[2023] KEHC 25239 (KLR)

Director of Public Prosecution v Kingele (Criminal Miscellaneous Application E066 of 2023) [2023] KEHC 25239 (KLR) (8 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25239 (KLR)

Republic of Kenya

In the High Court at Machakos

Criminal Miscellaneous Application E066 of 2023

MW Muigai, J

November 8, 2023

Between

Director of Public Prosecution

Applicant

and

Bethwel Mutinda Kingele

Respondent

(Arising from criminal case No.E798 of 2022 from Ruling delivered on the 25/05/2023 by Hon. M. Opanga (SRM) in the Cm’s Court at Kangundo)

Ruling

Notice of motion 1. The (ODPP) Applicant herein filed an Application dated 19th September, 2023 and sought the following orders;a.That the Applicant be granted leave to file an appeal out of time.b.That the Court order that the Petition of Appeal annexed hereto be deemed to have been duly filed.

2. The Application is premised on the following grounds:a.That upon the delivery of the Ruling the complainant approached the applicant with a request for appeal against the said ruling and the applicant was of the view that an appeal had reasonable prospects of success.b.That the Applicant immediately sought to obtain the typed proceedings and ruling before the time lapsed but this was not possible because the same were obtained almost three months after the requisite time for filing an appeal had lapsed.c.That the delay was not occasioned by the Applicant but by the process entailed in obtaining typed proceedings and judgment.

3. The Application is supported by the Affidavit by Martin Mwongera, Prosecution Counsel in the office of ODPP sworn on even date. He stated that the Respondent herein was acquitted under Section 210 of the CPC for the offence of stealing by a person employed in Public Service contrary to Section 280 of the Penal Code.

4. The Prosecution Counsel stated that upon the delivery of the Trial Court Ruling they applied for a certified copy of the proceedings which copy was availed on 24th August 2023, three months after the time stipulated by law.

5. The said delay in obtaining the copies of the proceedings should not be a reason to occasion an injustice on the complainant.

6. The Petition of Appeal raises serious issues of law which need consideration by this Court.

7. The Applicant’s Appeal has good chances of success and the delay in filing the same was not deliberate.

The Draft Petition of Appeal 8. The Applicant in their annexed Petition of Appeal wish to appeal the judgment on the following grounds;1. The Learned Magistrate erred in law in acquitting the Respondent under Section 210 of the CPC of the offence against the overwhelming evidence put across by the prosecution.2. The Learned Magistrate erred in law by failing to note that the evidence adduced by the Prosecution witnesses was well corroborated.3. The Learned Magistrate erred in law and in fact by failing to consider the prosecution evidence in totality.4. The Learned Magistrate erred in law and in fact by not considering that the relief food was found in the Respondent’s house.5. The Learned Magistrate erred in law and in fact in finding that the prosecution failed to prove the charges preferred against the accused person belong any reasonable doubt.

9. The Applicant prays for the following orders:-a.That this Appeal be allowed.b.The Trial Court Ruling of 25th May, 2023 be set aside.c.The order of the acquittal of the Accused person be substituted with an order finding that the Accused person be placed on his defence.

Replying Affidavit 10. The Respondent herein Bethwell Mutinda Kingele filed his Replying Affidavit sworn on 2nd October, 2023 stating as follows:-a.The Trial Court delivered its typed Ruling on 25/05/2023 and that both the proceedings and the Ruling were available to the parties immediately thereafter and he managed to get his certified copies on 30/05/2023. b.After the lapse of the 14 days’ window period for appeal he approached his employer and the process of engaging him kicked off immediately as he had no pending case.c.The Applicant intends to have the Respondent suspended again on account of the current application to appeal out of time.d.That the delay and failure in complying with the mandatory provisions of the law has not been explained.

11. The Application was canvassed by way of Written Submissions.

Written Submissions Applicant’s submissions Dated 12/10/2023 12. The Applicants submitted that the Section 349 of the Criminal Procedure Code states as follows:“An appeal shall be entered within fourteen days of the date of the order or sentence appealed against.Provided that the Court to which the appeal is made may for good cause admit an appeal after the period of fourteen days has elapsed, and shall so admit an appeal if it is satisfied that the failure to enter the appeal within that period has been caused by the inability of the appellant or his advocate to obtain a copy of the judgment or order appealed against, and a copy of the record, within a reasonable time of applying to the court therefor.”

13. Article 159(2) in exercising judicial authority, the Courts and Tribunals shall be guided by the following principles.(d)Justice shall be administered without undue regard to procedural technicalities.

14. Finally it was submitted that the complaint letter was processed on 30th May, 2023 at Nairobi office and later referred to County Director Machakos where it was received on 30th August, 2023 hence causing the inadvertent delay.

Respondent’s submissions dated 27th October, 2023 15. On behalf of the Respondent it is submitted that for one to file a Memorandum of Appeal one do not need to have with him/her the certified copy of the Ruling/Judgment as these documents are essential at the time of compiling the Record of Appeal.

16. The Applicant did not produce any documentary evidence in Court to prove that they had applied to be supplied with the said documents in time but that the Registry delayed in supplying the same.

17. The Respondent had also applied for the typed Ruling and Court Proceedings which documents were supplied to him on 30/05/2023 as evidenced by the certified copy of the Ruling he had annexed. This is therefore clear evidence that these documents were available in May, 2023.

18. The Complaint letter stated by the State in their submissions is new evidence as the argument was never in the application. The applicants did not file any supplementary Affidavit to introduce these new evidence.

19. Reliance is made in the case ofRepublic –vs- Ahmed Fakir Mohammed [2021] eKLR where A. Ong’indo, LJ held as follows:“… This Court however notes that the Applicant did not annex a copy of the request for certified copies of the proceedings or judgment. This court further notes that the copy of judgment annexed to the Respondent’s affidavit in response was certified on 7/04/2021 while the Applicant’s Notice of Motion application is dated 9/07/2021 and file don’t he same date. Contrary to the applicant’s averment of delay in being supplied with copies of the proceedings and judgment, the judgment was available almost 3 months prior to filing of the application for leave to file an appeal out of time. This Court has also considered the draft Petition of appeal annexed to the Notice of Motion application where four grounds of appeal have been set out therein. However, this court has not found sufficient reasons for the delay to exercise discretion in favour of the applicant. In conclusion, the application has no merit and it is hereby dismissed.”

Determination 20. I have considered the Application, the affidavits on record and the submissions of the parties. The main issue for determination is whether this court should allow the Applicants to file the Appeal out of time.

21. Section 349 CPC on Limitation of time of appeal provides;An appeal shall be entered within fourteen days of the date of the order or sentence appealed against:Provided that the court to which the appeal is made may for good cause admit an appeal after the period of fourteen days has elapsed, and shall so admit an appeal if it is satisfied that the failure to enter the appeal within that period has been caused by the inability of the appellant or his advocate to obtain a copy of the judgment or order appealed against, and a copy of the record, within a reasonable time of applying to the court therefore.

22. The Supreme court in the case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR stated as follows;“Extension of time being a creature of equity, one can only enjoy it if he acts equitably: he who seeks equity must do equity. Hence, one has to lay a basis that he was not at fault so as to let time to lapse. Extension of time is not a right of a litigant against a court, but a discretionary power of the courts which litigants have to lay a basis where they seek courts to grant it.

23. The Supreme Court in the same case then set out the conditions for extension of time to file an appeal as follows;i.Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court;ii.A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the courtiii.Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis;iv.Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;v.Whether there will be any prejudice suffered by the respondents if the extension is granted;vi.Whether the application has been brought without undue delay; andvii.Whether in certain cases, like election petitions, public interest should be a consideration for extending time.

24. The Applicant deposed that the Ruling on acquittal under Section 210 CPC was delivered on 25/5/2023 and the typed proceedings and said Ruling were not procured promptly as there was delay in obtaining the same on time to file intended appeal within 14 days.In the meantime, a letter of complaint dated 25/5/2023 from Isinga Residents in Kangundo to the Office of Director of Public Prosecution on displeasure of acquittal of the Respondent alleging overwhelming evidence was presented during trial was sent to Head Office -Nairobi and processed and later rerouted to the County Director, Machakos and hence caused delay in taking action.

25. The inadvertent delay was caused by the correspondence that was first sent to Nairobi , then sent to Machakos for action. Consequently, the typed proceedings were availed later.The Respondent submitted that the application was based on fishing expedition and not facts and the issue of the letter of complaint was not disclosed until later. The Application was based on bad faith and full of falsehoods and meant to mislead the Court to grant unwarranted orders. The Respondent stated that filing memorandum of appeal, the certified copy of Ruling was not necessary and typed proceedings would be required on filing record of Appeal. The Respondent will be prejudiced as he moved on with his life and approached the employer for reinstatement and is on duty as he has no pending case. Allowing the application will be a big blow.

26. This Court has considered the rival submissions on allowing or dismissing the application to file appeal out of time by the Parties.The Applicant posits that the intended appeal has high likelihood of success and raises issues of law that require consideration on appeal.

27. The delay in obtaining proceedings and Ruling was inadvertent and the letter posted to Nairobi instead of Machakos caused further delay and the delay should not be blamed on the applicant.

28. The Respondent asserted that litigation must come to an end, he was acquitted and back to work and moved on with his life.

29. This Court has considered that the letter was/is the genesis of delay in pursuing the appeal as it was sent to Nairobi then sent to Machakos for action. The Applicant sought Ruling and Proceedings thereafter and naturally the statutory 14 days lapsed. Article 50 q of CoK 2010 and Section 347 CPC.The right of appeal is granted by Article 50 q of CoK 2010 and Section 347 CPC

30. Grant of appeal out of time is at the discretion of the Court when it is proved that there was reasonable ground that caused delay. Extension of time to facilitate filing appeal out of time is an equitable remedy that is only available to a deserving party after the burden of laying a basis to the satisfaction of the court is discharged. The delay must not be unreasonable delay and no prejudice should be occasioned on the Respondent.

31. In the instant case, the letter dated 25/5/2023 is proof of cause of delay in obtaining typed Ruling and Proceedings. The delay cannot fairly be visited on ODPP. In light of public interest the appeal should be considered on merit and thus the leave to appeal out of time is granted. To safeguard rights of the Respondent the appeal shall be filed and pleadings filed and served and directions on the disposal of the appeal shall be within 90 days hereof.It is so ordered.

RULING DATED, SIGNED AND DELIVERED AT MACHAKOS THIS 8TH DAY OF NOVEMBER 2023 (VIRTUAL/PHYSICAL CONFERENCE).M.W. MUIGAIJUDGEIn the presence of:Mr. Mwongera - for the ApplicantMr. Nzuki - for the RespondentPatrick/Geoffrey- Court Assistant(S)