Crossley Holdings Limited v Director of Public Prosecutions,Ethics and Anti-Corruption Commission & Miwani Sugar Company (1989) Limited [2015] KECA 51 (KLR)

IN THE COURT OF APPEAL

AT KISUMU

(CORAM: MARAGA, AZANGALALA & KANTAI  JJ.A)

CIVIL  APPLICATION NO. 68 OF 2014 (UR NO. 47/14)

BETWEEN

CROSSLEY HOLDINGS LIMITED……………………..............…APPLICANT

AND

DIRECTOR OF PUBLIC PROSECUTIONS........................1ST RESPONDENT

ETHICS AND ANTI-CORRUPTION COMMISSION..........2NDRESPONDENT

MIWANI SUGAR COMPANY (1989) LIMITED................3RD RESPONDENT

(Being an Application for restoration and re-hearing of the appeals herein Civil Appeal No. 1 of 2013, Director of Public Prosecutions- v- Crossley Holdings Limited & 2 Others and Civil Appeal No.2 of2013 Ethics and Anti-Corruption Commission -v- Crossley Holdings Limited and 2 Others from the Judgment of the High Court of Kenya at Kisumu (Ali-Aroni,J)

Dated 18th May, 2012

in

H.C. MSC. APPLICATION NO. 12 OF 2010)

*********************************

RULING OF THE COURT

1. On 15th January, 2010, the Ethics and Anti-Corruption Commission (the Commission) published its fourth quarterly report for the year 2009 covering the period of 4th October, 2009 to 31st December, 2009 in Kenya Gazette Notice No.353 of2010.  The relevant portion of that Gazette Notice alleged that in a purported execution of a court decree, Crossley Holdings  Limited (the applicant) fraudulently acquired the ownership of a public piece of land comprising 9,394 acres and valued over Kes. 2 billion belonging to Miwani Sugar Company (1989) Limited [in receivership].Pursuant to the Commission's recommendation based on that report, the Attorney General instructed the Director of  Public Prosecutions (DPP) to charge a number of personalities including the applicant and its directors for various offences.

2.  In  its  notice of  motion dated 23rd October, 2014, the applicant alleged, inter alia, that having already been condemned unheard, it was unlikely to get a fair trial. It therefore sought orders of certiorari to quash the decisions of both the Commission and the Attorney General to prosecute it and prohibition to prohibit the DPP from proceeding with any criminal prosecution against it

3.  In her judgment delivered on 18th May, 2012 in that judicial review application, the Hon. Lady  Justice  Ali-Aroni acceded  to  the applicant's pleas and quashed the decisions of both the Commission and  the  Attorney  General  to  prosecute  it  and by   an  order  of prohibition restrained the DPP from prosecuting it.

4.  Aggrieved by that decision,  the  DPP and  the Commission respectively filed Civil Appeal Nos. 1 and 2 of 2013 before this Court naming the applicant as the respondent and Miwani  Sugar Company (1989) Limited as well as the Attorney General as interested parties. Those appeals were consolidated when they came up for hearing on 19th June, 2014.   Upon satisfying itself that the applicant's counsel had been served with the hearing notice for that day, this Court went ahead and heard the appeal ex-parte and delivered its ruling on 23rd  October, 2014 allowing it.

5.  On  the same day, the  applicant filed this application under the provisions of Section 3A of the Appellate Jurisdiction Act and also under Rules 42, 47 and 102 (2) of the Court of Appeal Rules and sought orders of stay of this Court's said Judgment and/or an order restraining the DPP from proceeding with any criminal proceedings against it, its Directors and/or employees pending the inter-partes re­ hearing and determination of the two appeals.  It also sought any other or further relief that this Court may deem fit to grant.

6. Basing his  submissions on  the  averments  in  the  affidavit  of Sukhwinder Singh Chatthe, a Director of the applicant, sworn on 23rd October, 2014 in support of this application, Mr. Gichaba, learned counsel  for the applicant, submitted that the applicant did not know of the hearing date of the two appeals, the hearing notice having been served upon its erstwhile firm of advocates, Messrs Wangai Nyuthe & Company Advocates. In support of that argument, counsel referred us to a letter dated 24th  June, 2014 from that firm admitting that they had indeed been served with a hearing notice but failed to appear because they thought the applicant, having not got in touch with them for quite some time, had instructed other counsel  to handle the matter on its behalf.  Mr. Gichaba therefore pleaded with us not to punish the applicant for a mistake committed by its counsel  and instead urged us to allow this application and re-hear and determine the appeals on merit.

7.  Messrs  Sirtuy,  Murei  and  Bundotich, learned  counsel  for  the respondents submitted that this application has no merit and even if it is granted, it will serve no useful purpose because the applicant has not sought the Vacation or the setting aside of this Court's judgments on the two appeals. They therefore urged us to dismiss this application with costs.

8.  We have considered the application, the averments in the supporting affidavit as well as the submissions by counsel on both sides. It is clear to us that for undisclosed reasons the applicant lost touch with his advocates. That notwithstanding, we find that Messrs  Wangai Nyuthe advocates, being on record for the applicant and having been served with the hearing  notice ,should have at the very least informed the applicant of  the  hearing  date but  they  did   not.  That notwithstanding and the matters giving rise to this application being criminal in nature with penal consequences, we are of the view that though the applicant has not conducted itself diligently in this matter, it should be heard on the two appeals.   Consequently we allow this application and direct that the two  appeals be re-heard inter-partes within sixty days .Pending the re-hearing and determination of those appeals, we  hereby restrain  the DPP from proceeding with any criminal  charges  against  the   applicant, its  Directors  and/or  its employees. As it is the applicant and its erstwhile advisors who failed to attend court during the hearings of the appeal thus necessitating this application, we order that the applicant pays the costs of this application to the respondent and the interested parties.

DATED and Delivered at Kisumu this 5th day of February ,2015

D.K.MARAGA

………………………

JUDGE OF APPEAL

F.AZANGALALA

………………………

JUDGE OF APPEAL

S.ole KANTAI

………………………

JUDGE OF APPEAL

I certify that this is a true copy

of the original.

DEPUTY REGISTRAR