[2022] KEHC 10575 (KLR)

Kilele & another v Director of Public Prosecution (Anti-Corruption and Economic Crimes Appeal 14 of 2019) [2022] KEHC 10575 (KLR) (Anti-Corruption and Economic Crimes) (20 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10575 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Anti-Corruption and Economic Crimes

Anti-Corruption and Economic Crimes Appeal 14 of 2019

EN Maina, J

June 20, 2022

Between

Anthony Kyalo Kilele

1st Appellant

Fred Moses Ayiela

2nd Appellant

and

Director of Public Prosecution

Respondent

Ruling

Introduction 1. Anthony Kyalo Kilele and Fred Moses Ayiera, the 1st and 2nd Applicants respectively filed separate applications both dated 2nd June 2022 which seek orders of stay of proceedings in the lower court pending hearing and determination of an intended appeal against the judgement of this court delivered on 19th May 2022 in High Court ACEC Appeal No. 14 of 2019 Director of Public Prosecutions v Anthony Kyalo Kilele and Fred Moses Ayiera.

2. The Applications are similar. They are brought under Section 356 and Section 361 of the Criminal Procedure Code and are based on the grounds that on 19th May 2022 this court allowed an appeal by the State/Respondent and directed that the matter be re-heard at the Chief Magistrates Anti-Corruption Court; that the intended appeals have high chances of success and that they are aggrieved by the judgement of this court on the grounds that: the learned Judge erred and misdirected herself by holding that the trial magistrate should have been guided by the rules for framing of charges set out in Section 137 of the Criminal Procedure Code whereas that provision applies only in instances where a prosecutor should frame the charge or information.

3. Further, they aver that this court said nothing to affect the solid reasoning of the trial magistrate in finding as she did that Count No. 1 of the charge sheet was defective for reason of duplicity and further that the court failed to grasp the logic and the very essence of the Indian Supreme Court decision in K O Anbazhagan v State of Karnataka and others. (citation not provided)

4. The Respondent opposed the applications through its grounds of opposition dated and filed on 15th June 2022 which are that the applications are an abuse of the court process, that the applicants have not demonstrated that their appeal is arguable; that, the appeal will not be rendered nugatory if the orders sought are not granted; that the applicant will not suffer prejudice if the orders sought are not granted and that the application is a derailment of the due process of law.

Submissions by the parties 5. The Applications were canvased orally at the virtual hearing held on 16th June, 2022.

6. Mr. Kyalo Mbobu, Learned Counsel for the 1st Applicant, submitted that the Applicants have elicited 4 grounds of appeal and have therefore satisfied the first ground. He states that the 1st Applicant is required to appear before the chief magistrate’s court on 21st June 2022 yet the Applicants are yet to receive a copy of the proceedings of this Court. Counsel argued that should the magistrate’s court proceed with the matter, then the appeal will be rendered nugatory. Counsel disputed that the application is an abuse of the court process and asserted that it is the usual practice to seek stay of proceedings in the trial court before going to the Court of Appeal. Counsel contended that should stay not be granted the applicants will suffer prejudice as they will have to appoint Counsel and to defend themselves during the trial which is expensive. Counsel submitted that the application is part of the applicant’s right to due process which right cannot be taken away from the applicants. He urged this court to grant the application.

7. Miss Ombajo, Learned Counsel for the 2nd Respondent, concurred with the submissions of the 1st Applicant but added that the Respondent has not demonstrated how the application derails due process given that it took them 10 years to bring this appeal and the applicants had always accommodated them.

8. In response, Ms. Ndombi Learned Counsel for the Respondent, submitted that the Respondent opposed the Application because given that the Applicants have indicated that they wish to appeal to the Court of Appeal the application can be made and heard in that court. She submitted that a denial of the orders sought would not render the intended appeal nugatory because should the appeal be successful the proceedings in the magistrates’ court can be vacated and the acquittal restored. She urged this court to dismiss both applications.

Analysis and determination 9. This application is expressed to be brought under Section 356 and Section 361 of the Criminal Procedure Code. Section 356 states:“356. Bail and stay of execution pending the entering of an appeal1. The High Court, or the subordinate court which has convicted or sentenced a person, may grant bail or may stay execution on a sentence or order pending the entering of an appeal, on such terms as to security for the payment of money or the performance or non-performance of any act or the suffering of any punishment ordered by or in the sentence or order as may seem reasonable to the High Court or the subordinate court.2. If the person in whose favour bail or a stay of execution is granted under this section is ultimately liable to a sentence of imprisonment, the time during which the person has been released on bail, or during which the execution was stayed, shall be excluded in computing the term of his sentence, unless the High Court, or failing that court the subordinate court which convicted and sentenced the person, otherwise orders.” (underlining mine)Section 361 provides for appeals from this court to the Court of Appeal and I need not reproduce it here.

10. No doubt Section 356(1) of the Criminal Procedure Code gives this court the requisite jurisdiction to grant the orders sought as it provides for stay of execution of a sentence or order.

11. According to the applicants, the test for stay of proceedings comprises two limbs namely; whether the appeal is arguable and

whether the denial of the orders would render the appeal nugatory.

This argument appears to have been drawn from Section 5(2) of the Court of Appeal Ruleswhich in my view would also apply to the present application. The issue for determination therefore is whether firstly, the applicants have an arguable appeal and secondly, whether their appeal shall be rendered nugatory should the orders sought be refused. In the case of Goddy Mwakio & Another v Republic [ 20211] eKLR the Court of Appeal held that stay of criminal proceedings is to be made sparingly and only in exceptional circumstances. I have carefully considered the grounds for the application and the submissions of learned Counsel for the parties and I am not persuaded that this case raised only exceptional circumstances to warrant stay of the order made by this court for re-hearing of the case against the applicants. Firstly, I am not satisfied from the material placed before me that the applicants have an arguable appeal. It is also my finding the arguability or otherwise of the appeal would be determined by the court hearing the Appeal upon filing of the appeal but not by this court. Secondly there is no possibility that the appeal would be rendered nugatory given that the trial will not likely commence immediately the applicants present themselves before the trial magistrate and as such the applicants shall have adequate time to file their appeal and the Court of Appeal may then consider their application for stay if one is filed before it. I also find no exceptional circumstances to warrant grant of the orders sought and the applications for stay of the order of this court are therefore dismissed.

SIGNED, DATED AND DELIVERED VIRTUALLY THIS 20TH DAY OF JUNE 2022. E N MAINAJUDGE