[2022] KEHC 16099 (KLR)

Phogisyo v Republic (Criminal Appeal E001 of 2022) [2022] KEHC 16099 (KLR) (Crim) (7 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16099 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Appeal E001 of 2022

DO Ogembo, J

December 7, 2022

Between

Thomas Kiptum Phogisyo

Applicant

and

Republic

Respondent

Ruling

1. The applicant Lt ColThomas Kiptum Phoghisyo has moved this court by way of a chamber summons application dated November 8, 2022 and filed on November 11, 2022. The application is brought under articles 159(2)(d) and 47 of the Constitutionof Kenyasection 357 of the Criminal Procedure Code, and section 4 of the Fair Administrative Action Act, 205. The live prayer is prayer 3 therein that;-“That this honourable court be pleased to issue a stay of the proceedings in court martial case No 4 of 2021 at Kahawa Garrison pending the hearing and determination of the appeal filed herein.”

2. The application is supported both by the grounds on the face of it and an affidavit of the applicant sworn on November 8, 2022. The applicant has deponed therein that he is the accused person in the said case at the court martial sitting at Kahawa Garrison having been charged with several offence as set out in the charge sheet attached. That the committee sitting at the court martial delivered a ruling on February 11, 2022, finding him with a case to answer and placing him to his own defence, and requiring him to furnish his list of intended witnesses and evidence. That he has since filed an appeal against the said ruling and fears that should an order of stay not issue, his appeal shall be rendered nugatory and he stands to suffer immense prejudice. That his appeal has high chances of success.

3. These are the same submissions that learned counsel, Mr Otieno, for the applicant made in court at the time of the hearing of this application on December 5, 2022. Counsel however, relied of the case of Perry Mansukh Kansangara and 3 others versus DPP (2021)eKLR, where the Court of Appeal set out what is to be considered for stay pending appeal i.e whether the appeal is arguable or merited. That the petition of appeal filed does not set out frivolous grounds and stands high chances of success.

4. Counsel also submitted that having filed the appeal, there cannot be concurrent proceedings before the court martial. That should there be no stay, the appeal shall be rendered nugatory. That it is only fair and just that the court martial proceedings be stayed so that the appeal is heard in satisfaction of article 47 of fair administrative action.

5. Ms Akunja, counsel for the state respondent, opposed this application based on the grounds of opposition filed on November 29, 2022. Counsel also relied on the Perry Mansukh Kansangara and 3 others versus DPP (2021)eKLR, which sets out the conditions for grant of the order of stay. Counsel added that the onus of proving the set conditions lie with the applicant and that stay in criminal matters is granted in exceptional circumstances. That the applicant would still have a recourse even if the court martial case proceeds.

6. And in a short reply, counsel for the applicant submitted that the law provides for interlocutory appeal and it would be unfair to wait for the court martial to proceed only for the applicant to challenge the outcome of the trial later.

7. I have considered the application of the applicant, the affidavit in support of it and the annextures. I have also considered the submisions made by the 2 opposing sides of to this application.

8. The applicant herein seeks an order staying the proceedings of court martial case No 4 of 2021 sitting at Kahawa Garisson where he is the accused. He has filed an appeal to challenge the finding and order of the court martial issued on February 11, 2022 that he has a case to answer and that he be put to his own defence. It is main argument for plea of a order of stay in that the appeal he has filed has high chances of success and that should there be no order of stay, his appeal would be rendered nugatory.

9. Both the applicant and respondent sides have relied on the case ofPerry Mansukh Kansangara and 3 others versus DPP (2021)eKLR

10. As the authority on conditions to be satisfied for an order of stay to issue. This being the case, it is necessary that this court considered closely the authority a decision of the Court of Appeal.

11. I have duly considered the said decision which is binding on this court. Dealing with the same issue of stay of proceedings, the Court of Appeal made several holdings relevant to our instant case. Just to mention some;-i.That the applicant must establish at least one arguable point (court relied on Damji Pragji Mandaria versus Sarah Lee Household and Body Care Limited, Civil Application No Nai 345 of 2004).ii.That the law enjoins the applicants to demonstrate both arguability and the nugatory aspects as demonstrating only one limb will not suffice.iii.That whether or not an appeal will be rendered nugatory depends on whether or not what is sought to be stayed if allowed to happen is reversible, or if it is not reversible whether damages will reasonably compensate the party aggrieved.

12. In the case, the court declined to issue an order of stay on the basis that the applicants would not be prejudiced in any way if the criminal trial proceeds.

13. From the decision of the Court of Appeal, it is clear that the burden and onus is on the applicant to demonstrate first that the appeal filed is arguable. With respect, the applicant herein never demonstrated to this court how arguable the appeal filed is. Apart from confirming that the applicant has filed a petition of appeal encompassing upto 5 grounds, absolutely no attempt was made at demonstrating that at least one of the grounds is arguable and has high chances of success. Thus, the applicant’s application fails this first test.

14. On whether the appeal of the applicant would be rendered nugatory should an order of stay not issue, again no attempt was made by the applicant in demonstrating this element. From the facts deponed to by the applicant in the affidavit in support of the application, and the submissions of learned counsel before the court, the applicant’s position comes out that since the applicant has filed an appeal, which appeal is still pending then should an order of stay not issue, the appeal shall be rendered nugatory. Whereas it is conceded that an appeal has been filed, this court would still expect and require of the applicant to discharge its onus of proving that indeed the appeal would be rendered nugatory. This, the applicant failed to do.

15. Lastly, the applicant has submitted that in case no order of stay, then the applicant stands to suffer prejudice in that any negative orders that may issue against him would render his appeal nugatory. The applicant has not made any attempt at demonstrating whether or not such orders would be irreversible and if so, whether damages would reasonably compensate him or not.

16. The jurisdiction of the court martial in hearing the case of the applicant has not been put to question. It is a creation of statute with specific mandate. The court must be left to discharge its statutory mandate as required in law. It follows therefore, that whereas an aggrieved party has every right to challenge any decision f the court martial he is aggrieved of in a court of law, the High Court, this court must guard against any attempts at inviting it to micromanage the conduct and processes at the court martial by way of interlocutory appeals, and revisions.

17. The Court of Appeal in the case of Thomas Patrick Gilbert Cholmondeley versus Republic (2008)eKLR, held;“First, the fact that the 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 may well acquit in the end and the adverse ruling even if it amounted to a breach of a fundamental right, falls by the wayside and causes no harm to such an accused. The advantage of that cause is that the long delay in the hearing of the charge is avoided and in the event of a conviction, the matter can be raised on appeal once and for all… we think it is against public policy that criminal trials should be held up in this fashion, and it is our hope that lawyers practicing at the criminal bar will appropriately advice their clients so as to avoid unnecessary delays. We should add that in future, if such appeals are brought the court may well order that the hearing of the appeal be stayed pending the conclusion of the trial in the High Court.”

18. Whereas the Court of Appeal in the above case dealt with an application for stay of a murder case before the High Court, I am convinced that the above finding would apply “mutatis mutindis” in cases before other courts and tribunals including the court martial.

19. In view of the above observations, this court is not convinced that the applicant by way of this application has satisfied the threshold for grant of orders of stay of proceedings before the court martial as prayed. Neither is this court convinced that the application of the applicant has any merit. I dismiss the applicant’s application dated November 8, 2022 wholly. Orders accordingly.

HON. D. O. OGEMBOJUDGE7TH DECEMBER 2022COURT:COURT:Ruling read out in court (on-line) in presence of Mr. L. W. Kamau for Mr. Otieno, for applicant, Ms. Chege for the state and Mr. Mugira holding brief for Mr. Yator for DOD.HON. D. O. OGEMBOJUDGE7TH DECEMBER 2022Mr. OteinoI am now present. We apply for certified copies of the proceedings and ruling as we consider to appeal.Court:Certified copies of the proceedings and ruling to be prepared and supplied to the parties as prayed.