The Supreme Court has trimmed the long and meandering side cases that emanate from criminal trials, delaying their conclusion.
In a landmark judgement which is a major victory to the Director of Public Prosecution Noordin Haji, the highest court in the land yesterday declared that trial courts should not halt hearing criminal cases awaiting suspects to lodge or appeal preliminary or constitutional issues that arise.
A five-judge bench composed of Chief Justice David Maraga, Justices Mohamed Ibrahim, Smokin Wanjala, Njoki Ndung’u and Isaac Lenaola declared that an appeal on rulings of preliminary issues should be deferred and wait for the final judgment of the trial court.
The judgement stemming from a murder trial of one Joseph Lendrix Waswa, which has stalled for seven years, is likely to affect other cases which have slowed down out of issues cropping up from the trials.
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“Flowing from the above, we are of the view that the right of appeal against interlocutory decisions is available to a party in a criminal trial but should be deferred, and await the final determination by the trial court. A person seeking to appeal against an interlocutory decision must file their intended notice of appeal within 14 days of the trial court’s judgment,” the court ruled.
The Supreme Court, however, gave a caveat for accused persons to appeal or challenge trial court rulings when the trial is ongoing. The judges said such an appeal should be based on exceptional circumstances and should be sparingly allowed.
Meanwhile, the court asserted that it is only the DPP who can initiate and conduct a criminal trial and that victims have a right to participate in a criminal trial.
According to the Supreme Court, the appeal court should only entertain such cases if they touch on the admissibility of evidence and which would either eliminate or substantially weaken the prosecution case.
The court ought to also factor in whether the ruling by the trial court is very important to the trial and whether it involves the recusal of a trial judge or magistrate.
Barely do major trials proceed without a challenge. Some are either terminated by the High Court or are pending awaiting appeal outcome.
Deputy Chief Justice Philomena Mwilu falls into the first category.
Her trial was terminated by the High Court even before she answered to charges against her by the DPP. The duel is now before the appellate court.
Justice Mwilu challenged the admissibility of evidence which was to be used against her.
At the same time, the Supreme Court’s decision is likely to have a bearing on a petition for her removal now stuck before the Judicial Service Commission.
Justice Mwilu obtained orders staying the hearing of the petition, complaining that Attorney General Kihara Kariuki and Law Society of Kenya (LSK) male representative Macharia Njeru should not sit in a committee that will hear the petition over alleged conflict of interest.
At the same time, the High Court last year barred the DPP from charging Mombasa Principal Magistrate Edgar Kagoni with any charges in relation to alleged loss of exhibits, among them heroin valued at Sh30 million, in a case he presided over. The case has since stalled.
In February, this year, a court in Nairobi also barred the DPP from charging former LSK chair Eric Mutua over alleged forgery. This is in connection to Malili Ranch land sale for the construction of Konza Technology City.
Senior lawyer Tom Ojienda is also battling over a decision to charge him in relation to Mumias Sugar Company saga.
The trial of former Transport Cabinet Secretary Michael Kamau was also marred by side battles. Kamau was in 2015 charged with two counts of abuse of office and willful failure to comply with applicable procedures as well as guidelines relating to the management of public funds.
He was also accused of failing to comply with the set rules by ignoring the design of Kamukuywa-Kaptama-Kapsokwony-Sirisia Road done by Engiconsult Limited at a cost of Sh33,303,600.
But he challenged the trial, arguing that the Ethics and Anti-Corruption Commission (EACC) was not properly constituted. The side trials took three years in court before he was charged afresh. At the time he was being charged afresh in 2018, he was before the Supreme Court seeking to terminate the case.
Former Nairobi Governor Evans Kidero’s trial over Sh58 million fraud was also affected after the High Court in June, this year, barred the DPP from charging him afresh. Kidero argues that the charge sheet against him is defective.
In the Waswa case, the criminal court had heard six witnesses when the family of the deceased asked the court to allow them to participate in the case as victims of crime. Aggrieved, he appealed arguing that victims had become secondary prosecutors.
Waswa was accused of killing a 22-year-old student Mitch Barasa Kibiti at Kimilili on August 30, 2013. He pleaded not guilty to the offence and was released on bail pending trial.
The Supreme Court directed that the 2014 murder trial should proceed on a priority basis.