application, infringing the Applicants’ right to be heard and right to fair trial under Article 50 of the Constitution.
4. The Applicants argued that their right to fair trial had been infringed upon. This is based on the absence of OB which is contrary to the National Police Service Act Section 50 and Police Standing Orders. They relied on precedent set in James Maina Mwai v Republic which emphasized that lack of an OB can disadvantage an accused’s defence.
5. They also argue that the Child Protection Unit cannot be a complainant as a natural person is required for transparency and accountability.
6. They also argue that the trial magistrate’s decision too stop entertaining applications was irregular and unconstitutional.
7. Having considered the submissions, statutory provisions, and relevant jurisprudence, the Court issues the following findings:
1. On the issue of the absence of the OB entry or named complainant.
It is not in dispute that the prosecution conceded it did not have an initial OB entry or report. They also conceded that they would not rely on the documentation that is not provided.
However, the Respondents claim that the complaint is based on a letter from the Child Protection Unit. Child Protection Units are stablished under Section 64 of the Children’s Act 2022. Police officers are considered authorised officers under Section 2 of the aforementioned Act. Under the Standard Operating Procedures for Child Protection Units, it is the role of Police Officers in Child Protection to take appropriate action against parents, guardians or other persons suspected of child abuse or neglect through the criminal justice system (Section 3.3- The Role of Police Officers in Child Protection).
In situations that warrant referral of cases, there is due process to be followed within the Child Protection Unit. The CPU cannot be a complainant in and of itself. It can, however, lodge a formal complaint. In this situation, there was a formal complaint in form of a letter which serves as the basis for the case. This does not make the CPU the complainant.
Although due process should have been followed, and the CPU should have reported and received an OB number through the correct channels, I lean more towards substantive justice given the constitutional imperatives in Article 21 and Article 53, especially as this matter involves a vulnerable group- children.
Courts have repeatedly held that substantive justice cannot be sacrificed on procedural or administrative lapses, especially where the accused’s rights have not been demonstrably prejudiced.
2 . On the right to fair trial
The Applicants claim that the trial court’s refusal to entertain further interim applications violated their right to a fair hearing. However, courts are vested with discretion to manage proceedings and guard against abuse of process. The trial court’s directive limiting interlocutory applications does not, in and of itself, establish bias or unlawfulness—particularly where parties have already had multiple opportunities to raise objections.
Further, the court struck out the application dated 29th May 2024 not without basis, but upon a finding that it raised substantially similar issues as those previously determined. The Applicants’ dissatisfaction with that conclusion is not, per se, a ground for revision. The proper avenue would have been an appeal.
Additionally, the court did not refuse to entertain further interim applications. The court only discouraged them from making simmilar applications aimed at delaying or derailling the procedings. The exact wordings of the magistrate are: Filing the same application again constitutes an abuse of the court process. Counsel must appreciate that as an officer of the court, he has an obligation to ensure that justice is administerd efficiently and without unnecessary delay.... the application dated 29th may 2024 is therefore dismissed suo moto , and counsel advised to refrain from engaging in such practice in future."
This last sentence cannot be construed to be a bar to filing any application.
This must also be seen against the background to the application that was dismissed. The trial court had just dismissed another application and decried the delay in the matter noting that the matter was ripe for hearing since full pre trial had been complied with. The Trial court had also given firm directions and the application of the no adjournment policy. I must point out that the matter started in 2022 and the hearing was yet to start.
I MPACT OF THE DECISION IN KILIFI
3.The applicants sought and were granted a stay in the delivery of this ruling. They subsequently supplied the court with the ruling by the Chief Magistrate in KILIFI MCSO NO. EO58, formerly MALINDI MCSO 23 OF 2019 AND FORMERLY SHANZU MCSO 15 0F 2019. They submitted that the current case rides on the back of this case and since the Applicants were acquitted in the Sexual Offence case, these charges ought to be terminated as their innocence has been affirmed, and they were vindicated. I have gone through the said ruling, and I find that none of the victims named in the charge sheet testified in court. Consequently, I find that the ruling does not vindicate, but adds weight to the current charges. The ruling also shows that the Magistrates’ Court perform their duty and the Applicants should not fear the process. If there is no evidence, they will be acquitted as they were in the other case.
3.On Supervisory Jurisdiction
The High Court's revisionary jurisdiction under Section 362 of the Criminal Procedure Code and Article 165(6) & (7) of the Constitution is not an avenue for backdoor appeals. It is limited to correcting illegality, impropriety, or material irregularity. I find no such error apparent in the proceedings or rulings of the trial court.
4. Conclusion
The Applicants have not established any error of law or procedure warranting the High Court’s intervention at this stage. The issues raised are either already determined, properly within the trial court's discretion, or appropriate for determination in the course of trial.
1. The Application dated 15th July 2024 is hereby dismissed in its entirety. The trial court proceedings shall proceed as scheduled.
2. Mention before the trial court on 22nd day of July, 2025 for further directions.
3. It is so ordered.
DATED AND DELIVERED virtually at MOMBASA this 26th day June of 2025.
WENDY KAGENDO
JUDGE.
IN THE PRESENCE OF;
S.C DR KHAMINWA FOR THE APPLICANTS
MR SIRIMA FOR THE STATE
MS BEBORA COURT ASSISTANT
1. This Application stems from the prosecution of the Applicants for offence of conspiracy to defeat justice and interfering with witnesses.
2. The Applicants seek the following orders:
1. There be stay of the criminal case and proceedings of the Trial Court (in view of the fact that the matter is coming up for hearing on 10th, 11th, & 12th September 2024) pending hearing and determination of this Revision.
2. An Order be made that this matter be heard by another Trial Court other than the current one.
3. An Order be granted that the Accused persons Application dated 29th May 2024 seeking to have Orders granted compelling the Respondent to discontinue the criminal proceedings and prosecution of the Accused Persons be reinstated and be heard on merit.
4. In the alternative to prayer (3) herein-above an Order be granted compelling the 1st Respondent to discontinue the criminal proceedings commenced against the Accused Persons herein. In the alternative, this Court do issue an order dismissing the 1st Respondent’s criminal case and proceedings against the Accused Persons.
5. An Order of acquittal of the Accused Persons do issue in view of lack of a primary document of accountability, to wit the initial report or Occurrence Book (OB) entry and lack of a specific complaint and complaint in line with decisions of this Court and the Court of Appeal.
6. A declaration that the Trial Court proceedings, Rulings and the charge sheet, the prosecution, trial, and continued trial of the Accused Persons is illegal, unlawful, and unconstitutional in view of the above-stated reasons.
3. This is based on the grounds that:
1. No initial Occurrence Book (OB) entry, initial report or specific complaints exists.
2. The trial court refused to hear further applications, including ones based on new revelations.
3. Court ruled suo moto to dismiss the May 29 application, infringing the Applicants’ right to be heard and right to fair trial under Article 50 of the Constitution.
4. The Applicants argued that their right to fair trial had been infringed upon. This is based on the absence of OB which is contrary to the National Police Service Act Section 50 and Police Standing Orders. They relied on precedent set in James Maina Mwai v Republic which emphasized that lack of an OB can disadvantage an accused’s defence.
5. They also argue that the Child Protection Unit cannot be a complainant as a natural person is required for transparency and accountability.
6. They also argue that the trial magistrate’s decision too stop entertaining applications was irregular and unconstitutional.
7. Having considered the submissions, statutory provisions, and relevant jurisprudence, the Court issues the following findings:
1. On the issue of the absence of the OB entry or named complainant.
It is not in dispute that the prosecution conceded it did not have an initial OB entry or report. They also conceded that they would not rely on the documentation that is not provided.
However, the Respondents claim that the complaint is based on a letter from the Child Protection Unit. Child Protection Units are stablished under Section 64 of the Children’s Act 2022. Police officers are considered authorised officers under Section 2 of the aforementioned Act. Under the Standard Operating Procedures for Child Protection Units, it is the role of Police Officers in Child Protection to take appropriate action against parents, guardians or other persons suspected of child abuse or neglect through the criminal justice system (Section 3.3- The Role of Police Officers in Child Protection).
In situations that warrant referral of cases, there is due process to be followed within the Child Protection Unit. The CPU cannot be a complainant in and of itself. It can, however, lodge a formal complaint. In this situation, there was a formal complaint in form of a letter which serves as the basis for the case. This does not make the CPU the complainant.
Although due process should have been followed, and the CPU should have reported and received an OB number through the correct channels, I lean more towards substantive justice given the constitutional imperatives in Article 21 and Article 53, especially as this matter involves a vulnerable group- children.
Courts have repeatedly held that substantive justice cannot be sacrificed on procedural or administrative lapses, especially where the accused’s rights have not been demonstrably prejudiced.
2 . On the right to fair trial
The Applicants claim that the trial court’s refusal to entertain further interim applications violated their right to a fair hearing. However, courts are vested with discretion to manage proceedings and guard against abuse of process. The trial court’s directive limiting interlocutory applications does not, in and of itself, establish bias or unlawfulness—particularly where parties have already had multiple opportunities to raise objections.
Further, the court struck out the application dated 29th May 2024 not without basis, but upon a finding that it raised substantially similar issues as those previously determined. The Applicants’ dissatisfaction with that conclusion is not, per se, a ground for revision. The proper avenue would have been an appeal.
Additionally, the court did not refuse to entertain further interim applications. The court only discouraged them from making simmilar applications aimed at delaying or derailling the procedings. The exact wordings of the magistrate are: Filing the same application again constitutes an abuse of the court process. Counsel must appreciate that as an officer of the court, he has an obligation to ensure that justice is administerd efficiently and without unnecessary delay.... the application dated 29th may 2024 is therefore dismissed suo moto , and counsel advised to refrain from engaging in such practice in future."
This last sentence cannot be construed to be a bar to filing any application.
This must also be seen against the background to the application that was dismissed. The trial court had just dismissed another application and decried the delay in the matter noting that the matter was ripe for hearing since full pre trial had been complied with. The Trial court had also given firm directions and the application of the no adjournment policy. I must point out that the matter started in 2022 and the hearing was yet to start.
I MPACT OF THE DECISION IN KILIFI
3.The applicants sought and were granted a stay in the delivery of this ruling. They subsequently supplied the court with the ruling by the Chief Magistrate in KILIFI MCSO NO. EO58, formerly MALINDI MCSO 23 OF 2019 AND FORMERLY SHANZU MCSO 15 0F 2019. They submitted that the current case rides on the back of this case and since the Applicants were acquitted in the Sexual Offence case, these charges ought to be terminated as their innocence has been affirmed, and they were vindicated. I have gone through the said ruling, and I find that none of the victims named in the charge sheet testified in court. Consequently, I find that the ruling does not vindicate, but adds weight to the current charges. The ruling also shows that the Magistrates’ Court perform their duty and the Applicants should not fear the process. If there is no evidence, they will be acquitted as they were in the other case.
3.On Supervisory Jurisdiction
The High Court's revisionary jurisdiction under Section 362 of the Criminal Procedure Code and Article 165(6) & (7) of the Constitution is not an avenue for backdoor appeals. It is limited to correcting illegality, impropriety, or material irregularity. I find no such error apparent in the proceedings or rulings of the trial court.
4. Conclusion
The Applicants have not established any error of law or procedure warranting the High Court’s intervention at this stage. The issues raised are either already determined, properly within the trial court's discretion, or appropriate for determination in the course of trial.
1. The Application dated 15th July 2024 is hereby dismissed in its entirety. The trial court proceedings shall proceed as scheduled.
2. Mention before the trial court on 22nd day of July, 2025 for further directions.
3. It is so ordered.
DATED AND DELIVERED virtually at MOMBASA this 26th day June of 2025.
WENDY KAGENDO
JUDGE.
IN THE PRESENCE OF;
S.C DR KHAMINWA FOR THE APPLICANTS
MR SIRIMA FOR THE STATE
MS BEBORA COURT ASSISTANT