Patrick Wanzala Mulwoto v Director of Public Prosecutions [2019] KECA 426 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that courts can decide cases on written submissions alone, and refused to stop the appellant's ongoing criminal trials.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned judge erred in failing to take directions on the mode of proceedings and in determining the petition without oral highlighting of written submissions, thereby violating the appellant's right to be heard
- 2.Whether the judge failed to consider the list of authorities filed by the appellant
- 3.Whether the judge failed to evaluate the evidence on record before arriving at his decision
- 4.Whether the State Counsel who appeared and filed submissions before the High Court was improperly on record
- 5.Whether the two pending criminal cases before the Mumias Senior Principal Magistrate's Court should be quashed for alleged abuse of power and mistrial
Key legal issues
#Right to be heard - whether absence of oral highlighting of written submissions violates fair hearing
No violation; the right to be heard may be satisfied by written submissions or affidavit evidence, and oral hearing is not mandatory absent exceptional circumstances or statutory requirement
The Court reaffirmed that the right to be heard is a cornerstone of natural justice, but its content may take oral or written form. Guided by Mbaki v Macharia, comparative authority from India, and New Plast Industries, it held that a party given an opportunity to submit its case in writing is not denied natural justice where oral hearing is refused. The record showed the appellant's counsel made oral submissions supported by a list of authorities, so the ground failed.
Failure to consider the appellant's list of authorities
Ground failed; the record was incomplete (submissions and lists of authorities absent) and the appellant produced no material proving the judge ignored his authorities, so the burden of proof under Section 107(1) of the Evidence Act was not discharged
The Court noted the appellant neither cited nor identified the authorities allegedly ignored. Because the record of appeal lacked the written submissions and lists of authorities, the Court invoked Section 107(1) of the Evidence Act, placing the evidential burden on the appellant, who failed to satisfy it. The ground therefore had no merit.
Whether the judge failed to evaluate the evidence on record
The judge properly evaluated the evidence; the impugned ruling contained a heading 'analysis and determination' with evaluation, reasoning and correct legal principles
Re-appraising the ruling as a first appellate court, the Court noted the judge correctly stated that investigation and prosecution do not per se violate constitutional rights, appraised the charge sheets and the investigating officer's inventory, and determined admissibility issues. The Court was satisfied the judge aptly applied the correct principles of law.
Whether the pending criminal proceedings should be quashed for abuse of power or mistrial
No; there was no evidence of abuse of the DPP's powers or of mistrial, and a mistrial finding is impermissible before a trial concludes
The Court held that quashing would usurp the magistrate's court's jurisdictional competence over the on-going trials. It refrained from commenting on facts that might embarrass or prejudge the criminal proceedings, noting the trial court is competent to determine issues of fact and law that may prejudice the appellant.
Whether the State Counsel who appeared before the High Court was improperly on record
No merit; any State Counsel employed by or attached to the DPP's office may appear and make submissions for the respondent
The Court rejected the contention that only a particular State Counsel could act, affirming that representation by any State Counsel attached to the DPP's office is proper. This aligned with Rule 15 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013 as submitted by the respondent.
Legal principles established
#- Oral hearing is not a mandatory requirement for a fair hearing; a court may determine a matter on written submissions and affidavit evidence unless exceptional circumstances require an oral hearing
- Where evidence is by affidavit, a deponent cannot claim denial of the right to be heard merely because no oral evidence was adduced
- Any State Counsel employed by or attached to the office of the DPP may appear and make submissions on behalf of the respondent
- A finding of mistrial can only be made at the conclusion of a trial, not while the trial is on-going
- A party who asserts that the judge failed to consider his authorities bears the burden of proving that assertion, failing which the ground fails
Court orders
#- 1.The appeal is dismissed for lack of merit
- 2.The Court declines to quash the on-going criminal cases being Mumias SPMC Criminal Case No. 93 of 2013 and SPMC Criminal Case No. 126 of 2014
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kakamega
- HC Cr. Petition No. 3 of 2017
- Jurisdiction invoked
- First appellate jurisdiction over an appeal from the High Court in a constitutional petition (Criminal Appeal under the appellate framework); the underlying petition invoked Articles 22(1) and 165(3)(b) of the Constitution
Relief refused
#Quashing of the two pending criminal cases and setting aside the High Court ruling dismissing the petition
No evidence of abuse of power or mistrial; a finding of mistrial can only be made at the conclusion of a trial, and the trial magistrate's court is competent to determine issues arising in the on-going trial
Costs
No costs order made by the Court of Appeal on the appeal; the High Court had dismissed the petition with costs to the respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
For the various reasons stated above, we find that this appeal has no merit and is hereby dismissed. Accordingly, we decline to quash the on-going criminal cases being Mumias SPMC Criminal Case No. 93 of 2013 and SPMC Criminal Case No. 126 of 2014.
Oral/personal hearing is not a mandatory requirement for a fair hearing process unless circumstances are so exceptional that without oral hearing a person cannot put up an effective defence.
A determination of mistrial can only take place at the conclusion of a trial.
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.
We refrain from usurping the powers of the magistrate’s court to exercise its jurisdictional competence to hear and determine the two criminal cases now pending before the court.
Issues in the judgment
#The judgment inconsistently refers to the two criminal case numbers, at one point stating 'Mumias Criminal Cases No. 123 of 2013 and 93 of 2014' whereas elsewhere and in the final orders they are 'Criminal Case No. 93 of 2013 and Criminal Case No. 126 of 2014'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Patrick Wanzala Mulwoto v Director of Public Prosecutions [2019] KECA 426 (KLR)", Case Analysis (2019). Criminal Appeal No. 182 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/426/eng@2019-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.