Republic v Subordinate Court of the first Class Magistrate at City Hall, Nairobi and another ex parte Yougindar Pall Sennik and another Retread Limited [2006] 1 EA 330

Facts

The Public Health Officer of the Nairobi City Council served a notice on the ex parte applicants on 18August 2004 to rectify a nuisance within 30 days or face prosecution. The ex parte applicants appealed to the Chief Health Officer of the council who granted them a 6 months’ extension. This notwithstanding, the council proceeded to prosecute them in criminal case number M 867(a) of 2004 with the failure to comply with the notice.During the hearing witnesses were called to testify about the validity of the extension letter but theex parte applicants were not allowed to cross-examine them. They therefore applied for orders of orders of certiorari to quash orders made in the proceedings and orders of prohibition prohibiting the court from continuing with the prosecution of the said case. The council on the other hand, contended inter alia that the proceedings are proper and bona fide, that the ex parte applicants never requested for a chance to cross-examine the witnesses and that in any event they could still be recalled.

Held – It is clear that the ex parte applicant intended to use the letter of extension in his defense and the court decided to deal upfront with the effect of the letter contrary to the relevant provisions of the Criminal Procedure Code and went on to give a ruling on its validity. By failing to follow the correct procedure intended to achieve a fair hearing in criminal proceedings it seems to this Court the process followed gave rise to the following:

 (i) Error of law or the applicable legal procedure in criminal cases.

 (ii) The lower court’s action and ruling interfered with the principle of the presumption of innocence which is one of the constitutional rights of an accused person upon being charged and which presumption persists after charging until the final judgment. Because the accused clearly intended to rely on the letter of extension to show that he was not guilty of any offence known to law, the lower court clearly shifted the burden of proof of the accused to him whereas that burden is always on the prosecution except where a written law provides otherwise on any particular facts.

 (iii) Having poisoned her mind so early by calling the court’s own witnesses it would appear the magistrate dropped her mantle to be an independent and impartial tribunal as contemplated under section 77(1) of the Constitution and became openly partial or would fairly be seen to have unconsciously taken sides by a reasonable observer.