https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11767

Kibore v Republic & another (Criminal Appeal E050 of 2025) [2026] KEHC 11767 (KLR) (29 July 2026) (Ruling) Neutral citation: [2026] KEHC 11767 (KLR) Republic of Kenya In the High Court at Kitale Criminal Appeal E050 of 2025 RK Limo, J July 29, 2026 Between Philip Korir Kibore Appellant and Republic Prosecutor and Lilian Salli Chepkwemoi Respondent Ruling 1.The main question raised by ODPP in the preliminary objection dated 24/6/2026 is whether a complainant has an automatic right of appeal where he/she is aggrieved by a decision in a criminal trial. 2.In this appeal, Philip Korir Kibore was the complainant in Kitale CM’s Court Cr. Case No.E1852 of 2025 where Lilian Salli Chepkwemoi (the respondent herein) was the accused charged with the offence of grievious harm contrary to section 234 of the Penal Code. 3.The charge presented to court read that on 18th March 2025 at Olng’atongo police post in Endebess Location Endebes Sub County within Trans Nzoia County the respondent with another not before court unlawfully did grievious harm to the appellant. 4.The respondent admitted the charge and was convicted on her own plea of guilty. The trial court then sentenced her to 3 years in prison and the appellant who was the victim of the offence felt that justice was not served because he felt the sentence was too lenient. 5.He preferred this appeal in person and now the ODPP has raised a preliminary objection dated 24/6/2026 on the following grounds namely;a.That the appellant lacks locus standi to personally file an appeal in criminal cases.b.That this appeal was not filed by the ODPP as required by the law. 6.Mr Mugun for the ODPP submitted that despite the misfortune suffered by the appellant he could not lodge an appeal in person because in his view that is the prerogative of the ODPP. 7.According to him having perused the record, they found no basis to appeal though he at the same time contended that had the convict appealed, then the State would have cross-appealed and sought enhancement of the sentence but maintains that the facts disclosed assault causing harm rather than grievious harm. 8.The appellant has opposed the preliminary objection raised by the State. He through learned counsel Mr Jason Kimani contends that he is now blind as a result of the attack he suffered from the respondent. 9.He contends that when he lodged the appeal, time was running out and he had time left to seek consent from the Office of the Director of Public Prosecution. 10.He contends that the Director of Public Prosecution under Article 157(6) (b) of the Constitution and Section 24(1) of Office of the Director of Public Prosecution Act, the Director of Public Prosecution has powers to take over the prosecution of a criminal case or appeal. 11.The appellant submits that he has been working with Office of the Director of Public Prosecution in this matter and even supplied it with medical documents to show his current medical state. 12.He further contends that the Office of the Director of Public Prosecution advised him to serve the respondent which he did. 13.He submits that it is in the interest of justice for the State to take over the appeal and proceed adding that he is now blind because of the assault and the condition has negatively affected his life as a person and a serving police officer. 14.This court has considered the preliminary objection raised by the ODPP and the response made by the appellant. 15.It is quite apparent from the provisions of Section 347(a) of Criminal Procedure Code that the section gives a convicted person liberty to appeal. Section 348A of the Criminal Procedure Code on the other hand gives the Office of the Director of Public Proseuciton right to appeal against a decision of a trial court. 16.The two provisions are silent in respect to a complainant or the victim of an offence with regard to his right to appeal directly. 17.The Office of the Director of Public Prosecution is expected to act in the interest of the public in the exercise of its powers under the Constitution. Article 157(11) of the Constitution provides as follows;“In exercising the powers conferred by this Article, the Director of Public Prosecutions shall have regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process.” 18.It is therefore expected that where a trial court passes a judgment or sentence deemed unjust the ODPP is expected to act and seek redress in the appellate court on behalf of the complainant or the victim. 19.The provisions of Article 157(6) (b) of the Constitution provides as follows;“Take over and continue any criminal proceedings commenced in any court (other than a court martial) that have been instituted or undertaken by another person or authority, with the permission of the person or authority.”The above indicates that even where prosecution is privately initiated under Section 88 of the Criminal Procedure Code the Office of the Director of Public Prosecution is given mandate to take over the same and either proceed or discontinue but with leave of court under Article 157(8) of the Constitution. This serves as a Constitutional safeguard against bias, malpractice or inaction by the Office of the Director of Public Prosecution. 20.The big question arising therefore is if a complainant is allowed to institute private prosecution with leave of court is there a bar to do the same at appellate stage? This court finds that the answer to that question can only be in the negative and the reasons are as follows;a.Article 27(1) provides;“Every person is equal before the law and has the right to equal protection and equal benefit of the law.”This court takes the view that both an accused person and the victim enjoy equal rights in terms of protection of the law.b.The right to access justice under Article 48 of the Constitution applies equally to both the accused and the complainant. That access to justice cannot certainly be limited to trial only. Access of justice includes right to appeal where one feels aggrieved. Fettering that right in my view breaches the very basic right to access justice.c.Right to a fair trial under Article 50 of the Constitution in my view applies also to both the accused person as well as victims of offences. Article 50(9) in my considered view was enacted on the realization that victims of offences are also entitled to equal protection and rights under the Constitution. Article 259 of the Constitution provides the Constitution should be interpreted in a manner that;i.Promotes its purposes, values and principlesii.Advances the rule of law and the human rights and fundamental freedoms in the Bill of Rightsiii.Permits the development of law andiv.Contributes to good governance. 21.In the case of Waswa –vs- Republic (2020) KESC 23(KLR), the Supreme Court while determining the right of an accused person to actively participate in criminal trials including cross-examination of witnesses with leave of the trial court inter alia held as follows;“That the participation of victims in criminal trial proceedings though a novel trend in Kenyan laws, was in accord with international developments that had embraced the place of victims in the trial process…. that the emerging picture from other jurisdictions was that the criminal processes should empower victims and their voices should be heard, not only as witnesses for the prosecution but as right holders with valid interests in the proceedings and the outcome of the cause………..” 22.The Supreme Court emphasized the rights of the victims under Section 9 of the Victims Protection Act adding that both the Constitution and the Statute sought to ensure fairness is applied to both the accused and victims particularly when it came to the right to fair hearing, timelines, respect, dignity and neutrality. 23.This court well guided by the ratio decindandi of the above decision finds that the rights of the victim of an offence to fair trial are not extinguished by a judgment of a trial court. The victims in my considered view have a right to access justice including through an appeal subject to leave of court. The appellant’s only misstep in this appeal is that he ought to have sought leave of court given that Section 348A of the Criminal Procedure Code expressly gives the right to appeal to be done through the Office of the Director of Public Prosecution. In situations where the Director of Public Prosecution is reluctant or neglects or omits to appeal, a victim can still appeal with leave of the court either the trial court or the appellate court.In the premises this court finds that the appeal herein is a non-starter but the appellant still retains the liberty to move this court appropriately for the interest of justice. DELIVERED, DATED AND SIGNED AT KITALE THI 29TH DAY OF JULY , 2026.HON JUSTICE R.K. LIMOKITALE HIGH COURTRuling delivered in open courtIn the presence ofMugun for the RespondentMwemeke holding brief for Kimani for the ApplicantDuke/Chemosop – court assistant