https://new.kenyalaw.org/akn/ke/judgment/keca/2026/914

Coco & 2 others v Republic & 7 others (Civil Appeal (Application) E029 of 2025) [2026] KECA 914 (KLR) (15 May 2026) (Ruling) Neutral citation: [2026] KECA 914 (KLR) Republic of Kenya In the Court of Appeal at Malindi Civil Appeal (Application) E029 of 2025 AK Murgor, KI Laibuta & GW Ngenye-Macharia, JJA May 15, 2026 Between Daniel Lo Coco 1st Applicant Massimo Nativi 2nd Applicant Rafiki Limited 3rd Applicant and Republic 1st Respondent Armeno Modugno 2nd Respondent Maria Grazia Moscone 3rd Respondent Fiorenzo Girola 4th Respondent Rosy Tettamanti 5th Respondent Rita Nappo 6th Respondent Chief Magistrates Court, Kilifi 7th Respondent Hon. Attorney General 8th Respondent ((An Appeal against the Rulings of the High Court of Kenya at Malindi (M. Thande, J.) delivered on the 25th April 2025, in Malindi High Court Constitutional Petition No. E006 of 2024) Ruling 1.The Applicants filed a Notice of Motion dated 30th May 2025 pursuant to Rule 86 of the Court of Appeal Rules, 2022 seeking orders, inter alia, that the appeal by Director of Public Prosecutions, the 1st Respondent herein, be struck out with costs. 2.The Applicants’ Motion is brought on several grounds that the 1st Respondent is not a party in Malindi High Court Constitutional Petition No. E006 of 2025, and did not lodge a Notice of Appeal against the Rulings delivered and orders made on 25th April 2025; and that, without a valid Notice of Appeal, this Court had no jurisdiction to determine the appeal. 3.It was further contended that the rulings appealed against were not issued in respect of criminal proceedings in the High Court, but were brought by way of a Constitutional Petition to enforce the Applicants’ fundamental rights and freedoms that were violated and continue to be violated by the Director of Public Prosecutions, the Inspector-General of Police, the Director of Criminal Investigations, one David K. Siele and the 4th to 10th Respondents; that the 1st Respondent cannot appeal against the Attorney-General of the Republic of Kenya, the 10th Respondent, for the reason that under Article 156(4) of the Constitution, the Attorney-General is the Principal Legal Adviser to the Government and represents the National Government in courts and other legal proceedings to which the National Government is a party; and that the 1st Respondent is not a party in the Petition in the High Court and, for this reason, the Notice of Appeal as filed by the 1st Respondent was invalid. 4.It was further asserted that the 1st Respondent filed a Memorandum of Appeal, but failed or neglected to file the Record of Appeal as required under Rule 89 of the Court’s rules; and that, in the absence of the Record of Appeal, there is no appeal before the Court and, without it, this Court lacks jurisdiction. 5.It was also contended that, since the 1st, 2nd and 3rd Respondents are seeking to challenge the jurisdiction of this Court to determine the appeal and Civil Application No. E018 of 2025, and that it is convenient that both applications be heard together and be determined in the same Ruling. The 1st Respondent’s Civil Application No. E018 of 2025 for stay of execution is predicated upon the existence of this appeal. 6.The Motion was supported by the affidavit of F. Kinyua Kamundi, counsel for the Applicants, who largely reiterated the grounds on the face of the application and urged that the appeal be struck out for the reason that no Record of Appeal had been lodged. 7.The deponent filed a Further Affidavit dated 7th October 2025 which, upon request by the Applicants’ counsel, was expunged from the court record on 15th December 2025 prior to the hearing of the application. 8.In response, Joseph Mwangi Kamanu, a prosecution counsel of the 1st Respondent, opposed the application and, in his replying affidavit, it was deposed that no prejudice would be suffered by any party were the appeal to proceed in the name of the “Republic” instead of the name of the Director of Public Prosecutions. It was further contended that, this notwithstanding, the 1st Respondent had already filed an application for leave to amend the title to the appeal. 9.Regarding the motion, it was deponed that the Notice of Appeal was filed on 28th April 2025 following delivery of the High Court ruling on 25th April 2025; that, on 30th April 2025, the 1st Respondent applied for certified copies of the Record of appeal and submitted the request through the ODPP Uadilifu system under reference ODPP/MSN/485043 at 3:34 p.m., where the system confirmed successful submission to the Judiciary. Further, it was deponed that, on 2nd May 2025, he visited the Civil Division Registry of the Malindi High Court to confirm whether the letter had been printed for action, only to find that it did not appear on the CTS system; and that, on 29th July 2025, the 1st Respondent received the certified proceedings and immediately applied for a Certificate of Delay pursuant to Rule 84(1). On 31st July 2025, the Deputy Registrar of Law Courts issued the Certificate of Delay, and subsequently, on 4th August 2025, the 1st Respondent filed the Record of appeal through the Judiciary CTS system and served all parties to the appeal. 10.The deponent opposed the Motion to strike out the appeal and asserted that the appeal should be heard and determined on its merits, particularly because the High Court had issued far reaching orders that barred investigations against the 1st, 2nd and 3rd Applicants. This Court was urged to dismiss the Motion and proceed to determine the appeal on its merits. 11.In response, Cosimo Armeno Modugno, the 2nd Respondent, opposed the application and deposed that it was fatally defective, misconceived, and incompetent. 12.On behalf of the 3rd, 4th, 5th and 6th Respondents, Rita Nappo, the 6th Respondent, deposes that, under the Kenyan criminal justice system, complainants in criminal matters are represented by the Director of Public Prosecutions, who leads evidence and prosecutes cases in the name of the Republic; that, although the Notice of Appeal is signed by the Director of Public Prosecutions, the reference to the “Republic” is merely a typographical slip that can be amended with leave, and that an application to amend was pending before the Court. 13.Further, it was deponed that Article 22(2) (c) of the person acting in the public interest to participate in court proceedings, and that the appeal challenges orders of the High Court that affect the mandate of established constitutional bodies, which she considers a matter of public concern; that the Director of Public Prosecutions acts in the public interest in prosecuting criminal matters, and has a duty to defend that interest; and that, in addition, the spirit of the Constitution did not envisage a situation where a party with a demonstrable stake is barred from ventilating their issues in a constitutional petition. It was finally deponed that the Applicants have not established sufficient grounds to warrant the striking out of the appeal. 14.The parties filed written submissions and, when the application came up for hearing, learned counsel Mr. Kinyua appeared for the Applicants, learned counsel Mr. Kamanu appeared for the 1st Respondent and held brief for Mr. Ojwang for the 9th and 10th Respondents, while learned counsel Mr. Ndegwa appeared for the 3rd to 6th Respondents. 15.Relying on oral and written submissions, counsel for the Applicants submitted that they were the successful petitioners before the High Court in Constitutional Petition No. E006 of 2024 where the Court delivered two rulings on 25th April 2025 which stayed further investigations into the sale of villas on Plot in Kilifi Criminal Case No. E328 of 2024. 16.It was submitted that the 1st Respondent, the Director of Public Prosecutions, on behalf of the Inspector General of Police, the Director of Criminal Investigations, and Mr. David Siele were aggrieved by the rulings and had lodged a Notice of Appeal dated 28th April 2025; that the Notice indicated the “Republic” as the Appellant which was not a party to the Petition in the High Court, and that, therefore, it could not lodge a Notice of Appeal, and that neither could the appeal proceed in its name; that, further, the Director of Public Prosecutions cannot rely on a Notice of Appeal filed by persons who were not before the trial court. Counsel cited this Court’s decision in: Chevron (K) Ltd vs Harrison Charo Shutu, Civil Appeal No. 17 of 2016 and Gulam Mariam Noordin vs Julius Charo Karisa, Civil Appeal No. 26 of 2015 for the proposition that failure to lodge a competent Notice of Appeal, within the timelines specified by the rules, bereft the Court of jurisdiction and rendered the Notice of Appeal liable to be struck out. 17.It was further submitted that the 1st Respondent lodged a Memorandum of Appeal on 16th and 17th May 2025 without a Record of Appeal; and that the Record was lodged after they had filed this motion to strike out the appeal. Submitting on the Certificate of Delay, counsel asserted that the 1st Respondent filed for certified proceedings on 30th April 2025, which were ready 2025, and which were collected on the same date, but that he had not received any letter from counsel for the 1st Respondent dated 30th April 2025 bespeaking the typed proceedings, and that the letter was not copied to the Applicants, contrary to the requirement of the proviso to Rule 84; that, in the absence of a proper letter bespeaking proceedings, the Record of Appeal ought to have been filed 60 days after the lodging of the Notice of Appeal and, having been lodged on 4th August 2025 after the Notice, the Record had in effect been lodged out of time. The Court was urged to allow the application and strike out the appeal. 18.On their part, counsel for the 3rd to 6thRespondents opposed the Notice of Motion dated 30th May 2025 and submitted that the application was unfounded because the Director of Public Prosecutions was legally capable of appealing on behalf of the Republic in matters that touch on the exercise of prosecutorial powers. In this regard, counsel relied on Article 157(6) of the Constitution, which empowers the Director of Public Prosecutions to institute and undertake criminal proceedings against any person before any court, and Article 157(10), which guarantees the Director of Public Prosecutions’ independence by providing that he does not require the consent or direction of any person or authority to commence criminal proceedings. To reinforce this position, the case of Republic vs Mohamed Feisal & 2 Others [2014] eKLR was relied upon where the court affirmed that criminal proceedings are conducted in the Republic, and that the Director of Public Prosecutions does not act as an agent of the complainant, but exercises public prosecutorial powers. 19.Also relied upon was the Supreme Court decision in Joseph Lendrix Waswa vs Republic [2020] eKLR, where the Court clarified that the Director of Public Prosecutions acts in the public interest while the victim participates in proceedings as permitted by law. On this basis, counsel argued that the use of the term “Republic” in the Notice of Appeal was not fatal. In any event, it was submitted, that the Director of Public Prosecutions had since filed an application to amend the title in the Notice to reflect “Director of Public Prosecution;” and that this was a simple, curable mistake which did not affect the substantive constitutional issues on appeal. 20.It was urged that the Court dismiss the application to strike out the appeal, asserting that the grounds raised by the Applicants are technical, excusable and incapable of defeating an appeal that raises weighty issues of constitutional interpretation. 21.We have considered the motion, the affidavits in reply and the parties’ submissions. What is before the Court is a Notice of Motion dated 30th May 2025 seeking orders to strike out the 1st Respondent’s Record of Appeal for the reason that it was incompetent since it was erroneously filed in the name of the “Republic” as a party, and because the Record was filed outside specified by this Court’s rules. 22.Before determining the application to strike out, it is necessary to address the question of whether there was a valid Notice of Appeal in existence. The Applicants’ have argued that the reference to the “Republic” instead of the “Director of Public Prosecution” as the Appellant in the Notice rendered it incompetent as the party referred to was a stranger to the appeal, which rendered the Notice of appeal as incompetent. 23.In addressing this issue during the hearing, the Applicant’s counsel abandoned this ground of the motion for the reason that the name of the Appellant indicated on the Notice of Appeal had, by a Ruling of this Court (Ngenye, JA.) dated 21st November 2025, since been amended from “Republic” to “Director of Public Prosecutions” in the title of the Notice. Pursuant to such amendment, this ground was overtaken and became a non-issue for the purposes of the application. As a consequence, the question of incompetence of the Notice no longer arises. 24.Now turning to the central question of whether the Record of Appeal was filed out of time thereby rendering the appeal incompetent, it is not in dispute that the Ruling was delivered on 25th April 2025. It is not also in dispute that the Notice of Appeal was lodged and served on 28th April 2025. The instant Notice of Motion is 30th May 2025. The Applicant's complaint is 1st Respondent lodged a Memorandum of appeal on 17th May 2025 without the Record of Appeal. On the other hand, the 1st Respondent submitted that it lodged and served the Record of Appeal on 4th August 2025. 25.The question that then requires to be determined is whether, by the time the instant application was filed, a finding could be reached that the Record of Appeal was filed out of time. 26.Rule 84 of this Court’s Rules specifies that the Record of Appeal shall be filed within 60 days after the Notice of Appeal has been lodged. In this case, the Notice of Appeal was lodged on 28th April 2025. Thereafter, the 1st Respondent had 60 days within which to lodge the Record, meaning that the Record should have been filed on or before 27th June 2025. The Applicants’ motion was filed on 30th April 2025. A computation of the time between the filing of the Notice and the filing of the motion shows that it was filed before the lapse of the stipulated 60 days for filing of the Record. By that time, the 1st Respondent had 27 days left within which to file the Record of Appeal. As a consequence, having filed the motion before the period for filing the Record had lapsed, essentially rendered the application as having been prematurely filed, with the result that the Applicants’ application to strike out the Record, coming when it did, was unwarranted and unnecessary. 27.We say this because it is not lost on us that the 1st served the Record of Appeal on 4th August 2025, which was after the Motion was filed. And, much as the Applicant has argued that it was lodged out of time and was therefore liable to be struck out, it is of importance to note that any complaint against or application to strike out the Record filed on 4th August 2025 ought to have been brought after it was filed, and not before. 28.In this regard, Rule 86 of the Court’s Rules is instructive. It specifies that:“A person affected by an appeal may, at any time, either before or after the institution of the appeal, apply to the Court to strike out the notice or the appeal, as the case may be, on the ground—a.that no appeal lies; orb.that some essential step in the proceedings has not been taken or has not been taken within the prescribed time:Provided that an application to strike out a notice of appeal or an appeal shall not be brought after the expiry of thirty days after the date of service of the notice of appeal or record of appeal, as the case may be.” 29.The proviso to Rule 86 is patently clear that an application to strike out the Record of Appeal would have had to be brought before the expiry of 30 days but, in any event, “… after the date of service of the notice of appeal or record of appeal…” 30.In this case, the motion to strike out having been filed before the Record was filed, and before the 60 days period for filing had lapsed, we find that the struck out for the reason that it was filed out of time. 31.In sum, the Notice of Motion dated 30th May 2025 is without merit and is hereby dismissed with costs to the 1st to 8th Respondents.It is so ordered. DATED AND DELIVERED AT MOMBASA THIS 15TH DAY OF MAY, 2026.A. K. MURGOR...................................JUDGE OF APPEALDR. K. I. LAIBUTA CArb, FCIArb....................................JUDGE OF APPEALG. W. NGENYE-MACHARIA...................................JUDGE OF APPEALI certify that this is the true copy of the originalsignedDeputy Registrar