[2020] KEHC 1154 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KIAMBU

CRIMINAL APPEAL NO 34 OF 2018

REPUBLIC........................................................................... APPELLANT

VERSUS

JAMES MAINA NGANGA Alias

APOSTLE NG’ANG’A..............................................1ST RESPONDENT

SIMON MAINA KURISA....................................... 2ND RESPONDENT

CHRISTOPHER NZILU NZIOKA.........................3RD RESPONDENT

PATRICK KAHINDI BAYA.................................... 4TH RESPONDENT

(Being an appeal from the Ruling delivered on 4th May 2018 by the Senior Principal Magistrate Hon. Mr. G.H. Oduor in Limuru Traffic Case No. 730 of 2015)

RULING

1. An appeal was filed by the state against a Ruling delivered by the Learned Trial Magistrate G.H. Oduor in the case Traffic Case No. 666 of 2015 at Limuru Chief Magistrate’s Court. By that ruling the learned Magistrate acquitted the three Respondents, James Maina Ng’ang’a alias Apostle Ng’ang’a, Simon Maina Kuria, Christopher Nzilu Nzioka and Patrick Kahindi Baya, under Section 210 of the Criminal Procedure Code(CPC). The Petition, herein, of appeal against that Ruling was filed by the state, before this court, on 22nd May 2018.

2. There are two Preliminary Objections filed by the 1st and 2nd Respondent. Those objections are the subject of this Ruling. Both those objections object to this appeal on the ground that the same was filed out of time as provided under Section 349 of Criminal Procedure Code.

3. Parties submitted in respect to those two preliminary objections both in writing and orally before court.

4. The objections were supported by all the Respondents in the present appeal. All Respondent submitted that this appeal was filed out of time as provided under Section 349 Criminal Procedure Code. To support that stand the case Samson Owiti Otambo v Republic (2018) e KLRwas cited where the judge stated:

“7. The Jurisdiction of this Court to hear and determine the appeal is determined by the appeal being filed within the statutory period or within the enlarged period of time with leave of Court.”

5. The Respondents also cited the case of Michael Onyango Owala -v- Republic (2018) e KLR as follows:

“15. Where an appeal is filed outside the statutory period and no effort is made to seek to validate such an appeal by seeking and obtaining an order under the proviso to Section 349 of the Criminal Procedure Code to enlarge the time for filing of such an appeal or to have the appeal as filed out of time deemed to be duly filed, such an ‘appeal’ is no appeal at all. It is incurably and fatally incompetent and amenable to be rejected without delving into the merits thereof. Such is not a procedural error. It is an error that goes to the root of the appeal as it is the leave that would accord this court the jurisdiction to hear and determine an appeal that is filed out of time.”

6. The Respondents also relied on a court of appeal decision where the court of appeal was called upon to determine the competence of an appeal before it where the Appellant had failed to filed a Notice of Appeal. This is the case Faisal Mohamed Ali alias Feisal Shahbal -v- Republic (2015) e KLR where the court stated:

“Accordingly the Court cannot exercise its adjudicatory powers conferred by law or the Constitution where the appeal is incompetent and that an incompetent appeal divests a court of jurisdiction to consider factual or legal controversies embodied in the relevant issues.”

7. The Respondent by their preliminary objections seek the striking out of the appeal.

8. The state responded in opposition to the preliminary objections. The state commenced in its submissions by stating that although the Ruling being appealed was delivered on 4th May 2018 the Learned Trial Magistrate’s reasons for that Ruling were delivered on 7th May 2018. That the state would not have known the reasons for the trial court’s 4th May 2018 Ruling and could not therefore file an appeal nor did time as provided under Section 349 Criminal Procedure Code begin to run until 7th May 2015 when those reasons were delivered. The state argued that going by the provisions of Section 57 (a) of the Interpretation and General Provisions Act, Cap 2, the appeal should have been filed on 21st May 2018. The state further submitted that if the court was not convinced that the appeal was filed within time that the court should invoke Section 349 Civil Procedure Code and admit the appeal. That the court has that discretion to admit an appeal filed outside the 14 days period provided under Section 349 Civil Procedure Code. It is the state’s point of view that the court does not require an application to be made for it to permit an appeal filed out of time to be admitted.

9. The state further submitted that the court can be persuaded to do substantive justice by allowing an appeal filed out of time to be admitted. In support of that proposition the state relied on the case Kennedy Maina -v- Republic (2019) e KLR where the Appellant’s appeal though filed out of time there was however on the court file an application to file the appeal out of time but which application was not heard or determined before the appeal was heard. The Learned judge in her judgment after hearing that appeal stated this:

“As it stands now the appeal was filed out of time and no leave to appeal out of time was granted. The issue is whether the court should proceed to strike out. In a persuasive decision in Misc Criminal Appeal No. 222/2013 H. C. Nakuru Miano & Another –v- Eliud Kariuki Ngige & Others, it was stated –

“None the less, the court should only strike out petitions in the clearest of cases. The delay was only 17 days and cannot be deemed inordinate. Despite the lack of an explanation it would be unjust to strike out the petition on the ground of the delay alone.”

The State did not address the issue that the appeal was filed out of time in their submissions. The court should not therefore strike out the appeal but exercise its discretion to hear the appeal and determine it on merits. Article 159(2)(a) of the Constitution mandates the court to do substantial justice other than determine matters on procedural technicalities. It provides:

“In exercising Judicial Authority, the Courts and tribunals shall be guided by the following principles –

- Justice shall be administered without undue regard to procedural technicalities;”

As the matters stand, since the appeal has been heard and submissions filed and what is remaining is for me to give Judgment, I should proceed to do so. At this point in time failure to consider the application for leave to file appeal out of time is a technicality.”

ANALYSIS AND DETERMINATION

I have considered the parties submission and authorities. In my view there are three broad issues that require my determination. They are:

(a) What is the period that a criminal appeal should be filed and how is that period computed.

(b) Does the court have discretion to admit an appeal filed out of time without leave.

(c) Are the Preliminary objections properly brought before court.

10. The period within which a criminal appeal should be filed is statutorily provided under Section 349 Criminal Procedure Code which provides:

349. An appeal shall be entered within fourteen days of the date of the order or sentence appealed against:

Provided that the court to which the appeal is made may for good cause admit an appeal after the period of fourteen days has elapsed, and shall so admit an appeal if it is satisfied that the failure to enter the appeal within that period has been caused by the inability of the appellant or his advocate to obtain a copy of the judgment or order appealed against, and a copy of the record, within a reasonable time of applying to the court therefor.(emphasis mine)

11. That section speaks for itself. It provides that an appeal “shall be entered within 14 days of the date of order or sentence appealed against.” In other wards an appeal shall be filed within 14 days from the date of the Order or sentence appealed against.

12. The state argued that in computation of the 14 days’ period Section 57 of Cap 2 should be considered. I would respond by saying: yes, Section 57 ought to be considered but not in the manner submitted by the state.

Section 57 of Cap 2 provides:

"In computing time for the purpose of a written law, unless the contrary intention appears-

a) a period of days from the happening of an event or the doing of an act or thing shall be deemed to be exclusive of the day on which that event happens or the act or thing is done,

b) if the last day of the period is Sunday, or a public holiday or all official non-working days (which days are in this Section referred to as excluded days), the period shall include the next following day not being an excluded day.

c) where an act or proceeding is directed or allowed to done or taken on a certain day, then if that day happens to be an excluded day, the act or proceeding shall be considered as done or taken in due time if it is done on the next day afterwards, not being an excluded day.

d) where an act or proceeding is directed or allowed to be done or taken within any time not exceeding six days, excluded days shall not be reckoned in the computation of time."

13. Section 57 (a) of Cap 2 excludes the day the order or sentence was pronounced in the computation of time. Section 57 (b) excludes holiday and allows an appeal whose last day of filling falls on a public holiday such an appeal is to be filed the next day which is not excluded. Section 57 (d) provides that in the computing excluded days where the act, or in this case the filing of an appeal, is required to be done within a time not exceeding six days.

14. From the above analysis of that section it becomes clear that the argument of the state that week-ends should not be included in computation of time of filing an appeal is not entirely correct. Those excluded days will not be excluded in the computation of time unless the last day falls on the excluded day. By my holding therefore it means that whether the day of the Ruling shall be reckoned to have been on 4th May 2018 or 7th May 2018, the Sundays in between the following 14 days are counted in the computation of the 14 days period. The state therefore erred to have argued that those Sundays would not be counted in the computation.

15. To respond to issue (a) above the period that a criminal appeal should be filed, it is 14 days and, in the computation of those 14 days the day on which the order or sentence was passed is excluded. Similarly, if the last day, that is the fourteenth day, falls on Sunday or a public holiday the appeal should be filed the next day.

16. The next issue to consider requires determination whether the court has discretion to admit an appeal filed out of time without leave of the court. Section 349 Criminal Procedure Code provides that the court may admit an appeal after the period of 14 days. Section 349 Criminal Procedure Code use of that word “admit”, in my view, implies that the court will admit an appeal already in existence. In other words, that Section empowers the court to accept an appeal filed outside the 14 days’ period as valid. That means that under Section 349 Criminal Procedure Code the court can validate or authorize an appeal filed outside the 14 days period. Until that authorization the appeal filed outside the 14 days is incompetent. It is made competent by the authorization or when it is admitted under Section 349 Criminal Procedure Code.

17. Can the court admit such incompetent appeal filed outside the 14 days’ period? The answer is in affirmative, but such an admission can only be on the court being moved by a party. Ours is adversarial legal system where the court as an impartial arbiter receives evidence from opposing parties and makes a determination based on that evidence and the law. The court cannot on its own motion, as suggested by the state admit an appeal under Section 349 Criminal Procedure Code if such prayer is not sought before it. If the court was to do so it would constantly have to second guess what orders the parties before it require. That is unacceptable in law.

18. The state also erred to submit that the court can, in consideration of substantive justice, admit the appeal out of time. What is before court and is the subject of this ruling is the Respondent’s preliminary objection not the states application for admission of the appeal. The court is presently therefore not moved by the state to apply substantive justice

19. In answer to issue (b) above the court does have discretion as provided under Section 349 Criminal Procedure Code to admit an appeal filed out of time but that discretion can only be exercised on the court being formally moved by application. The state erred to submit that the court should admit the appeal in exercise of substantive justice. The court needed to be moved as per Section 349 of the Criminal Procedure code. Courts have been consistent in holding that it is important for parties to follow the rules of procedure. The supreme court in that regard expressed itself in the case Moses Mwicigi and 14 Others -vs- Independent Electoral and Boundaries Commission and 5 OthersSupreme Court Petition No. 1 of 2015 in which the Supreme Court held:

“This Court has on a number of occasions remarked upon the importance of rules of procedure, in the conduct of litigation. In many cases, procedure is so closely intertwined with the substance of a case, that it befits not the attribute of mere technicality. The conventional wisdom, indeed, is that procedure is the handmaiden of justice. Where a procedural motion bears the very ingredients of just determination, and yet it is overlooked by a litigant, the Court would not hesitate to declare the attendant pleadings incompetent.”

20. Section 349 Criminal Procedure Code is clear that the court can admit an appeal filed out of time but then the court must be moved by application. It is perhaps on being moved that the court can exercise substantive justice. This indeed was the finding of the court in the case Michael Onyango Owala -v- Republic (supra).

21. I am not persuaded that the court can move to exercise its discretion to permit an appeal filed out of time when the court is not moved, therefore I am unable to follow the finding in the case Kennedy Maina v Republic (supra).

22. I now move to consider issue (c) above, that is whether the two preliminary objections are proper preliminary objections.

23. I will begin by considering the case JSK -v- WKW (2019) e KLR thus:

“4. Having considered the preliminary objection, the issue to be determined is whether the preliminary objection should be allowed. A valid preliminary objection must be on a pure point of law. In Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd (1969) EA 696, the locus classicus on preliminary objections in this region, Law JA stated:

So far as I’m aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.

2. For a preliminary objection to succeed the following tests ought to be satisfied: Firstly, it should raise a pure point of law; secondly, it is argued on the assumption that all the facts pleaded by the other side are correct; and finally, it cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. A valid preliminary objection should, if successful, dispose of the suit.”

24. The two objections raised herein must therefore consist of pure point of law which has been pleased or which arises from implication out of the pleadings and which if argued will dispose of a suit.

25. Do the preliminary objections raised hereof satisfy the requirements of a proper preliminary objection? In my view they do not. There are two reasons that support that finding.

26. Firstly there was controversy on whether the Ruling of the trial Court was on 4th or 7th May 2018. The reason for the controversy was because the trial court acquitted the respondents on 4th May 2018 and proceeded to give reasons for that acquittal by it Ruling of 7th May 2018. Because of the controversy between the state and the Respondent on when the Ruling being appealed was delivered the preliminary objections then would seem to require this court to exercise its discretion in determining when the Ruling was delivered. It is for that reason the preliminary objections fail to satisfy the legal requirement of preliminary objection that it should be argued on the assumption that the facts as pleaded are correct. The fact which is in controversy is whether the Trial Court’s Ruling was on 4th or 7th May 2018.

27. Secondly the preliminary objections fail because until the criminal appeal filed by the state is heard, as stated before above has an opportunity to seek by application for the appeal to be admitted out of time. Had the Respondents waited to raise their objections at the final hearing of this appeal they would have succeeded in the dismissal of the appeal because the appeal as it is now it is not an appeal because it has not been admitted by this Court out of time. The window or opportunity of seeking the appeal to be admitted out of time as provided under Section 349 Criminal Procedure Code remains open until the hearing of the appeal. It is because of this second reason that I find that the preliminary objections must and do fail.

28. The Respondents placed reliance on the Supreme Court’s decision Teachers Service Commission -v- Simon P. Kamau and 19 Others (2015) e KLR but I need to state that in that decision the Supreme Court based its decision on its Rules which are at divergence to the Rules of this court and therefore that decision was not of assistance to this court.

29. In conclusion therefore I find as follows:

(a) A criminal appeal statutorily under Section 349 Criminal Procedure Code should be filed within 14 days from the date the Order or sentence being appealed.

(b) The computation of those 14 days must be calculated in compliance to section 57 of interpretation and General Provision Act.

(c) The court is empowered by Section 349 Criminal Procedure Code to admit an appeal filed out of time, that is an appeal already filed and in existence but to do so the court has to be moved by an application.

(d) A preliminary objection must be based on pure point of law which has been pleaded and which if argued may dispose of the suit.

30. In the end therefore I make the following order:

The preliminary objections dated 26th August and 28th August 2020 for the reasons set above are dismissed.

31. Orders Accordingly.

SIGNED AND DELIVERED VIRTUALLY THIS 10th DAY OF DECEMBER 2020.

MARY KASANGO

JUDGE

10th December 2020

Before Justice Mary Kasango

C/A - Kevin

Mr. Nyakudi for 1st Respondent

Mr. Cliff Oduk for 2nd Respondent

Mr. Nzioka in person – 3rd Respondent

Mr. Mokhaha for 4th Respondent

For the State – Mr. Kasyoka holding brief for Ms Mwaniki and Mr Owiti for Appellant

COURT

Ruling virtually delivered in their presence.

MARY KASANGO

JUDGE