Musa Mwani Abulwa v Republic [2016] KEHC 2368 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAKAMEGA

CRIMINAL APPEAL NO. 28 OF 2016

BETWEEN

MUSA MWANI ABULWA……..……………………..……..…..APPELLANT

AND

REPUBLIC…………………………………………………….RESPONDENT

(Being an Appeal from Judgement of Hon. M.L. Nabibya SRM delivered on 18th March, 2016 in Butali SRM Cr. Case No. 374 of 2014)

R U L I N G

Introduction

1. The appellant herein was charged with the offence of obtaining money by false pretense contrary to Section 313 of the Penal Code, cheating contrary to Section 315 of the Penal code and intermeddling with the property of a deceased person contrary to Section 45(1) of the Law Succession Act Cap 160 Laws of Kenya.

2. He was found guilty on both the 1st and 2nd counts and fined kshs.50,000/- in default  to serve 2 years imprisonment in count 1 and in count 2 he was discharged under Section 35(1)  of the Penal Code.  He was dissatisfied and aggrieved by the decision of the trial magistrate and appealed against both the conviction and sentence.

3. The appeal herein is yet to be concluded.  The appellant has filed an application by way of Notice of Motion seeking for ORDERS that pending the hearing and determination of this appeal there be a stay of any proceedings and execution in Butali SRMCC No. 128 of 2016.  The application is premised on the grounds that Butali SRMCC No. 129 of 2016 is directly related to the appeal herein which has an overwhelming chance of success.

4. Summons and pleadings were served upon him on 05. 09. 2016 but he wants this appeal to be heard and determined before any proceedings and executions commence in any court.  He claims that he will suffer irreparable loss if proceedings and execution in the civil suit are not stayed.  The application is supported by his own supporting affidavit sworn on the same date.

5. The application was canvassed orally.  The appellant’s claim is that since he has filed the appeal herein which to him has high chances of success the Civil Suit being SRM CC No. 129/2016 should be stayed pending the hearing of the appeal.  The civil case is for damages in connection with the Criminal Case appealed against.

6. Mr. Oroni prosecution counsel for the ODPP has opposed the said application.  He submits that the complainant in criminal case No. 374/2014 who bought land parcel No. N. Kabras/Chesero/943 from the appellant and paid kshs.125,000/= cannot be stopped from commencing a Civil Suit against the appellant.

7. He submits further that any fines paid went to the state and not the complainant.  He prays that the application herein dismissed.

Determination

8. The main issue for determination is whether this court can stay the Civil proceedings in Butali SRM CC No. 129 of 2016 pending the hearing and determination of the appeal herein.

9. It is apparent from the record that the appellant went through a full trial and was found guilty of the offence, convicted and sentenced.  He has appealed against the conviction and sentence to this court and therefore this court cannot speculate on whether the said appeal has any chance of success or not.  It is upon the appellant to convince this court that his appeal is arguable and has high chances of success to sway the mind of the court to think otherwise.  The appellant has not endeavoured to prove this fact.  His only ground is that since the appeal is before this court, it will succeed.

10. The appellant has also not demonstrated how he will suffer irreparable/Substantial loss if the prayer sought is not granted.

11. This court’s discretion in issuing the orders sought by the appellant are wide but for the appellant to benefit from such discretion, he must satisfy the court that his appeal has high chances of success and that should the order of stay not be granted the appeal if successful would be rendered nugatory.

12. These principles are now well settled in a host of decisions of not only this court but also of the court of Appeal.  For the above reasons I find that the application by the appellant has not merit.  As properly stated by the trial court in its judgment, the case involving the appellant was both civil and criminal in nature and there was nothing illegal if the complainant pursued a criminal cause which was determined.  The complainant has now commenced the civil cause.  It is therefore incumbent upon the appellant to file a defence before judgment is entered against him and to proceed with the civil case in accordance with the law.  The application is therefore dismissed in its entirety.

Orders accordingly

Ruling delivered, dated and signed in open court at Kakamega this 26th day of October, 2016

RUTH N. SITATI

JUDGE

In the presence of;-

…....Present in person…………………….....Appellant

……Mr. Oroni(present)………………….........Respondent

……Mr. Polycarp……………………………………….Court Assistant