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JudgmentTimothy Katana VS The Republic AND State Law7 min read

Timothy Katana VS The Republic AND State Law

High Court at Malindi High Court · · M Thande

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MALINDI

MISCELLANEOUS CRIMINAL APPLICATION N0. E112 OF 2023 

TIMOTHY KATANA ……….…....……............................….…..……………….… APPLICANT

VERSUS

OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS...………… 1ST RESPONDENT

CHIEF MAGISTRATES COURT……….....……………………………….. 2ND RESPONDENT

ATTORNEY GENERAL………………………………….....………………..3RD RESPONDENT

RULING

  1. By an Application dated 1.12.23, the Applicant seeks the following orders:
  2. Spent.
  3. Spent.
  4. Spent.
  5. THAT the court does review and rescind the said Orders of Hon. Olga Onalo made on 24.11.23 and order that the inquest into the death of Safari Kahindi be heard afresh before another court of competent jurisdiction. 
  6. THAT the court makes any other Order that it deems fit in the interest of justice.
  7. THAT costs of this Application be provided for.
  8. The Application is grounded on the facts set out therein and in the affidavit of the Applicant sworn on even date. The Applicant averred that Hon. Olga Onalo, without any basis, made an erroneous finding in Inquest No. E003 of 2022, that the Applicant was culpable for the death of Safari Kahindi (the deceased). The Applicant’s case is that throughout the inquest no witness blamed him for causing the accident that led to the death of the deceased. Further that he was not called to give his account of what transpired in relation to the accident. Additionally, that the investigating officer, who went to the scene and recorded witness statements and drew a sketch map and found that an inquest be conducted having concluded that the deceased was to blame or the accident was not called to testify. The Applicant thus faults the decision of the learned Magistrate.
  9. The Applicant further contended that of the 1st Respondents proceeds to prefer charges against him, it shall be in violation of Article 157(11) of the Constitution as the evidence does not meet the standard required in making a decision to charge. He urged that a fresh inquest be conducted before another court.
  10. The record shows that on 15.1.22 at around 6pm, an accident occurred at Majengo stage, Malindi involving a motorcycle and motor vehicle KCA 218A, which was driven by the Applicant. As a result of the accident, the deceased who was riding the motorcycle sustained fatal injuries. Following an inquest, the learned Magistrate in her ruling made the recommendation that:

That the driver of motor vehicle registration number KCA 218A Timothy Katana is directly linked to the death of the deceased… and should be charged with the relevant offence thus the office of the Director of Public Prosecution to take the necessary actions in accordance with to law.

It is so ordered.

  1. It is this recommendation that has provoked the Application herein.
  2. The power of a magistrate to conduct an inquiry into the cause of death are stipulated in Section 387 of the Criminal Procedure Code as follows:
  3. When a person dies while in the custody of the police, or of a prison officer, or in a prison, the nearest magistrate empowered to hold inquests shall, and in any other case mentioned in section 386(1) a magistrate so empowered may, but shall in the case of a missing person believed to be dead, hold an inquiry into the cause of death, either instead of or in addition to the investigation held by the police or prison officer, and if he does so he shall have all the powers in conducting it which he would have in holding an inquiry into an offence.
  4. Whenever the magistrate considers it expedient to make an examination of the dead body of a person who has been already interred, in order to discover the cause of his death, the magistrate may cause the body to be disinterred and examined.
  5. If before or at the termination of the inquiry the magistrate is of the opinion that the commission by some known person or persons of an offence has been disclosed, he shall issue a summons or warrant for his or their arrest, or take such other steps as may be necessary to secure his or their attendance to answer the charge; and on the attendance of the person or persons the magistrate shall commence the inquiry de novo and shall proceed as if he had taken cognizance of an offence.
  6. If at the termination of the inquiry the magistrate is of the opinion that an offence has been committed by some person or persons unknown, he shall record his opinion and shall forthwith send a copy thereof to the Director of Public Prosecutions.
  7. If at the termination of the inquiry the magistrate is of the opinion that no offence has been committed, he shall record his opinion accordingly.
  8. The Applicant faults the learned magistrate for making a finding was culpable for the death of the deceased without calling him to give his account of what transpired in relation to the accident.
  9. Where a magistrate forms the opinion that an offence has been disclosed, Section 387(3) of the Criminal Procedure Code requires that the Magistrate takes the necessary steps to secure the attendance of the person who he believes committed the offence, to answer the charge and the inquiry shall be commenced de novo.
  10. In the case of Manyibe & 4 others v Office of Director of Public Prosecutions & 2 others (Criminal Revision E001 of 2022) [2023] KEHC 2757 (KLR) (24 March 2023) (Ruling), Musyoka, J. considered the purport of Section 387(3) and stated:

The provision, in section 387(3), is designed to ensure that the suspects get an opportunity to have the case against them, as presented in the inquiry, to be set out in their presence, where they would have a chance to challenge it, by way of cross-examination of the witnesses, and where they would get a chance to take to the witness stand and tell their story from the perspective of a suspect, and not a mere witness. The final decision, at the end of the inquiry, on whether they ought to face murder or manslaughter or other charges, before the court with jurisdiction to try them for such offences, should be made after they have had a chance to participate fully in the proceedings. Section 387(3) captures the fair hearing principles that are set out in Article 50 of the Constitution.

  1. It is trite law that no person should be condemned unheard, more so where adverse orders are made against such person. The legal imperative of hearing a person who is likely to be adversely affected by a decision before the decision is made cannot be overemphasized. In the case of JMK v MWM & another [2015] eKLR the Court of Appeal observed:

The courts of this land have been consistent on the importance of observing the rules of natural justice and in particular hearing a person who is likely to be adversely affected by a decision before the decision is made.

  1. The record confirms that the Applicant did not testify in the inquest, before the recommendation of the learned Magistrate was made. This in my view offends all notions of justice. I am guided in this regard by the decision in the case of Mbaki & Others v. Macharia & Another [2005] 2 EA 206, at page 210, where the Court of Appeal stated as follows:

The right to be heard is a valued right. It would offend all notions of justice if the rights of a party were to be prejudiced or affected without the party being afforded an opportunity to be heard.”

The Court went on to say:

In Pashito Holdings & another V Ndungu & 2 others KLR (E&L)1 295 it was held that “The rule of audi alteram partem, which literally means 'hear the other side', is a rule of natural justice.  It is an indispensable requirement of justice that the party who has to make a decision shall hear both sides, giving each an opportunity of hearing what is urged against him.

  1. After forming the opinion that the Applicant was responsible for the death of the deceased, the learned Magistrate was required to summon him to court to answer the charge, that was in her view, disclosed in the inquest proceedings. Having failed to so do, the learned Magistrate stripped the Applicant of his right to a fair hearing as guaranteed under Article 50 of the Constitution.
  2. The Applicant further faults the learned Magistrate because the investigating officer, who went to the scene and recorded witness statements and drew a sketch map and found that an inquest be conducted having concluded that the deceased was to blame or the accident, was not called to testify. The record confirms that the investigating officer did not in fact testify.
  3. The Court notes from the record that it is only PW2, the pillion rider on the deceased’s motorcycle, who attributed the accident to the applicant. Notably, he then stated that he did not know what happened. He stated:

The vehicle on that side was on high speed, were it not for the speed, there would be no accident. I cannot say much, I just don’t know what happened. I blame the car that was fast.

  1. With this kind of contradictory evidence, it was critical for the investigating officer to testify. This is because an investigating officer is a crucial witness who interlinks the evidence of the witnesses to bring out the unbiased and neutral truth. Without the evidence of the investigating officer, it is unclear to the Court what informed the learned Magistrate’s finding and ultimate recommendation.
  2. In the end and in light of the foregoing, the Court finds that the finding of the learned Magistrate was not supported by evidence. Further the recommendation was irregular and in contravention of the provisions of Article 50 of the Constitution and Section 387(3) of the Criminal Procedure Code, and is hereby set aside.

DATED SIGNED and DELIVERED in MALINDI this 15th day of November 2024

_______________________________

M. THANDE 

JUDGE

    Timothy Katana VS The Republic AND State Law Timothy Katana VS The Republic AND State Law