[2022] KEHC 12388 (KLR)

Nyantika v Republic (Anti-Corruption and Economic Crimes Appeal E003 of 2022) [2022] KEHC 12388 (KLR) (Anti-Corruption and Economic Crimes) (8 June 2022) (Ruling)

Neutral citation: [2022] KEHC 12388 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Anti-Corruption and Economic Crimes

Anti-Corruption and Economic Crimes Appeal E003 of 2022

EN Maina, J

June 8, 2022

Between

Daniel Kimori Nyantika

Applicant

and

Republic

Respondent

(Being an Appeal from the judgment /conviction and the pending sentence by Hon. V.N. Wakumile (Snr. Principal Magistrate) of Milimani’s Chief Magistrates’ Court Anti-Corruption case ACEC 20 OF 2018 delivered on 30th March 2022)

Ruling

1. The appellant/applicant being aggrieved by the judgment of the trial court delivered on March 30, 2022 in which he was convicted though not yet sentenced has preferred an appeal to this court via a memorandum (sic) of appeal dated April 26, 2020 in which he has listed 12 grounds of appeal as follows:1. That the trial magistrate erred in fact and in law in finding that the prosecution had proved its case and convicting the appellant on the basis of unreliable and inconclusive evidence.2. That the learned trial magistrate erred in fact and in law in trying and convicting the appellant on charges which he was not charged, testified and tried of in the charge sheet.3. That learned trial magistrate wholly ignored the appellant’s evidence as a civil servant and denied him the benefit of obvious doubts.4. That there was no credible evidence adduced to sustain a conviction consequent to which the conviction is unsafe.5. That the trial magistrate erred in law and in fact by proceeding with selective evidence and ignoring the evidence in favour of the appellant.6. That the learned trial magistrate erred in law and in fact in not finding that the prosecution witnesses did not link at all nor mention the appellant in the offence as a County Land Registrar and further failed to connect the offence to the appellant.7. That the learned trial magistrate erred in law and in fact in finding the applicant guilty of all counts while he was put on his defence for only 2 counts.8. That the learned trial magistrate erred in law and in fact in failing to sufficiently appreciate that the complainant’s evidence did not disclose an offence against the appellant and the entire prosecution’s case fails to meet the standards of proof required in criminal cases and conviction of “Beyond reasonable doubt.”9. That the learned trial magistrate erred in law and in fact by making conclusions that is not supported by evidence on record.10. That the learned trial magistrate erred in law and in fact by shifting the burden of proof to the accused to prove his case when the same was legally and purely the duty of the prosecution.11. That the learned trial magistrate erred in law and in fact in not complying with the law after High Court gave direction that the case proceed with the different magistrate after declaring a mistrial.12. That the learned trial magistrate erred in law and in fact by overlooking and ignoring the defence evidence and submissions.”

2. By the appeal this court is urged to:-1. Set aside the judgment/conviction and the pending sentencing2. The honourable court (sic)”

3. Simultaneously with the “memorandum of appeal” the appellant/applicant filed a notice of motion under certificate of urgency seeking to stay the sentencing which was scheduled before the trial court on May 4, 2022 pending the hearing and determination of this appeal. The applicant also seeks any other orders deemed expedient in the circumstances.

4. The application does not cite any grounds on its face but is supported by the applicant’s affidavit sworn on April 26, 2022 in which he deposesinter alia that whereas he was charged with four counts and was only put on his defence on two counts he was convicted on all the four counts; that the learned trial magistrate when he delivered the judgment alleged that it was in draft form and promised to furnish him with a fair copy when it was ready and reserved sentencing for May 4, 2022 but although he has followed up the judgement to enable him to file (sic) in vain hence this application; that being aggrieved by the judgment and conviction he has preferred this appeal and unless this court restrains the trial magistrate from sentencing him he stands to suffer both financially and mentally and further that it is in the interest of justice that this application be heard urgently to avert the aforestated consequences as he is the sole breadwinner of his family. He prays that the application be allowed and that the orders sought be granted.

5. This court did not stay the sentencing that was said to be due on June 9, 2022 but it instead directed counsel for the parties to canvass the application expeditiously by filing their submissions so that the application could be determined before the scheduled date.

6. Learned counsel for the respondent vehemently opposed the application by way of grounds of opposition dated June 3, 2022 stating that:1. The appellant has not demonstrated in his application that the appeal is arguable and has a high chance of success. The evidence on record adduced by the prosecution during the trial was sufficient to support the conviction meted out upon the applicant by the trial court.2. The application lacks merit and is an abuse of the court process.3. The applicant will not suffer prejudice as his right of appeal will be available even after he is sentenced.”

7. In the submissions dated May 26, 2022 learned counsel for the appellant/applicant reiterated that whereas the appellant/applicant faced four counts in the trial court, he ended up being put on his defence only on two counts but during the judgment he was convicted on all the counts a fact which he is unable to verify as the judgment is yet to be released to him. Counsel submits that the appeal has overwhelming chances of success and as this court is clothed with power to suspend sentence or its execution thereof under section 357 of the Criminal Procedure Code then it ought to grant the orders sought. Counsel states that the appellant/applicant being a civil servant stands losing everything in the twilight years of his career. Counsel contends further that there exists exceptional or unusual circumstances as it is very unusual for the appellant/applicant to be convicted on counts upon which he was not tried.

8. To buttress his submissions counsel places reliance on the case of Daniel Omondi Odemba vs Republic [2021] eKLR.

9. On the other hand, learned counsel for the respondent continued to vehemently oppose the application. Counsel submitted that the application is an abuse of the court process as there is no arguable appeal let alone one with an overwhelming chance of success. Counsel contends that the appellant/applicant has not demonstrated that he was convicted on all the counts although he was placed on his defence with only two of the counts. Relying on the Court of Appeal case of Fred Matiangi the cabinet Secretary, Ministry of Interior & Coordination of National Government vs. Miguna Miguna & 4 Others [2018] eKLR counsel submitted that in criminal cases stay ought to be granted only in exceptional cases; that stay being in the discretion of the court the threshold is higher than in an application for bail; that the Applicant has not demonstrated merit in his application and that moreover, should he be sentenced he will not suffer prejudice as he can still appeal the sentence. Counsel therefore urges this court to dismiss the application.

10. I have considered the application, the supporting affidavit, the grounds of opposition, the rival submissions of the learned counsel for the parties and the applicable law. The issue that commends itself for determination is whether this court has jurisdiction to stay the sentencing of the appellant by the trial court and if it does whether the appellant/applicant is deserving of the order.

11. The offences with which the appellant/applicant was charged are corruption related offences as prescribed in the Anti-corruption and Economic Crimes Act and as such the trial magistrate is appointed as a special magistrate under section 3 of that Act. That Act prescribes the offences as well as their sentences, punishment or penalty. The provisions of the Act are not very explicit on when sentencing should take place and one therefore has to turn to the Criminal Procedure Code for guidance. It is instructive however that as provided in section 5(2) of the Act, the provisions of theCriminal Procedure Code shall apply so far only as they are not inconsistent with the Anti-Corruption and Economic Crimes Act. Section 215 of the Criminal Procedure Code provides that upon hearing both the complainant and the accused person and their witnesses the trial court shall either convict the accused and pass sentence upon or make an order against him according to law or shall acquit him. It is now trite that a court shall not sentence the accused person before hearing their mitigation. (See the case of Francis Karioko Muruatetu & Another vs Republic [2017] eKLR.

12. Whereas the Criminal Procedure Code provides for motions in the arrest of judgment in the High Court (See section 324 of the Criminal Procedure Code) it does not have a similar provision for trials in the lower courts. Section 324 states:-324. Motion in arrest of judgment(1)The accused person may, at any time before sentence, whether on his plea of guilty or otherwise, move in arrest of judgment on the ground that the information does not, after any amendment which the court has made and had power to make, state an offence which the court has power to try.(2)The court may either hear and determine the matter during the same sitting, or adjourn the hearing thereof to a future time to be fixed for that purpose.(3)If the court decides in favour of the accused, he shall be discharged from that information”

13. Be that as it may in the case of Prasul Jayantilal Shah v Republic; Joseph Karuoro Claudio (Interested Party) [2022] eKLR Odunga J did stay the sentencing of the Ex parte applicant upon finding that there were exceptional circumstances in that case. It was his finding that the High Court generally has a power to stay proceedings at any stage of a criminal trial including at the tail end of the trial. He however held:“……. I must however state that it is not in every case that an applicant faces a jail term that the court will grant stay of sentencing or proceedings. To be able to obtain stay of criminal proceedings, particularly the sentencing part thereof, the applicant must show that there exist exceptional and compelling reasons…”

14. Other cases where sentencing has been stayed are the case of National Bank of Kenya & Another vs Geoffrey Wahome Muota, Court of Appeal NBI Civil Application No. 283 of 2015 [2016] eKLR, the case of Stanislus Nyagaka Ondimu vs Kalyasoi Farmers Co-operative Society and Others (Unreported) and the case of African Centre for Rights and Governance (ACRAG) & 3 Others vs Naivasha Municipal Council [2018] eKLRwhich were all civil proceedings involving orders of contempt of court.

15. The matter before me is a criminal matter where the appellant/applicant has been convicted but he seeks to stay the sentencing on the ground that he was allowed to defend himself only on two grounds but was convicted on four counts. It is my finding that even was I to find like Odunga J, that this court can stay the sentencing there does not in this case exist exceptional circumstances as in the case of Prasul Jayantilal Shah (supra) to warrant this court to do so. The fact that the applicant was put on his defence on only 2 counts but was convicted of 4 is in my view a ground for appeal but not one that would warrant staying of the sentencing as prayed. Moreover, the appellant/applicant has not placed any evidence before me to demonstrate that this was indeed the position. The case of Daniel Omondi Odemba vs Republic (supra) cited by learned counsel for the appellant/applicant is in my view not relevant to this case as there, the application was to stay or suspend the execution of a sentence that had already been passed as provided in section 357(1) of theCriminal Procedure Code. In my considered view, this application is nothing but an abuse of court process and it is accordingly dismissed.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 8TH DAY OF JUNE, 2022. E N MAINAJUDGE