https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11624

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI.** **CRIMINAL DIVISION** **CRIMINAL APPEAL NO. E237OF 2022.** **BULENT GULBAHAR------------------------------------------1ST APPELLANT** **PARAGON ELECTRONICS LIMITED--------------------2ND APPELLANT** **VERSUS** **OUSAINOU NGUM--------------------------------------------1ST RESPONDENT** **KHADIJATOU FRANCESS NGUM-----------------------2ND RESPONDENT** **DIRECTOR OF PUBLIC PROSECUTIONS------------3RD RESPONDENT** **DIRECTORATE OF CRIMINAL INVESTIGATIONS---------------------------------------------------------------------------------------------4TH RESPONDENT** ***(Being an Appeal from the Ruling and Orders of Hon. Bernard Ochoi S.P.M delivered on 8th December 2022 at Milimani Magistrates Court in MCCRMISC E2434 of 2021).*** **BULENT GULBAHAR………………………..………..1ST APPLICANT** **PARAGON ELECTRONICS LIMITED........................2ND APPLICANT** **VERSUS** **OUSAINOU NGUM…………………………………….1ST RESPONDENT** **KHADIJATOU FRANCESS NGUM………………2ND RESPONDENT** **DIRECTOR OF PUBLIC PROSECUTIONS………3RD RESPONDENT** **DIRECTORATE OF CRIMINAL INVESTIGATIONS………..….4TH RESPONDENT** **RULING** 1. The appellant in this matter seeks to challenge a Ruling by the Senior Principal Magistrate Hon. B.M Ochoi delivered on 8th December 2022 in which he declined to grant leave to the appellants to institute private prosecution. 2. The Memorandum of Appeal by the appellant is dated 14th December 2022 and received in court in 20th December 2022. The Memorandum of appeal raises the following grounds 3. The trial magistrate erred in finding that the Appellants' application dated 8th June 2021 did not meet the prerequisite for granting of the orders sought in the said application. 4. The trial magistrate erred in failing to find that the Appellants gave sufficient evidence to grant the orders sought in the application dated 8th June 2021. 5. The trial magistrate erred in finding that the Appellants' application dated 8th June 2021 was premature, despite the fact that the Appellants made a complaint to the police on 22nd December 2020 and accorded the police a reasonable opportunity to commence or take over the criminal complaint prior to filing the said application. 6. The trial magistrate erred in failing to find that the 4th Respondent in coalition with the police was the one seized with the mandate to take up the criminal complaint and not the Appellants to follow up on the complaint or file an appeal with the office of the OCS or OCPD. 7. The trial magistrate filed to totally consider the Appellants' evidence and submissions on record, hence arriving at an erroneous decision that the Appellants never supplied the 3rd and 4th Respondents with relevant documents, information and statements to allow them carry out their mandate. 8. The trial magistrate erred in fact and in law in considering and allowing on record the Replying Affidavit filed by the law firm of Prof. Albert Mumma Advocate on behalf of the 1st and 2nd Respondents, despite the said law firm not being properly on record for the said Respondents. 9. The trial magistrate erred in fact and in law in considering and allowing on record the Replying Affidavit filed by the 1st and 2nd Respondents, despite the same being irrelevant, unprocedural and inconsequential to the Appellants' application dated 8th June 2021. 10. The trial magistrate erred in fact and in law in considering and allowing on record the Replying Affidavit sworn by the 1st Respondent on behalf of the 2nd Respondent, yet the authority alluded to be given in swearing the said Affidavit has not been proved. 11. The trial magistrate erred in fact and in law in considering and allowing on record the defective Replying Affidavit ostensibly sworn on behalf of the 3rd Respondent by one James Gachoka (an officer from the ODPP). 12. The trial magistrate erred in fact and in law in holding that the Replying Affidavit sworn by James Gachoka on behalf of the 3rd Respondent is not defective and that the said deponent was competent to swear the said Affidavit. 13. The trial magistrate erred in fact and in law in considering the 1st and 2nd Respondents' explanations on their culpability in response to the Appellants' application dated 8th June 2021, contrary to the merit of the said application which shows that the ODPP and the police have unreasonably failed to investigate and/or to prosecute. 14. The trial magistrate erred in fact and in law in considering and allowing on record the 4th Respondent's Replying Affidavit despite the same being purportedly drawn by the "Office of the Director of Public Prosecution" who are not on record and/or ought not to be on record in this matter for the 4th Respondent. 15. The trial magistrate erred in fact and in law in considering and allowing on record the 4th Respondent's purported Replying Affidavit despite the fact that the powers and functions of the ODPP does not extend to acting for or representing the state (read the police) in matters where a state organ is sued. 16. The trial magistrate erred in fact and in law in failing to appreciate the fact that the office of the 3rd and 4th Respondent are independent and the purported representation of the 4th Respondent by the ODPP is unlawful and *ultra vires.* 17. The trial magistrate erred in fact and in law in holding that the Replying Affidavit sworn by Tabitha Achieng on behalf of the 4th Respondent is not defective and that the said deponent was competent to swear the said Affidavit. 18. The trial magistrate erred in law by failing to note and take into account the conflict of interests and apparent bias by the DPP holding brief for the accused advocate. 19. The 1st and 2nd Respondents raised a preliminary objection urging this court not to admit the appeal to hearing on the basis that : 20. The memorandum of appeal filed by the appellants is not the correct document for initiation of an appeal before the High court in a criminal matter 21. The 1st and 2nd respondent argued that the memorandum of appeal when it was filed but it was served on 24th January 2023 22. Further the 1st and 2nd respondent contended that the ruling appealed against was delivered on 8th December 2022 and that service of the memorandum of appeal was done out of time. 23. Further, within the preliminary objection Counsel Oboko also sought leave to file a supplementary record of appeal to bring on board documents filed by the 1st and 2nd respondents in the lower court 24. Mr. Ataka counsel for the appellants submitted that they filed a memorandum of appeal dated 14th December 2022 and that he erroneously intituled the intended Petition of appeal as a Memorandum of Appeal a matter he argued was a mistake of form which does not go to the route of the dispute before court. 25. According to Mr. Ataka the error is curable by way of amendment and he cited Section 350 (2) (iv) of the Criminal Procedure Code. Counsel pleaded with the court to allow the appellants to amend the memorandum to read a petition of Appeal instead of striking it out. 26. Further, Mr.Ataka argued that the respondents would not suffer any prejudice the court were to allow an amendment and he cited Article 159 (2) (d) of the Constitution in support of his argument. According to Mr. Ataka the decision appealed against was delivered on 8th December 2022 and the appeal on 16th December 2022 although the same was served on 23rd January 2023. 27. According to counsel for the appellants Section 349 and 350 of the CPC stipulate a14 day period for the filing of the appeal thus having the appeal on 16th December 2022 they had complied with the law. Counsel further submitted that there is no specific timeline set for service of the appeal once it is filed thus according to the appellants the objection to the admission of the appeal on that score by the respondents was unmerited. 28. In any case the appellants argued that a delay in the service of the appeal, if any, should not drive the appellant from the seat of judgment. Counsel urged the court to dismiss the preliminary objection in its entirety. 29. Mr. Mogere prosecution counsel supported the position taken by Mr. Oboko although he invited the court to consider whether the defect identified by Mr. Oboko was a mere technicality under Article 159 (2) (d). Mr. Oboko in a rejoinder to the arguments by the appellant’s counsel urged the court not to allow the amendment and find that the appeal was not properly filed and that it was filed out of time. 30. Counsel urged the court to uphold the timelines set under Section 349 of the Criminal Procedure Code and further find that under Section 350 (2) (i) should be by way of a notice which the appellant had not done thus the appeal should be rejected. **ANALYSIS AND DETERMINATION** 1. The jurisdiction of this court to hear and determine the appeal is determined by the appeal being filed within the statutory period or within the enlarged period of time with leave of court. The appellants in this case filed the appeal within time. 2. The decision appealed against was delivered on 8th Dec 2022 and counsel for the appellants argued that they filed the appeal on the 16th Dec 2022. 3. The Memorandum of Appeal on record however shows that it was received by the court on 20th Dec 2022 as per the stamp appearing on the face of the document. 4. Section 349 of the Criminal Procedure Code provides**;-** Limitation of time of appeal 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 thebjudgment or order appealed against, and a copy of the record, within a reasonable time of applying to the court therefor. 1. The appellants were therefore within time in filing the appeal as per the provisions of Section 349 of the Criminal Procedure Code. The section does not address the question of service upon the respondent thus once an appeal is filed the appellant is deemed to be properly before the court by dint of the that filing. 2. The Supreme Court of Kenya in **SC Appl No 38 of 2014 between**[***TSC vs Simon Kamau and 19 Others***](http://kenyalaw.org/caselaw/cases/view/116867/)**,** adopted its earlier decision in **Nicholas Kiptoo Arap Korir Salat vs the IEBC & 7 Others SC Appl No 16 of 2014** and stated: “To file an appeal out of time and seek the court extending time is presumptive and inappropriate. No appeal can be filed out of time without leave of Court. Such filing renders the “document” so filed a nullity and of no legal consequences. Consequently, this court will not accept a document filed out of time without leave of the court. The SC further held that a document (Petition filed out of time without leave of court is irregular and unknown in-law and the same should be struck out. Where one intends to file an appeal out of time, what he can do is to annex the draft intended Petition of Appeal for the court’s perusal when making his application for extension of time, and not to file an appeal and seek to legalise it.”(66)Article 159 (2) (b) of the [*Constitution*](https://new.kenyalaw.org/akn/ke/act/2010/constitution) cautions courts against permitting injustice through delays, in the following terms: (a)… .(b)Justice shall not be delayed (67)Thus, the stand point of the [*Constitution*](https://new.kenyalaw.org/akn/ke/act/2010/constitution) is that, delayed justice amounts to injustice and the courts which are the dedicated mechanism for the delivery of justice, have an obligation to see to a steady pace of litigation, terminating within a reasonable time frame. This is the context in which article 259(8) of the [*Constitution*](https://new.kenyalaw.org/akn/ke/act/2010/constitution) is to be seen, it thus prescribes: “If a particular time is not prescribed by this constitution for performing a required act, the act shall be done without unreasonable delay, and as often as an occasion arises.”(68)From the record, it appears to us that the applicant had no intention of appealing, the appellant did take definite steps towards implementing the judgment of the Court. The desire on the appellant’s part to lodge an appeal is not even evident, and hardly any initiative was taken to secure the right of appeal. The three-year period that elapsed is, in the circumstances, to be regarded as unreasonable delay, which is inconsistent with a quest for justice before this Court.” [Emphasis added]. 1. The appellants in this matter were not guilty of delay and did not therefore need leave of the court to file the appeal. 2. The 1st and 2nd respondents have taken issue with the intituling of the appeal as a ***“Memorandum of Appeal’’*** as opposed to a ***“Petition of appeal”.*** The two respondents urged the court to consider that to be a grave error that should lead to the striking out of the appeal. 3. The respondents urged the court to find that the error rendered the appeal incapable of admission by this court and should therefore be struck out or summarily rejected. 4. The appellants argued that the intituling was an error by counsel and that should not lead the court to reaching the drastic decision of striking out the appeal. The appellants argued that it is an error of form curable by way of amendment which should not be used to drive the appellants out of the seat of judgment. 5. The appellants relied on Article 259 (2) (d) and urged the court to allow them to amend. 6. The respondents were of the view that an amendment could only occur within the strict provisions of Section 350 (2) (i) and only on notice which the appellant had not done. The respondents urged the court to decline the request for amendment. 7. The court is alive to the long-held principle that mistakes of Counsel should not be visited on an innocent client. 8. It is also an acknowledged fact in the practice of the law that people do err in the line of duty. The courts too do err and the question that should occupy the mind of a court in determining the legal effect of an error should be the prejudice that the error causes the opposing party otherwise a court should in my view not be too quick to find any error however small sufficient enough to deny a party the right to be heard. 9. In **BELINDA MURAI & 9 OTHERS V. AMOS WAINAINA** (1981) JELR 105782 (CA) Madan JA had this to say;- ***“A mistake is a mistake. It is no less a mistake because it is an unfortunate slip. It is no less pardonable because it is committed by senior counsel though in the case of a junior counsel the court might feel compassionate more readily. A blunder on a point of law can be a mistake. The door of justice is not closed because a mistake has been made by a person of experience who ought to have known better. The court may not forgive or condone it but it ought certainly to do whatever is necessary to rectify it if the interests of justice so dictate. It is known that courts of justice themselves make mistakes which is politely referred to as erring in their interpretation of laws and adoption of a legal point of view which courts of appeal sometimes overrule. It is also not unknown for a final court of appeal to reverse itself when wisdom accumulated over the course of the years since the decision was delivered so requires. It is all done in the interests of justice. A static*** ***system of justice cannot be efficient. Benjamin Disraeli said change is inevitable. In a progressive country change is constant. Justice is a living, moving force. The role of the judiciary is to keep the law marching in time with the trumpets of progress.*** 1. The trumpets of progress in this country started ringing in the early 90s with the clamor for a new constitutional dispensation that would allow greater freedoms to its people and access to justice. The trumpets kept ringing at times at a great cost of human lives until the 4th August 2010 when Kenyans in one accord voted decisively in a referendum that ushered a new constitutional order that would receive the stamp of authority in a colourful promulgation event on 27th August 2010 opening a new chapter in Kenya. 2. It was through this Constitution that Kenyans decided that the right to Access to justice had to find a place in our Bill of Rights chapter and that was realized through the inclusion of Article 48 of the Constitution. 3. The spirit of the Article is to allow the citizenry greater access to justice and the courts must robustly make this a Constitutional reality and not a mere aspiration. 4. The intituling of an Appeal as a “memorandum of Appeal’’ as opposed to “a petition of appeal” should not without more see a party denied access to this court. 5. The error in this court’s view would amount to an undue technicality because the body of the document spells out the grievance by the appellant. 6. It is a pardonable mistake under Article 159 (2) (d) of the Constitution and curable by way of amendment. 7. The Court of Appeal in **Peter Edukon v Republic [2006] KECA 123 (KLR)** had this to say on the power of summary rejection of appeals;- ***“The power of summary rejection of an appeal under*Section 352 (2)*of the Criminal Procedure Code must be strictly limited to the clearest of cases and must be brought only on the ground that the conviction is against the weight of evidence or that the sentence is excessive. This is a point that has been considered by this Court in its various decisions. In*Okello v. R*[2003] KLR 205 at page 207 this Court stated:*** ***“The power of summary rejection of an appeal under section 352 (2) of the Criminal Procedure Code is strictly limited to cases where the appeal is brought only on the ground that the conviction is against the weight of evidence or that the sentence is excessive. See John Nderitu Mwangi & John Gichohi Wachira v Republic (1982 – 88) 1 KAR 276. These principles were earlier inunciated (sic) in cases like Obiri v Republic [1981] KLR 489 and Kariuki v Republic [1981] KLR 14”.*** ***Having considered the grounds set out by the appellant in his first appeal to the superior court, we are of the view that those grounds do show that the issues raised were not confined to weight of evidence only. We think the appellant was entitled to the benefit of a full hearing by the superior court.*** ***For the foregoing reasons, this appeal is allowed and the summary rejection of the appellant’s appeal in the superior court is set aside and a direction is given that the appellant’s appeal to that court should be returned for a judge to admit it to hearing and we so order. Those shall be our orders.”*** 1. The matters raised in this matter by the respondents do not meet the threshold for summary rejection of an appeal. To resort to the summary rejection of the appeal would be a very drastic action and against the interests of justice. It would be tantamount to driving the appellant from the seat of justice on account of minor procedural infractions which can be remedied without any prejudice to the respondent. 2. The court finds that the appeal was filed within time and that the word “Memorandum’’ appearing on the Memorandum of Appeal filed on 20th December 2022 may be accordingly amended to read “Petition”. 3. The age of this appeal calls for an expeditious disposal of the same thus this court directs the appellant to immediately amend the Memorandum of Appeal and serve the parties within 7 days of the order of the court. 4. The appeal file shall be immediately placed before this court for admission of the Appeal and directions upon the filing of the amended document. 5. Mention for compliance on 15th July 2026. 6. It is so ordered. **DATED, SIGNED and DELIVERED VIRTUALLY at NAIROBI this 22ND day of JUNE 2026**. **A. M. MUTETI** **JUDGE** **In the presence of:** Court Assistant: Habiba Ms Ochieng for the Appellant Obok for the 1st & 2nd for Respondent Mogere for 3rd & 4th Respondent