Joseph Lendrix Waswa v Republic [2020] eKLR

Key Facts

Issues

• Addressing the appropriate procedures for handling constitutional issues that arise during criminal trials to ensure the trial is concluded without unreasonable delay, in accordance with Article 50(2)(e) of the Constitution and international legal standards.
• Determining the extent to which victims of crimes can participate in criminal trials, including the balance between victims' statutory rights under the Victim Protection Act (VPA) and the accused's constitutional right to a fair trial as outlined in the Constitution.

Holdings

• The Supreme Court dismissed the Appellant's appeal, upholding the victim's right to participate in criminal trials as per the Victim Protection Act (VPA) and the Constitution. The Court clarified that a victim's participation is permitted to present their views and concerns at appropriate stages of the trial, provided it does not prejudice the accused's right to a fair trial or interfere with the Director of Public Prosecutions' (DPP) exclusive authority to conduct prosecutions. The victim's role is not that of a 'secondary prosecutor,' and their involvement must be strictly limited to their 'views and concerns,' with the DPP retaining control over the trial. The Court emphasized that participatory rights are to be exercised judiciously to avoid undue delay, ensuring fairness to all parties.
• The Court addressed the issue of interlocutory appeals in criminal trials, determining that such appeals should generally be deferred until the trial's conclusion to prevent unnecessary delays. Exceptional circumstances where interlocutory appeals may be permitted include decisions on evidence admissibility that could weaken the prosecution's case, decisions of significant importance to the trial, or recusal of the trial court. The Court emphasized the constitutional right to a fair and timely trial under Article 50(2)(e) and directed that the original murder trial be prioritized to mitigate the six-year delay caused by previous interlocutory appeals.

Remedies

• The substantive murder trial is directed to be heard and determined on the basis of priority due to inordinate delay.
• The Petition of Appeal No. 23 of 2019 dated 3rd July 2019 is hereby dismissed.
• The determination in Criminal Appeal No. 132 of 2016 (Githinji, Okwengu & J. Mohammed, JJ.A) is hereby upheld.
• Each party shall bear their costs of the Appeal.

Legal Principles

• The Court reiterated the importance of the rule of law as a guiding principle under Article 259(1)(b). It stressed that both victims' rights under the Victim Protection Act and the accused's constitutional rights under Article 50 must be upheld in a fair and impartial manner. The decision reinforced that criminal trials must be conducted without unreasonable delay (Article 50(2)(e)) and that victims' participation should not prejudice the accused's right to a fair trial.
• The Supreme Court emphasized the purposive approach in interpreting constitutional provisions, particularly Article 259(1) and (3), which requires construing the Constitution to promote its purposes, values, and principles. This approach was used to balance victims' rights under Article 50(9) with the accused's fair trial rights under Article 50(1)-(2). The Court held that victims' participatory rights must be interpreted in a manner that advances human rights and fundamental freedoms while ensuring fairness to all parties.

Precedent Name

• Mallikarjun Kodagali (Dead) represented through Legal Representation/Appellants vs State of Karnataka & others
• Direct United States Cable Co. vs The Anglo-American Telegraph Co.
• R vs Big Drug Mart Ltd.
• Tinyefuza vs Attorney General of Uganda
• South Dakota vs. North Carolina
• Paul Ssemogerere and Others vs The Attorney General
• Ndyanabo vs. Attorney General
• Dennis Mogambi Mong'are vs. Attorney General & 3 others

Cited Statute

• Office of the Director of Public Prosecutions Act, 2013
• Victim Protection Act, 2014
• Constitution of Kenya, 2010
• Criminal Procedure Code

Judge Name

• I. Lenaola
• Njoki Ndungu
• M.K. Ibrahim
• S.C. Wanjala
• D. K. Maraga

Passage Text

• a. Where the decision concerns the admissibility of evidence... c. Where the decision entails the recusal of the trial Court to hear the cause.
• i. Petition of Appeal No 23 of 2019... iii. In view of the inordinate delay... be heard and determined on the basis of priority.
• The victim has no active role in the decision to prosecute... The DPP must at all times retain control of, and supervision over the prosecution of the case. As such, the constitutional and statutory powers of the DPP to conduct the prosecution is not affected by the intervention of the victim in the process.