[2014] KEHC 8480 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL DIVISION

CRIMINAL APPEAL NO.63 OF 2014

JOHN NJENGA KAMAU…….……………………….……APPELLANT

VERSUS

REPUBLIC………………………………..........……........RESPONDENT

RULING

The Appellant, John Njenga Kamau was aggrieved by the decision of the trial court to put him on defence on the charge of obtaining money by false pretence contrary to Section 313of the Penal Code. The Appellant faulted the trial court, inter alia, for failing to give him an opportunity to make his submission before he was put on his defence. Pending the hearing and determination of the appeal, the Appellant applied to have the proceedings before the Chief Magistrate’s Court, Nairobi in Criminal Case No.225 of 2010 stayed. The application is supported by the grounds stated on the face of the application. In essence, the Appellant states that he would be prejudiced if the trial court were to proceed with the case, because, he was of the view that, had he been given the opportunity to make submission on whether he had a case to answer, the court would have reached a different determination than it did.

The application is opposed. Caroline Kimiri, a prosecution counsel in the Director of Public Prosecution’s Office, swore a replying affidavit in opposition to the application. She was of the view that the application was premature and an abuse of the due process of the court. She stated that the Appellant had not demonstrated that any of his constitutional right to fair trial had been infringed in the trial. She deponed that the Applicant would suffer no prejudice if the case is heard to its logical conclusion. She reiterated that it is to the public interest that criminal cases be heard and concluded without parties seeking intervention of the appellate court at an interlocutory stage.

At the hearing of the application, this court heard oral rival submission made by Mr. Mathenge for the Applicant and by Ms. Kimiri for the State. Learned counsel essentially reiterated the contents of the application and the affidavits sworn in support and in opposition thereof. As stated earlier in this Ruling, the Applicant seeks to stay proceedings before the trial court pending the hearing and determination of his appeal before this court. The appeal is interlocutory. The Applicant was dissatisfied with the Ruling made by the trial court in the course of the trial. The hearing of the case has not been concluded. Under Section 347(1)(a)of the Criminal Procedure Code:

“Save as in this Part provided –

(a) a person convicted on a trial held by a subordinate court of the first or second class may appeal to the High Court;….”

Section 354(3) of the Criminal Procedure Code, the High Court has the following powers when hearing an appeal:

“the court may then, if it considers that there is no sufficient ground for interfering, dismiss the appeal or may –

(a) in an appeal from conviction –

(i) reverse the finding and sentence, and acquit or discharge the accused, or order him to be tried by a court of competent jurisdiction; or

(ii) alter the finding, maintaining the sentence, or, with or without altering the finding, reduce or increase the sentence; or

(iii) with or without a reduction or increase and with or without altering the finding, alter the nature of the sentence;

(b) In an appeal against sentence, increase or reduce the sentence or alter the nature of the sentence;….”

The court has further powers to consider appeals arising out of an acquittal. It is clear from the foregoing provisions of the Criminal Procedure Code that only a party who is convicted can file an appeal to this court. The Criminal Procedure Codedoes not envisage a situation where an accused or the prosecution may appeal to this court from an interlocutory ruling made by the trial court in the course of the trial. This court’s considered view is that the reason why such appeals are not allowed is deliberate and is not a lacunae in the law. If parties to a criminal trial were allowed to appeal against any interlocutory ruling made during trial, there is a possibility that parties to such trials, especially accused persons, may use the appeal process to frustrate the hearing and conclusion of the criminal case. This position is supported by the finding made by the Court of Appeal in Thomas Patrick Gilbert Cholmondeley –vs- Republic [2008] eKLR. At page 19 of its judgment, the court had this to say:

“In ordinary criminal trials, there is generally no interlocutory appeals allowed for Section 379(1) of the Criminal Procedure Code allows only appeals by persons who have been convicted of some offence. The Appellant has not been convicted of any offence. As far as we understand, the position the basis of an appeal cannot be that an order made in the course of a trial is highly prejudicial to an accused person;... the fact that a trial Judge has made an adverse ruling against an accused person in a criminal trial does not and cannot mean that the Judge will inevitably convict. The Judge might well acquit in the end and the adverse ruling, even if it amounted to a breach of fundamental rights, falls by the way side and causes no harm to such an accused person.”

Section 379(1) of the Criminal Procedure Code of course deals with appeals from the High Court to the Court of Appeal. The above reasoning, however, applies mutatis mutandis to appeals filed to the High Court from the subordinate court.

It is clear from the foregoing that the order of stay of proceedings sought by the Applicant cannot be allowed. There is no legal basis upon which this court can stay proceedings before the trial court because the Appellant has neither been “convicted” nor “acquitted”as envisaged by Sections 347 and 354 of the Criminal Procedure Code. The application therefore lacks merit and is hereby dismissed. The trial before the subordinate court shall proceed from where it reached to its conclusion. It is after the conclusion of the case that the Appellant can legitimately file an appeal to this court depending on the decision of that court. It is so ordered.

DATED AT NAIROBI THIS 20TH DAY OF NOVEMBER 2014.

L. KIMARU

JUDGE