[2022] KEHC 13650 (KLR)

Republic v Charles & another (Miscellaneous Criminal Application E031 of 2021) [2022] KEHC 13650 (KLR) (3 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13650 (KLR)

Republic of Kenya

In the High Court at Embu

Miscellaneous Criminal Application E031 of 2021

LM Njuguna, J

October 3, 2022

Between

Republic

Applicant

and

Benard Murathi Charles

1st Respondent

Daniel Mugambi Njeru

2nd Respondent

Ruling

1. Before this court is a notice of motion brought under article 27(1), 48, 50 and 159 of the Constitutiondated October 1, 2021 wherein the applicant has sought for orders that:i)This honourable court be pleased to set aside and vary the order in High Court Criminal Appeal No 19 of 2019 issued on November 23, 2020. ii)This honourable court be pleased to issue an order reinstating Criminal Appeal No 19 of 2019 to be heard on merit.iii)This honourable court be pleased to make such order as it may deem just, expedient and in the interests of fairness and natural justice.

2. The application is premised on the grounds on its face and further supported by the affidavit sworn by Leah Mati, Prosecution counsel, on behalf of the applicant herein. The applicant’s case is premised on the fact that it has been in conduct of the matter herein and that the same was mentioned severally to confirm service of the record to the respondents. That it made all efforts to serve the respondents including enlisting the assistance of the OCS Embu police station to no avail, as it proved difficult to trace the respondents’ places of abode. It was its case that in the interest of justice, it made an application to withdraw the appeal, which application this court allowed. That the position has since changed in that, the respondents’ places of abode are now well known and thus the applicant herein prays that this court vacates its earlier orders and reinstate the appeal for hearing.

3. In response, the 1st respondent filed an affidavit sworn on February 4, 2022 wherein he depones that the prayers sought by the applicant are prejudicial to him and that the applicant never filed an appeal within time against the judgment of the trial court. That the applicant served the 1st respondent while the 2nd was never served and after the matter was mentioned severally before this court, the applicant chose to withdraw the appeal. He deponed that all that time, he was being represented by a counsel and therefore the issue of service upon him ought not to have been an issue. That his home is in Kivwe along Embu -Meru Road and the complainant in Criminal Case No 941 of 2015 who has been pursuing the appeal is his neighbor and therefore, it would be imprudent for the applicant to depone that his whereabouts were unknown. In the end, he urged this court to dismiss the application since reinstating the appeal would infringe his constitutional rights. The 2nd respondent did not file a response to the application despite having been served with the same.

4. Directions were given that the application be canvassed by way of written submissions and both parties complied.

5. The applicant submitted that the main contention is that the application to withdraw the appeal was premised on wrong facts and the complainant continues to suffer and therefore, this court should reinstate the appeal to ensure that the matter is heard to its logical conclusion. It was its case that the main reason why it applied to withdraw the appeal was that the respondents’ places of residence were unknown. Reliance was placed on section 348A of the Criminal Procedure Code and article 165 of the Constitution. This court was therefore urged to allow the application herein.

6. The 1st respondent submitted that the same was vexatious, an afterthought and a clear abuse of court process since litigation must come to an end. That he was arrested with two others and charged in Criminal Case No 941 of 2015 before the Chief Magistrate’s Court at Embu and that they were acquitted on May 16, 2017 as the court found that they had no case to answer. It submitted that the applicant did not lodge an appeal challenging the lower court’s decision until October 11, 2017 when the applicant filed before this court, an application seeking to file appeal out of time. That the 1st respondent had an advocate on record which information was well known to the applicant and as such, service was not a problem. Further, the 1st respondent’s home which is at Kivwe along Embu- Meru road is well known to the complainant as he is his neighbor. Reliance was made on article 50 (2) (e) of the Constitution. That a period of over five years has lapsed since he was tried and acquitted and it would therefore be unfair and an outright infringement of the 1st respondent’s right to fair hearing if the application herein is allowed.

7. I have considered the application before me and the written submissions by both parties and this court finds that the main issue for determination is whether the application by the applicant has merits.

8. The orders sought in the application are discretionary in nature and the court has unfettered discretion to set aside an ex parte order where sufficient cause has been demonstrated. According to the Court of Appeal in the case of CMC Holdings Ltd v James Mumo Nzioki Civil Appeal No 329 of 2001 [2004] eKLR, it was stated that this wide discretion of the court is intended to ensure that a litigant does not suffer injustice or hardship as a result of among other things an excusable mistake or error. The test which courts have set to determine whether or not to set aside ex-parte orders is “whether sufficient cause has been shown”.

9. The dismissal of appeal and its reinstatement is an act of the exercise of this court’s discretionary power. [See Shah v Mbogo &another [1967] EA 116]. In the same breadth, in Wachira Karani v Bildad Wachira [2016] eKLR Mativo J held that:“…. Sufficient cause is a question of fact and the court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a straight-jacket formula of universal application. Thus, the applicant must demonstrate (like in this case) that he was prevented from serving the respondents by a sufficient cause...”

10. Similarly, in the case ofJohn Nahashon Mwangi v Kenya Finance Bank Limited (in Liquidation) [2015] eKLR as follows:“The fundamental principles of justice are enshrined in the entire Constitution and specifically in Article 159 of the Constitution. Article 50 coupled with article 159 of the Constitution on right to be heard and the constitutional desire to serve substantive justice to all the parties, respectively, constitutes the defined principles which should guide the court in making a decision on such matter of reinstatement of a suit which has been dismissed by the court.These principles were enunciated in a masterly fashion by courts in a legion of decisions which I need not multiply except to state that; courts should sparingly dismiss suits for want of prosecution for dismissal is a draconian act which drives away the plaintiff in an arbitrary manner from the seat of judgment. Such acts are comparable only to the proverbial ‘’Sword of the Damocles’’ which should only draw blood where it is absolutely necessary. The same test will apply in an application to reinstate a suit and a court of law should consider whether there are reasonable grounds to reinstate such suit-of course after considering the prejudice that the defendant would suffer if the suit was reinstated against the prejudice the Plaintiff /prosecution will suffer if the suit is not reinstated.”

11. Article 157(10) of the Constitution provides that the Director of Public Prosecutions shall not require the consent of any person to commence criminal proceedings and in the exercise of his or her powers or functions, shall not be under the direction or control of any person or authority, article 157(11) provides: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.

12. It is therefore clear that the current prosecutorial regime does not grant the DPP a carte blanche authority to run amok in the exercise of its prosecutorial powers. Where it is alleged that the standards set out in the Constitution and in the aforesaid Article have not been adhered to, this court cannot shirk its constitutional mandate to intervene and make a determination in reference to the said allegations. I associate myself with the sentiments expressed in Nakusa v Tororei & 2others(No 2) Nairobi HCEP No. 4 of 2003 [2008] 2 KLR (EP) 565 to the effect that:“the High Court has a constitutional role as the bulwark of liberty and the rule of law to interpret the Constitution and to ensure, through enforcement, enjoyment by the citizenry of their fundamental rights and freedoms…In interpreting the Constitution, the court must uphold and give effect to the letter and spirit of the Constitution, always ensuring that the interpretation is in tandem with aspirations of the citizenry and modern trend……Even if it be at the risk of appearing intransigent “sentinels” of personal liberty, the court must enforce the Bill of Rights in our Constitution where violation is proved…..” [Also see Koinange v Attorney General and Others [2007] 2 EA 256; Kenya Commercial Bank Limited & 2 others v Commissioner of Police and another, Nairobi Petition No. 218 of 20122 [2013] eKLR].

13. In the instant application, the ground upon which the application for reinstatement of the appeal is made is that the withdrawal of the appeal was premised on the fact that the respondents’ places of abode for purposes of service were unknown. The 1st respondent on the other hand submits that he had an advocate on record which information was well known to the applicant and as such, service upon him, ought not to be a problem. Further, the 1st respondent’s home which is at Kivwe along Embu- Meru road is well known to the complainant as he is his neighbour.

14. Of importance to note is the fact that the applicant has not denied that the 1st respondent had a counsel on record and no reason has been given why counsel was not served. Further, the applicant has not denied that the complainant and the 1st respondent are neighbours in Kivwe along Embu – Meru road. It cannot therefore, be said that his whereabouts were unknown. In any event, it is common knowledge that the State has all the machinery at its disposal to investigate the whereabouts of any person if it wishes to arrest him. It is also not lost on this court that the respondents had been arrested by police before they were arraigned in court to be prosecuted in the criminal trial that was before the lower court. They cannot now claim that they could not trace them for service upon then, of the memorandum of appeal. I refuse to buy that as an excuse.

15. This court is alive to the fact that an accused person has a right to have his trial commence and concluded without unreasonable delay as guaranteed under article 50(2) (e) of the Constitution. In addition, article 159 (2) (b) obligates courts not to delay justice. [See the Supreme Court in the case of Joseph Lendrix Waswa where the court reiterated that:“The benefits of an expeditious trial cannot be gainsaid. A speedy trial ensures that the rights of the accused person are secured; it minimizes the anxiety and concern of the accused; it prevents oppressive incarceration; and it protects the reputation, social and economic interests of the accused from the damage which flows from a pending charge. It also protects the interests of the public, including victims and witnesses, and ensures the effective utilization of resources. Additionally, it lessens the length of the periods of anxiety for victims, witnesses, and their families and increases public trust and confidence in the justice system."

16. Therefore, in conformity with the Constitution, courts should shun situations where an accused’s right to a fair trial is prejudiced by virtue of undue delay. Courts possess the power to take appropriate action to prevent injustice. This power is derived from the public interest that trials are conducted fairly and that as far as possible the accused is tried without unreasonable delay the end goal being to achieve prompt justice in criminal cases.”

17. The Supreme Court further held that six-year delay in conclusion of a criminal trial is undue delay as follows:“91. In the instant matter, the delay of over six years in our opinion, defeats the intention of the framers of the Constitution and of Parliament to have criminal trials concluded expeditiously. The guarantee to have a criminal trial conducted without undue delay relates not only to the time by which a trial should commence but also the time by which it should end, judgment rendered and any applicable appeals or reviews completed.”Consequently, the Supreme court made an order “iii. In view of the inordinate delay of the original murder trial, occasioned by Appeals relating to an interlocutory matter, we direct that the substantive matter be heard and determined on the basis of priority.”

18. From the record, it is quite clear that this matter started way back as 2015; the respondents herein were acquitted by the trial court and thereafter, the applicant filed before this court a petition of appeal via Criminal Appeal No 19 of 2019. The same having been set down for hearing, the applicant failed to serve the hearing notice upon the respondents citing reasons that it could not trace their whereabouts.

19. In the same breadth, in the case of Republic v Abdikadir Ahmed Mohamed [2013] eKLR where Mutuku, J, held that the court will not be party to any delay in the conclusion of a case and invoked article 50 (2) (e) and 159 (2) of the Constitution stating as follows:“to allow a case to go on and on without concluding it, especially when it is obvious that the officers responsible for securing the attendances of witnesses have failed in so doing, can be termed as unreasonable delay.”

20. Being guided by the above authorities and considering the grounds in support of the application, I find that no good reasons have been given on the basis of which the court can allow the application.

21. The application is bereft of any merit and it is hereby dismissed.

22. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 3RD DAY OF OCTOBER, 2022. L. NJUGUNAJUDGE…………………………………………for the Applicant………………………………………for the Respondents