(Being an Application for Revision of the ruling and orders of Principal Magistrate’s Court at Tononoka (Hon. Nelly Chepchirchir, PM) delivered on the 25th and 27th November 2024 in Republic v. Paul Nthenge Mackenzie alias Mtumishi alias Nabii alias Papaa & 38 others (Tononoka Children Case No. E006 of 2024)
A. BACKGROUND AND INTRODUCTION
For determination is the application dated 27th November 2024. The Applicant moved this court under Articles 49 , 50, 157, 159 and 165(6) and (7) of the Constitution of Kenya ,2010, sections 362 and 354 of the Criminal procedure code, cap7 5 Laws of Kenya, and all other enabling provisions of the Law)
B. THE APPLICATION
The applicant was seeking the following orders;
1.THAT this Honorable Court be pleased to stay the proceedings in Republic versus Paul Nthenge Mackenzie alias Mtumishi alias Nabii alias Papaa & 38 others In (Tononoka Children Case No.8006 of 2024) (hereinafter' the subject criminal case) pending before the Principal Magistrate's Court at Tononoka (Hon. Nelly Chepchirch PM) (hereinafter' the leaned trial court).
2.THAT this Honorable court be pleased to call for and examine the record of the subject criminal case for the purpose of satisfying itself as to the correctness, legality and or propriety of the court's ruling delivered on delivered on 25th and 27th November 2024 (hereinafter, the impugned rulings) and or the regularity of the proceedings leading thereto'
3.THAT this Honorable Court be pleased to find that the impugned rulings were incorrect, improper and illegal in the circumstances, as the Applicant provided a proper justification for its application for adjournment on 25th and 27th November 2024 and that the said application was therefore merited
4.THAT this Honourable court be pleased to find that the orders issued suo moto to proceed through an untested virtual prosecution by taking evidence of witnessed listed to appear physically present in court ( by a prosecutor appearing remotely without inviting representations of the prosecution or defenses on the suitability and appropriateness of the said procedure through active case management amounted to a capricious and arbitrary exercise of judicial discretion.
5.THAT this Honorable Court be pleased to revise the impugned rulings and substitute the order allowing the Applicant’s application for adjournment until a further date as sought.
C. The application is premised on the Supporting Affidavit sworn by PETER KIPROP' a Senior Assistant Director of Public Prosecutions (SADPP) in the Office of the Director of Public Prosecutions (ODPP) and on the following GROUNDS:
l. THAT in arriving at the impugned rulings, the learned trial magistrate failed to consider relevant factors including that the non-resident prosecutors in conduct of the matter, and not just the witnesses, could not make it to court for pretrial (and trial in the case of the latter) was due to a reasonable explanation of financial challenges'
2. THAT despite the court's directions of 26th September 2024 to the effect that the virtual witnesses would attend court virtually on the 4thand 5th December 2024, the learned trial magistrate reneged on the said directions that witnesses as listed would be required to attend physically on the week of 25th -28th November.
3. THAT despite acknowledging it, the learned trial magistrate failed to take into account that this was the very first time the Applicant was making an application for adjournment and that the Applicant had always endeavored to facilitate an expeditious trial including moving the court to receive witness evidence via video conference of specified witnesses to save on cost and witness inconvenience and continuously reviewing the case to avoid superfluity of witnesses.
4. THAT the Leaned Magistrate ordered suo moto a virtual video conference to proceed on the 21st and 22nd November 2024 where the prosecution was to prosecute the case in conjunction with a counsel who was neither resident to the Tononoka law courts nor conversant with the facts and proceedings in the case herein and without inviting parties to address it on the suitability and propriety this being a necessary active case management procedure to avoid causing prejudice to parties
5. THAT in the absence of any rules or practice directions under section 63A of the Evidence Act or any law allowing for remote or virtual prosecution (where it is the prosecutor appearing online away from court) and in failing to conduct an active case management to determine suitability of the procedure of remote prosecution the learned magistrate denied the prosecutor an opportunity conduct a Pretrial, to know the arrangement in place regarding the position of the recording gadget in relation to the witness, the ability of the witness being examined by a prosecutor remotely, observe his demeanor, directly refer the witness to documents and parts of documents and other real evidence and to address any technical aspects in the processes of hearing the case'
6.THAT the leaned trial magistrate mechanically relied on the Judiciary’s alleged adoption of a-no- adjournment policy despite the specific and peculiar circumstances of the application for adjournment leading to the impugned rulings and the prejudice the prosecution would suffer if the application for adjournment was denied' 7.THAT the learned Magistrate appointed another prosecutor not well versed and prepared to tackle the case to assist the virtual prosecutor without considering the competing needs of other cases and other courts in Shanzu where the prosecutor was to appear before.
8.THAT the learned trial magistrate misapprehended and misapplied Articles l57 and l59 of the Constitution of Kenya, and section 23 of the Office of the Director of Public Prosecutions Act,No.2 of 2013 to the erroneous effect that the law does not envisage an adjournment on the basis of indisposition of counsel and the inability to conduct a pretrial of the witnesses due to a cash-crunch. 9.THAT if the stay pending revision is not granted, the prosecutions interlocutory application may be rendered an academic exercise since the matter is likely to proceed to its logical conclusion without correcting the reversible error, the prosecution having already intimated to the court that it had intended to close its case at the last date of hearing in December 2024'
l0.THAT it is in the public interest that the prosecution be given an opportunity to prosecute the criminal case with at-least one of the lead prosecutors present physically in court and that a virtual prosecution may only be directed upon hearing the parties and ruling or direction on the suitability and appropriateness of adopting such a model.
D.REPRESENTATION
The applicant's team comprised of Mr. Kiprop, Mr. Owiti, Ms Rubia, Ms Biasha , Ms Odongo and Mr. Yami. The Respondents were represented by Mr Obonyo.
E.SUBMISIONS AND LIST OF AUTHORITIES.
The matter proceeded by way of oral submissions and the applicant filed the following authorities.
- Section 205 Cr.PC . “(1) The court may, before or during the hearing of a case, adjourn the hearing to a certain time and place to be then appointed and stated in the presence and hearing of the party or parties or their respective advocates then present.
- Peter M. Kariuki v Attorney General [2014] Eklr
Where the court stated that;
We are of the opinion that although the same principles are relevant in respect of applications for adjournments of criminal trials nevertheless because of the constitutional basis of that right and the potential impact on a citizen’s liberty, the court is obliged to be more circumspect in rejecting an application for adjournment and to specifically consider whether denial of such a right guaranteed by the Constitution would result in miscarriage of justice’ Citing Famous Cycle Agencies Ltd & Others V Masukhalal Ramji Karia, (1995) Kampala Law Reports 100 that discretion is not subject to any definite rules, but should be exercised in a judicial and reasonable manner and upon proper material Citing Lolwe Agencies Ltd V Midland Emporium Ltd, Hccc No 25Of 1998(Ksm), where the High Court appropriately stated that, although the granting of adjournment is discretionary, it is like all judicial discretion which should be exercised judicially and that means that it must be exercised upon reason and principle and not upon caprice or personal opinion.
- Section 281(3) Cr.PC (Procedure of trials at the High Court) Section 283 (1) -Power to postpone or adjourn proceedings at the High Court‘
If, from the absence of witnesses or any other reasonable cause to be recorded in the proceedings, the court considers it necessary or advisable to postpone the commencement of or to adjourn a trial, the court may from time to time postpone or adjourn it on such terms as it thinks fit for such time as it considers reasonable, and may by warrant remand the accused to some prison or other place of security.
4. Republic –Vs- Paul Mutuku Magado (2019) eKLR At par 16 ‘The above provisions leave no room for doubt that an adjournment is granted at the discretion of the court. It must however be exercised fairly and justly upon reasonable grounds being advanced. It must not be forgotten that the purpose of a trial is to give parties a fair level playing field where each will begiven an opportunity to present its case. The said court process should however not be subjected to abuse. In making reference to the civil jurisdiction, it has been said time and again that the court has a duty to sustain a suit by giving parties a full opportunity to prosecute or defend their cases. In drawing an analogy between the civil jurisdiction and criminal jurisdiction, a trial court hearing a criminal case has the duty to do justice to the parties that go before it by giving a reasonable opportunity to the complainant to present his/her caseand for the accused person to do likewise’
5.The v Republic vs Kepha Nyaga (Criminal Revision 28 of 2019) [2019] KEHC 4503 (KLR) (22 July 2019) (Revision) ‘ In my view it was unfair to the prosecution to be denied an adjournment when there was no prior record of “many” last adjournments having been granted to them. In the circumstances, I will exercise this court’s supervisory power to revise the trial court’s ruling and to allow the Prosecution to call its last witness, the Investigating officer, which I
- Republic vs Paul Mutuku Magado (2019) eKLR “It is therefore necessary for a trial court to look at the bigger picture and consider many factors in order to determine if it is in the interest of justice to grant or to deny either the prosecution or an accused person an adjournment. Whereas each application for adjournment depends on its own special circumstances, some of the common factors to guide a court in making a decision are:-
(i) The length of time a case has taken undergoing hearing from the time the plea was taken
; (ii) Whether the accused person is out on bail/bond pending hearing or if he/she is in custody;
(iii) The number of applications for adjournment an accused person or the prosecution has made;
(iv) If the reasons given for adjournment are plausible; (v) The commitment of the parties to have the case head expeditiously; (vi) If any exogenous factors have contributed to delay in the hearing of a case;
(vii) If new or additional compelling evidence has come to the attention of the prosecution or the accused person in the course of hearing the case; and
(viii) The nature of the charge and consequent sentence if an accused person was to be convicted
6. Obanda V Stage Coach International Services Ltd & Another, Ca No. 6 Of 2001 Cited in Peter M. Kariuki v Attorney General [2014] eKLRwhere court of appeal stated that ; ‘where a court fails to apply his mind to the question whether a miscarriage of justice might be occasioned to a party who is refused an adjournment, that would constitute sufficient basis upon which an appellate court would been entitled to interfere with the exercise of the discretion.
7.Section 63A Evidence Act 1. A court may receive oral evidence through teleconferencing and videoconferencing. 2. The Chief Justice may develop regulations to govern the use of teleconferencing and video conferencing.
8.CLAUSE 5.3 (H),(I)( J) Of The Guidelines For Active Case Management Of Criminal Cases In Magistrate Courts And High Courts - The guidelines establish the need for pretrial conferences and active case management guidelines. The Clauses tackle ;
(h) the need to ensure determinations of all aspects of the case necessary for expeditious trial,
(I) encouraging the parties to co-operate in the progression of the case and
(J) exploration of the practicability of making use of technology
9.Savannah Development Co Ltd v Mercantile Finance Co Ltd [1992] eKLR ‘.On first principles, adjournment is only granted on the most compelling of reasons laid bare for anyone to see, that indeed adjournment is called for, given the circumstances of the particular case’
9. Challenges of holding Virtual proceedings . https://Www.Ohchr.Org/Sites/Default/Files/Documents/Issues/Ruleoflaw/Briefer-Online-Hearings-Ju2. https://www.researchgate.net/publication/351809379.The_Effectiveness_of_Virtual_Trials_for_Criminal cases19_Pandemic/fulltext/60ab4942299bf1031fc42fba/The-Effectiveness-of-Virtual-Trials-for-Criminal cases.
F. The respondents did not file any response but they were present online and their learned counsel MR Lawrence Obonyo submitted briefly. Their position was that their interest is to have the matter expedited and concluded. He pointed out that we have lost one of the Respondents during the pendency of this matter hence the need to expedite it.
G. REVISION POWERS
The power of revision which this court has been asked to exercise is vested in this court by section 362 of the Criminal Procedure Code which provides as follows:- “The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself 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.”
11. Section 364 of the said Code provides thus:-
(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 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.
(c) In proceedings under section 203 or 296(2) Penal Code, the Prevention of Terrorism Act, the Narcotic Drugs and Psychotropic Substances (Control) Act, the Prevention of Organized Crimes Act, the Proceeds of Crime and Anti-Money Laundering Act, the Sexual Offences Act and the Counter-Trafficking in Persons Act, where the subordinate court has granted bail to an accused person, and the Director of Public Prosecution has indicated his intention to apply for review of the order of the court, the order of the subordinate court may be stayed for a period not exceeding fourteen days pending the filing of the application for review.
(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: Provided that this subsection shall not apply to an order made where a subordinate court has failed to pass a sentence which it was required to pass under the written law creating the offence concerned.
(3) Where the sentence dealt with under this section has been passed by a subordinate court, the high court shall not inflict a greater punishment of the offence which in the opinion of the High Court the accused has committed that might have been inflicted by the court which imposed the sentence.
(4) Nothing in this section shall be deemed to authorize the High Court to convert a finding of acquittal into one of conviction.
(5) When an appeal lies from a finding, sentence or order, and no appeal is brought, no proceeding by way of revision shall be entertained at the insistence of the party who could have appealed.”
15. The relevant provisions for adjournment of cases in the lower court is Section 205 of the Criminal Procedure Code.
Section 205(1) of the said Code provides as follows:- “(1)The court may, before or during the hearing of a case, adjourn the hearing to a certain time and place to be then appointed and stated in the presence and hearing of the party or parties or their respective advocates then present, and in the meantime the court may allow the accused person to go at large, or may commit him to prison, or may release him upon his entering into a recognizance with or without sureties conditioned for his appearance at the time and place to which the hearing or further hearing is adjourned: Provided that no such adjournment shall be for more than thirty clear days, or, if the accused person has been committed to prison, for more than fifteen clear days, the day following that on which the adjournment is made being counted as the first day.
(2) Notwithstanding subsection (1), the court may commit the accused persons to police custody
(a) For not more than three clear days if there is no prison within five miles of the court-house; or
(b) For not more than seven clear days if there is no prison within five miles of the court-house and the court is not due to sit again at that court-house within three days; or
(c) At the request of the accused person, for not more than fifteen clear days.
(3) For the purposes of this section, in relation to any case where the maximum sentence for the offence with which the accused person is charged is punishable only by fine, or by imprisonment not exceeding twelve months with or without a fine “prison” shall be deemed to include a detention camp established in accordance with the Detention Camps Act.”
H. ISSUES FOR DETERMINATION
WHETHER THE TRIAL COURT EXERCISED HER DISCRETION CORRECTLY, LAWFULLY AND PROPERLY IN;
DENYING THE APPLICANT’S APPLICATION FOR ADJOURNMENT AND ORDERING THAT PART OF THE PROSECTION TEAM SHOULD APPERAR VIRTUALLY.
I. ANALYSIS
The above cited provisions and authorities leave no room for doubt that an adjournment is granted at the discretion of the court. It must however be exercised fairly and justly upon reasonable grounds being advanced. It must not be forgotten that the purpose of a trial is to give parties a fair level playing field where each will be given an opportunity to present its case. The said court process should however not be subjected to abuse. In making reference to the civil jurisdiction, it has been said time and again that the court has a duty to sustain a suit by giving parties a full opportunity to prosecute or defend their cases. In drawing an analogy between the civil jurisdiction and criminal jurisdiction, a trial court hearing a criminal case has the duty to do justice to the parties that go before it by giving a reasonable opportunity to the complainant to present his/her case and for they accused person to do likewise.
In this case, I must commend all the parties as they had set out on the right trajectory . They applied all the case management tools available including the use of virtual hearings . The trial court properly noted that this was a matter of public interest and also involving some minors hence the need to expedite the same and apply the no adjournment policy . The parties had set out on a very organized and detailed schedule. The Applicants had conceded that some of their witnesses would appear physically and others virtually. These witnesses had been identified and scheduled.
From this , I fully understand the trial court’s difficulty in having the hearing derailed against that background.
On the other hand and despite the preparatoIns, I agree with Mr Yami’s submission that at times, justice hurried is justice buried. When judges, magistrates or even prosecutors are pressured to make hasty decisions, they may overlook important evidence or aspects of the case or make mistakes. This can lead to wrongful convictions, acquittals of guilty persons or other unjust out comes.
To avoid this trap, courts ought to strive to find a balance between timeliness and thoroughness.
As noted above the case was going on well until the issue of the cash crunch came up.
J. CASH CRUNCH
It is true that a cash crunch is a novel ground for seeking an adjournment but the rules for granting the same are not cast in stone . Times change all the time and one should be open minded.
In this case, the court trial court again tried to balance the competing interests and that is how the directions on the hybrid hearing with some parties or prosecution counsel present in court and others appearing virtually came up.
This is the main ground for the applicant’s grievance. That they were not properly involved and the system requiring the prosecutor to be away and without proper pre trial with the remote witness , was prejudicial to their case.
K.VIRTUAL HEARINGS IN CRIMINAL CASES
Our judicial system is quickly evolving and the uptake of technology is fairly advanced.
Currently the following Practice Directions guide the automation journey in the Judiciary;
- The Practice Directions on Electronic Case Management which were gazetted on 24th March 2020 through Kenya Gazette Notice No. 2357 under the Civil Procedures Act.
- Practice Directions on standardization of Practice & Procedures in the High Court 2021 gazetted on 14th January 2022 Vide Gazette Notice No. 189
- High Court of Kenya Practice Direction on Proceedings before the Commercial & Tax Division in Nairobi
- Practice Directions for Virtual Court Sessions, 2023 gazetted on 2nd June 2023 vide gazette Notice No.26
A careful analysis of the above guidelines and directions show that they have a heavy learning towards the civil procedure. The criminal procedure varies significantly in various aspects such as to how evidence is to handled during virtual hearings. In much as we have pre trials and disclosure of the evidence, the same is not filed in court in advance and it is importsnt important to set out the dos and donts. This needs the in put of the ODPP.
We also do not have proper guidelines on transcriptions in criminal cases since the proceedings are taken in the languages that the accused person best understands. Courts have had to improvise as we move along this digital journey.
It is against this background that the applicants moved to court .
L. DETERMINATION
In the case of Joseph Ndungu Kagiri v Republic [2016] eKLR: - the court stated that
“In criminal trials, the quest for a shorter process isn’t necessarily better. Issues or evidence which matters can be missed. Procedures designed to safeguard rights can be truncated and can lead to unfair trials, subsequent appeals and more costs and waste of valuable time as we have experienced in this matter. The effect is that such hurried trials are "Not so efficient after all." Accused persons may be prevented from properly exercising their rights to put their case, a position entrenched in our criminal justice system, long upheld by common law and enshrined in Article 50 of our constitution.”
It is trite law that the discretion to grant or refuse adjournments is within the ambit of the trial court. It must be borne in mind that an application for adjournment must be supported by reasons that sufficiently explain why the party seeking the to put off the matter should be considered. It is trite law that trial court is under no obligation to grant an adjournment if it is not convinced that the application is supported by good and credible reasons. The constitutional rights of all the parties in the case must be taken into consideration in granting or refusal of adjournment.
It is true that a cash crunch is a novel ground for seeking an adjournment but the rules for granting the same are not cast in stone . The applicants were willing to have the hybrid hearings.
I find that despite the court's directions of 26th September 2024 to the effect that the virtual witnesses would attend court virtually on the 4th and 5th December 2024, the learned trial magistrate reneged on the said directions that witnesses as listed would be required to attend physically on the week of 25th -28th November 2024. There was a flurry of activities as the parties tried to get a resident and remotely based prosecutor until the matter moved to this court.
I agree with the Applicant that the directions given did not give them adequate time to prepare themselves and the witnesses and this greatly prejudiced their progress.
Accordingly I find that the Application has merit. Prayers 1 to 4 were allowed at the interlocutory stage which meant that the matter stalled.
The Applicants indicated at the start, that 3 or so weeks were adequate to try sort out their in house matter. That period has since passed. As pointed out above, even the directions to have the hybrid prosecution was not per se wrong only that Applicant ought to have been heard and a mutually mode and dates agreed upon.
The parties also engaged the trial court, with leave, and a mention date was set. The matter will be mentioned on the said date.
The parties are to proceed with the trial with proper directions . If the cash crunch has not yet been resolved, the Applicants ought to have adequate time for the pre trial between the witnesses , the resident and remotely based prosecutors.
This is more so as we do not have proper guidelines in that area.
As pointed out above, there is a pressing need for clear practice directions regarding the procedure and process for handling virtual hearings, proceedings, production of evidence and processing of transcriptions in criminal cases. I commend the applicants, as this application has illuminated the necessity for such guidelines and made the issue more apparent.
The Deputy Registrar to ensure that a copy of this ruling is availed to the Hon The Chief Justice and the Registrar Automation for further action in liaison with the Administration .
It is so ordered.
Dated, signed and delivered online this 30th day of December 2024 and copies sent to the email addresses of both sides as agreed.