[2022] KEHC 15513 (KLR)

Republic v Kibe (Criminal Appeal 21 of 2018) [2022] KEHC 15513 (KLR) (Crim) (10 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15513 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Appeal 21 of 2018

LN Mutende, J

November 10, 2022

Between

Republic

Appellant

and

Joel Kamau Kibe

Respondent

Ruling

1. The Respondent herein was acquitted in Milimani Criminal Traffic Case No 2808 of 2016 of the offence of Careless Driving Contrary to Section 49 (1) of the Traffic Act cap 403 of the Laws of Kenya. The Appellant being aggrieved proffered Criminal Appeal No 132 of 2017 on October 3, 2017 that was later withdrawn on March 21, 2022 before Nzioka J. It turns out that the instant appeal was filed, admitted and directions given for parties to file written submissions to dispose the appeal.

2. When the matter came up on November 3, 2022, for purposes of confirming filing of submissions, the Respondent made an oral application seeking to strike out the appeal, the main ground being that the current appeal is an abuse of court process. That it is not clear how the two appeals were filed and that the current appeal was filed when another appeal was pending.

3. The Respondent argues that the appeal amounts to double jeopardy and that a person cannot be tried twice.

4. The Appellant opposed the objection raised. It stated that the appeal was filed inadvertently. That the court has not determined any issue on the appeals and that Criminal Appeal No 132 of 2017 was not dismissed but withdrawn. That the current appeal was not filed in abuse of court process since it was filed after the former appeal was withdrawn.

5. From the record, Criminal Appeal No 132 of 2017 came up before Nzioka J on March 21, 2022 when Ms Akunja for the Republic applied to have the matter withdrawn. There was no reason given for that decision although it can be noted that the court had issued a Notice to show cause why the appeal could not be marked as abandoned against the Appellant. Counsel for the Respondent, Mr Njenga, who was present did not object to the withdrawal.As stated above Criminal Appeal No 132/2017 was filed on October 3, 2017, while the instant appeal was filed on January 26, 2018, following leave to file the appeal out of time having been granted by the court on January 23, 2018.

6. The Respondent’s argument that the current appeal was filed during the pendency of another appeal following the same decision is therefore true. However, whether the existence of the two appeals amounted to an abuse of due process is a different issue.

7. The definition of abuse of court process was addressed in the civil case ofMuchanga Investments Limited v Safaris Unlimited (Africa) Ltd & 2 OthersCivil Appeal No 25 of 2002 [2009] KLR 229, where Court of Appeal referred to what can be termed as a general view of what would amount to abuse of judicial process:“The term abuse of court process has the same meaning as abuse of judicial process. The employment of judicial process is regarded as an abuse when a party uses the judicial process to the irritation and annoyance of his opponent and the efficient and effective administration of justice. It is a term generally applied to a proceeding, which is wanting in bona fides and is frivolous, vexatious or oppressive. The term abuse of process has an element of malice in it...The concept of abuse of judicial process is imprecise, it implies circumstances and situations of infinite variety and conditions. It’s one feature is the improper use of the judicial powers by a party in litigation to interfere with the administration of justice. Examples of the abuse of the judicial process are: -i.Instituting multiplicity of actions on the same subject matter against the same opponent on the same issues or a multiplicity of action on the same matter between the same parties even where there exists a right to begin the action.ii Instituting different actions between the same parties simultaneously in different courts even though on different grounds.iii.Where two similar processes are used in respect of the exercise of the same right for example, a cross appeal and a respondent’s notice.iv.Where there is no iota of law supporting a Court process or where it is premised on frivolity or recklessness.”

8. In criminal prosecution the Director of Public Prosecution is bound by Article 157 to act in public interest and to avoid abuse of court process. In the case ofJames Karuga Kiiru v Joseph Mwamburi and 3 OthersNrb CA No 171 of 2000 the court stated that:“To prosecute a person is not prima facie tortuous, but to do so dishonestly or unreasonably is, the burden of proving that the prosecutor did not act honestly or reasonably being on the person prosecuted..”

9. In the instant case the court cannot conclude that the appellant’s actions were intentional and malicious. It is apparent that it was a clear case of inadvertence. Neither the Appellant nor the Respondent advised the court in Criminal Appeal 132 of 2017 on existence of this matter for the court to consider the appropriate action at that stage.

10. Further, Criminal Appeal No. 132 of 2017 seemed to have been brought out of time and without leave of court. On the other hand, the current appeal was brought after Ngenye J (As she then was) who granted leave on January 25, 2018, to the Appellant to appeal the judgement issued in Milimani Criminal Traffic Case No 2808/2016 delivered in April, 2017.

11. All this leads to the conclusion that the Appellant’s actions were not ill motivated or an abuse of court process. Further the Respondent has not demonstrated any prejudice or injustice that would result if this matter were to proceed.

12. This court has been enjoined to discharge its mandate under Section 354 of the Criminal Procedure Code.The record is clear, at the time of admission the first appeal had already been withdrawn. This appeal was admitted on April 1, 2022 while Appeal No 132/2017 was withdrawn on March 21, 2022. It cannot be stated that issues in this appeal are res-subjudice

13. The bone of contention is whether filing the second appeal amounted to double jeopardy. Criminal Appeal No 132 of 2017 was filed first but it was never determined on merit. The matter was withdrawn at the preliminary stage after the court issued a Notice to show cause against the Appellant. As such no finding or judgement flowed from that case to inform the Respondent’s fear that he is being tried twice over the same lower court judgement.

14. The defence of autrefois acquit’ which the Respondent has cited in his submissions to strike out this appeal is captured under Article 50(2) (a) of the Constitution. This is the foundation of the legal protection against “double jeopardy” which gives right to the defence of ‘autrefois convict’ or ‘autrefois acquit’

15. Section 50(2) (a) of the Constitution provides:“50(2) Every accused person has the right to a fair trial which includes the right –(a)Not to be tried for an offence in respect of an act or omission for which the accused person has previously been either acquitted or convicted.”Therefore, this defence can only be qualified where there is an existing finding over the same issues.

16. The reasoning behind this principle is quite clear – there must be finality in legal processes. An accused person must be protected from the prejudice he would suffer by going through a second trial after the State has seen his entire defence and to protect citizens from undue oppression by the State.( See the case of Nicholas Kipsigei Ngetich & 6 others v Republic [2016] eKLR). But, as afore stated, this was not the case in the instant case.

17. In the result, I find the argument raised by the Respondent lacking merit, accordingly, it is rejected.

18. It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLYTHROUGH MICROSOFT TEAMS AT NAIROBI,THIS 10THDAY OF NOVEMBER, 2022. L. N. MUTENDEJUDGEIN THE PRESENCE OF:Ms. Adhiambo for AppellantMs, Kihara for RespondentCourt Assistant - Mutai