Republic v Saikumar (Criminal Appeal E052 of 2024) [2026] KEHC 8076 (KLR) (Crim) (28 May 2026) (Ruling)

Republic v Saikumar (Criminal Appeal E052 of 2024) [2026] KEHC 8076 (KLR) (Crim) (28 May 2026) (Ruling) Neutral citation: [2026] KEHC 8076 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Criminal Criminal Appeal E052 of 2024 MW Muigai, J May 28, 2026 (CM COURT CRIMINAL CASE E1230 OF 2021) Between Republic Appellant and Allaka Saikumar Respondent Ruling 1.The Prosecution preferred appeal against the judgment of the Trial Court in Milimani Criminal Case No E1230 of 2021. 2.The Respondent was charged with the offence of Demanding Money by Menaces contrary to Section 302 of the Penal Code. The Respondent allegedly on diverse dates between 1/11/2021 and 3/11/2021 being an employee of Safaricom PLC and while working from note from an unknown location with menace demanded a ransom of 800,000 USD from Safaricom PLC with intent to steal. 3.The Respondent was also charged with Unauthorized Interference to a Computer System Contrary to Section 16(1) of the Computer Misuse and Cyber Crimes Act of 2018. The Respondent on the said diverse dates while being an employee of Safaricom PLC as a data scientist without authority and on breach of employment and Safaricom PLC policies on subscriber data interfered with Safaricom PLC computer systems by copying from Safaricom PLC servers confidential subscribers’ data to Amazon. 4.The Respondent was further charged with Attempting to Commit Fraud contrary to Section 261 (1)( C) as read with Section 42 of the Computer Misuse and Cyber Crimes Act of 2018.The Respondent on the said diverse dates while being an employee of Safaricom and working remotely from unknown location in breach of terms of employments and Safaricom PLC policies on subscriber data attempted to obtain an economic benefit for himself by copying from Safaricom PLC servers confidential subscriber’s data to Amazon. 5.The Respondent was acquitted on all charges as per judgment of the Trial Court delivered on 30/4/2024 by Hon. Ondieki. The State filed the instant appeal raising 8 grounds on the petition of appeal. This appeal was admitted and parties filed and exchanged written submissions. The matter is on highlighting of the written submissions. In the course of oral submissions issues arose. The contention before Court is whether the victim has right to address court in the appeal. 11.The other issues came up during submissions and parties sought specific directions on whether parties could proceed through both virtual hearing and physical hearing as Respondent was out of the country and whether media coverage would be allowed during the proceedings. 12.On 13/11/2025 Mr. Kenneth Wilson and Mr. Gikonyo were on record as watching brief for Safaricom PLC. Mr Wilson advised court that he had instructions to support highlighting of submissions in open court and that no prejudice would be caused considering the importance of the appeal. He also stated that the victim would make submissions in the appeal. 14.On 5/2/2026 Mr. Ondieki Counsel for the Accused/Respondent raised an oral objection on witness participation. The objection was addressed on subsequent dates when the parties made oral submissions. The Accused/respondent’s Submissions. 15.The Accused/Respondent’s Counsel stated that prosecutorial powers of the ODPP under Article 157 of Constitution are donated by the people of Kenya and cannot be abdicated or interfered by Safaricom PLC. 16.That the Court is bound by the Values of the Constitution and has to ensure that independence of the institutions and commissions is not interfered with. The integrity of the Constitution and proceedings must be also be protected. 17.That the ODPP is the Appellant in this case while Safaricom PLC is a parallel institution which is unknown in law. It is also an unknown party in the appeal proceedings which should be excluded in the case. 18.Further that enjoining Safaricom PLC would affect jurisprudence and mischief which was to ensure equality of arms. Further jurisprudence that propriety and ability of victim participation is to be determined by the Trial Court. 19.The victims are the employees of Safaricom PLC and they participated in the Trial proceedings. That the Trial Court and proceedings met the requirements of Article 25 (1), 10 (1), (2) and Article 50 of the Constitution after the victim evidence was analyzed in the Court’s determination. 20.The Respondent urged that the role of the Complainant ends at the delivery of judgment. Lastly; that victim’s participation would delay the adjudication of the appeal. Prosecution And Victim’s Submissions 21.The Application was opposed by the Prosecution. The view taken is that the victim has the right to participate in the Trial but it should be to a limited extent. The participation should not be prejudicial to the rights of the accused and the scope is to be determined by the Court. 22.In this case there is no ground to deny Court’s exercise of discretion in favor of the victim. Lastly, counsel watching brief for the complainant gave response that the complainant had been present during trial and participated without objection from the defense. 23.That Article 50 (9) and the Section 9 of the Victim Protection Act gives priority to the victims to participate in criminal proceedings and participation is not extinguished on appeal. 24.That the Prosecutorial mandate under Article 157 of the Constitution cannot be usurped. Analysis And Determination. 25.Section 9 of the Victim Protection Act refers to the victim’s rights during. The provision also sets the preconditions and circumstances. That1.A victim has a right to—a)be present at their trial either in person or through representative of their choice.b)have the trial begin and conclude without unreasonable delay;c)give their views in any plea bargaining;d)have any dispute that can be resolved by the application of law decided in a fair hearing before a competent authority or, where appropriate, another independent and impartial tribunal or body established by law;e)be informed in advance of the evidence the prosecution and defense intends to rely on, and to have reasonable access to that evidence;f)have the assistance of an interpreter provided by the State where the victim cannot understand the language used at the trial; andg)be informed of the charge which the offender is facing in sufficient details.2.Where the personal interests of a victim have been affected, the Court shall—“Permit the victim's views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court; and ensure that the victim's views and concerns are presented in a manner which is not—(i)Prejudicial to the rights of the accused; or(ii)inconsistent with a fair and impartial trial.” 26.The issues for determination are framed as follows:-a)Whether victim participation should be limited to Trial proceedings.b)Whether Safaricom Plc is a competent party to the proceedings.c)Whether victim’s participation affects or threatens prosecutorial powers under Article 157 of Constitutiond)Whether prejudice or injustice would be suffered Whether Victim Participation Ends At The Trial. 27.Section 2 of the Victim Protection Act refers to trial to include sentence proceedings. This definition is read with Section 9 of the Victim Protection Act, to refer to various victim interests during trial, the stages listed are arraignment and plea taking, evidence and sentencing when the victim impact statements and submissions can be recorded. 28.The accused takes the view that the Complainant was given opportunity at the Trial and it should be locked out in the Appeal stage. 29.In the case of Mutune & Others -Vs- Republic [2025] KECA 496 (KLR) (Baby Samantha Pendo case) a similar issue was being addressed whether NGOs representing the victims were properly joined in the High Court proceedings before the Court of Appeal and whether they could address and participate in the said proceedings in the High Court . The Court of Appeal held that :-“We say no more except to point out that these parties were before us representing victims of the crimes which are being tried in Nairobi High Court Criminal Case No. E074 of 2022. As the Supreme Court has bindingly interpreted the Victims Protection Act in Joseph Hendrix Waswa v R (2019) eKLR, victims of crimes have a right to participate actively in criminal and auxiliary proceedings concerning the crimes they suffered.” 30.I find that would be unjustified to prevent victim participation on appeal. Whether Safaricom Plc Is A Competent Party To The Proceedings. 31.The Respondent second contention is that Safaricom PLC is a non-party and is strange to the appeal proceedings, the Court should limit itself to parties on appeal only. 32.Article 50 (9) of Constitution provides that:” Parliament shall enact legislation providing for the protection, rights and welfare of victims of offences.”Victim’s no longer take passive roles in court proceedings. The victim has become a necessary party in criminal proceedings such that whenever interests are at stake, the court has a duty to record and consider the victim’s views. 33.Further, criminal prosecution has been described as a tripartite relationship taking shape of an African cooking pot which balances on three stones. The case of Abdi –Vs- Republic [2024] KEHC 6570 (KLR) 34.In this appeal, the Accused was acquitted before the Trial Court but the victim interests remain apparent. These must be protected and provided by enjoining the victim to keep abreast with the proceedings and to know the outcome of the appeal. Article 47 of the Constitution and rights to fair administrative actions also make it necessary to ensure a party participates when the decision would affect a party in some way or other. 35.The difficulty is the definition of ‘victim ‘under Section 2 of VICTIM PROTECTION ACT which is limited to natural person. Providing that :-“Victim" means any natural person who suffers injury, loss or damage as a consequence of an offence; 36.In Odhiambo -Vs- Attorney General & 2 others; Nyanchoga (Interested Party) [2024] KEHC 354 (KLR) the High Court addressed this definition and found it to be limiting, discriminative and unconstitutional. Of interest to this case is the observation made at paragraph 28. The Court stated that“It is common knowledge that juristic persons are always in court either as perpetrators or as victims of offences. A careful reading of article 50(9) of the Constitution will show that the people of Kenya did not distinguish between natural persons and juristic persons when they directed Parliament to enact legislation to provide for the protection, rights and welfare of victims of offences. As such, to limit the definition of “victim” in the VPA to natural persons is not only limiting, but also restrictive. Even more critical, it is discriminatory. The said definition ignores the fact that juristic persons can be, and often are victims of offences and also require protection of their rights and welfare as well as information and support services, reparation and compensation as do victims who are natural persons. 37.Also that, paragraph 33 that “…. Indeed, under Article 27(1) of the Constitution; juristic persons, being persons within the meaning of Article 260 of the Constitution;“person” includes a company, association or other body of persons whether incorporated or unincorporated; are also equal before the law and are entitled to equal protection and equal benefit of the law.” 38.In similar application, Safaricom PLC which is a juristic being is equally competent to be enjoined as a victim in the proceedings and deserves equal benefits and protection of the law by virtue of Article 27 Constitution and as victim under Section 9 of the Victim Protection Act. Issue Of Prejudice If The Victim Participates And The Limit Of Participation. 41.The fear of interference and abdication of the ODPPs prosecutorial power has been cited as a ground to bar victim participation. The accused/Respondent contends that the Office of Director of Public Prosecution (ODDP‘s) power is threatened compromised and abdicated if Safaricom PLC participates in these proceedings while the ODPP is of the contrary view that participation should be permitted but limited in scope. 42.Article 157 of the Constitution is specific on the independent and autonomous mandate of the ODPP to institute and undertake criminal proceedings against any person before any court. Article 157(6) (a) provides as follows:“The Director of Public Prosecutions shall exercise State powers of prosecution and may-(a)Institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed.” 43.Article 157 (11) is clear that exercise of prosecutorial autonomy must ensure public interest and prevention of abuse of process. That“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.” 44.In Jirongo -Vs- Soy Developers Ltd & 9 others [2021] KESC 32 (KLR) the Supreme Court Relied on these Articles of the Constitution. In that case criminal proceedings had been instituted and were parallel with civil proceedings. The issue raised was abuse of prosecutorial power and the Supreme Court advised the following considerations for the DPP before bringing criminal proceedings. 45.The Apex Court noted at paragraph 71 that :-“Lastly, in instituting the prosecution, the ODPP, without in any way taking away the constitutional mandate to prosecute crimes, ought always to act judiciously and not act in perpetuation of an unfair and malicious criminal complaint. In doing so, that office must always be guided by the principle that the right to a fair trial cannot be limited thus raising the bar in the determination of the question whether to prosecute or not.” 46.Here, in the instant appeal, the averments were made at the appeal highlighting of submissions and are speculative such that there is no evidence of parallel, independent prosecution or manipulation of the prosecutorial process by the complainant. 47.The Accused/Respondent has the burden of proof to establish the alleged threat or invasion of the DPP’s prosecutorial power and that this appeal proceeding is contrary to public interest. 48.The Appellant admits that the appeal has been preferred by the prosecution, his fear is that Safaricom PLC participation would delay adjudication of the appeal and that active participation threatens prosecutorial power. 49.In Supreme Court Petition No 23 of 2019 Joseph Lendrix Waswa vs Republic , the Apex Court clarified that prosecutorial power and obligation remains with the DPP while the victim is only assisting the Trial judge to obtain a clear picture of the case. The victim is not a second prosecutor: -“ 75.We are of the view that the victim has no active role in the decision to prosecute, or the determination of the charge upon which the accused will finally be tried. This is the sole duty of the DPP. While the victim of a crime can participate at any stage of the proceedings as deemed appropriate by the trial judge, a victim or his legal representative does not have the mandate to prosecute crimes on behalf of the DPP. The DPP must at all times retain control of, and supervision over the prosecution of the case. As such, the constitutional and statutory powers of the DPP to conduct the prosecution is not affected by the intervention of the victim in the process. 76.Additionally, a victim cannot and does not wear the hat of a secondary prosecutor. When victims present their views and concerns in accord with section 9(2) (a) of the VPA, victims are assisting the trial Judge to obtain a clear picture of what happened (to them) and how they suffered, which the Judge may decide to take into account." 50.With regard to feared delay in resolving the appeal, I find that the appeal is on course and parties had filed submissions which are being highlighted. 51.Further, input by the victim and any delay caused in such extent would not be prejudicial to the appellant who is not serving jail terms. Further, his acquittal has not been stayed. What is to be avoided is the eventuality of a parallel appeal by the Complainant. This Court has discretion to allow participation and to set out the conditions. 52.The first limitation is on the nature of appeal before Court which relates to an acquittal from the Trial. The statutory restrictions limit parties to points of law.Section 348A (1) of the Criminal Procedure Code provides that:“When an accused person has been acquitted on a trial held by a subordinate court, or where an order refusing to admit a complaint or formal charge, or an order dismissing a charge, has been made by a subordinate court, the Director of Public Prosecutions may appeal to the High Court from the acquittal or order on a matter of law.” 53.Second, from the Record of Appeal filed and served to all parties and the Court, it shows and I agree with the Accused/Respondent that the Complainant was heard, Counsel Watching Brief also confirmed participation on during the Trial. In essence, the Victim Counsel had been given a chance relay its case and to cross examine the accused. Participation and intervention should not be a repetition of the Prosecution’s grounds or what was said at the Trial. 54.The Appeal entails proceedings as were conducted and evidence elicited during Trial and placed on record. The Record of Appeal reflects parties at Trial that include the victim or interested party who was represented and undertook cross examination of Prosecution witnesses. During the Appeal unless additional evidence is sought to be adduced there will be no cross examination of evidence adduced in examination in chief during Trial. Instead; the parties through Counsel agreed to canvass the appeal through filing and serving written submissions and high lighting the same. Therefore, the Victim may subsume submissions in tandem with Prosecution as Appellant but only to the extent of its interest, loss, injury or damage is concerned. The Court will ensure during proceedings that there should not be prejudice on the Respondent emanating from Victim’s submissions. 55.DispositionTo balance the interests of parties, I order that Safaricom PLC will have the right of audience in the appeal. The submissions of the victim will be limited to points of law. RULING DELIVERED SIGNED & DATED IN OPEN COURT IN CRIMINAL DIVISION MILIMANI PHYSICALLY/VIRTUALLY ON 28/5/2026M.W. MUIGAIJUDGE