[2023] KEHC 27028 (KLR)

Gideon v Director of Public Prosecutions; Fredrick Odhiambo alias Fred Orugi t/a Yiro Enterprises & 2 others (Interested Parties) (Criminal Appeal E005 of 2023) [2023] KEHC 27028 (KLR) (Crim) (17 November 2023) (Ruling)

Neutral citation: [2023] KEHC 27028 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Appeal E005 of 2023

NW Sifuna, J

November 17, 2023

Between

Kioko Mike Sonko Mbuvi Gideon

Appellant

and

The Director of Public Prosecutions

Respondent

and

Fredrick Odhiambo alias Fred Orugi t/a Yiro Enterprises

Interested Party

ROG Security Limited

Interested Party

Antony Otieno Ombok alias Jamala

Interested Party

Ruling

1. The Appellant Kioko Mike Sonko Mbuvi Gideon is the 1st Accused in Milimani CM’s Anti-corruption Case No. 31 Of 2019 Republic V. Kioko Mike Sonko Mbuvi Gideon & 3 Others. The case is on-going before the Milimani Anti-Corruption Chief Magistrate’s Court. Dissatisfied by the trial court’s order allowing the prosecution to produce certain evidence that he had objected to, he filed the Appeal herein to reverse that action.

2. He later filed in this Appeal a Notice of Motion Application dated 29th September 2023, by which he sought a stay of the said criminal proceedings of the trial court. The Application is based on the ground that should the said proceedings of the trial court continue, the Appeal will be rendered nugatory and become an academic exercise. The Application was heard orally, after the parties by this Court’s directions filed their respective Skeleton Arguments as well as supporting legal authorities.

3. Interestingly it was a lay Application that did not cite any provisions of law. It is unclear how this escaped the mind of a senior and seasoned Advocate such as Mr Nyakundi, who filed the Application for the Appellant. The Application is dated 31st August 2023, and is supported by a Supporting Affidavit sworn by the Appellant on even date.

4. The Respondent opposed the Application through the Grounds of Opposition dated 12th October 2023 as well as the Replying Affidavit of Christine Nanjala a Senior Assistant Director of Public Prosecutions, sworn on even date. Earlier in these proceedings, I ruled that the Interested Parties (represented by Ms Atukunda), although the Appellant’s co-accused in that criminal case, cannot participate or file anything in this Appeal. That was for reason that they had themselves not appealed the trial court’s impugned action. For that reason, they abided, and subsequently neither participated nor filed anything in this Application or in the Appellant’s Appeal herein.

Determination 5. This Ruling is on the Appellant’s said Application. I have considered the Application together with the said Supporting Affidavit; as well as the said Grounds of Opposition and the said Replying Affidavit. I have further considered the parties’ rival pleadings filed herein, as well as the oral arguments of Mr Nyakundi for the Appellant, and Mr Kabinga for the Respondent. I have also considered the relevant law, applicable legal principles, as well as the demands for justice and fair play.

6. Since the judgment on the Appeal itself, is scheduled for 28th February 2024, it is only reasonable and fair and just, that pending the said judgment, there be a stay of proceedings in the said case in the trial court (i.e Milimani CM’S Anti-corruption Case No. 31 Of 2019). This stay is merited also because the Appeal was admitted, and has timeously proceeded by way of written submissions, and has the said judgment date.

7. In my considered view, the need to stay those proceedings, far outweighs the need for further proceedings therein, as well as the inconvenience and prejudice that the trial court and the Respondent are likely to suffer as a result of the stay. In the aforegoing circumstances, it will be imprudent for the said case to be proceeded with while this Appeal is pending a judgment that this Court has itself reserved for 28th February 2024. Which is only a few weeks away.

8. The Appellant’s Application for stay pending determination of this Appeal, is therefore hereby allowed in terms that the proceedings in the criminal case in the trial court are hereby stayed until this Court has rendered its scheduled judgment on the Appellant’s Appeal.

9. I further order that an order be extracted from this Ruling and be served on the Chief Magistrate, Milimani Chief Magistrate’s Anti-Corruption Court.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 17TH DAY OF NOVEMBER 2023. PROF (DR) SIFUNA NIXONJUDGE