Prasul Jayantilal Shah v Republic; Joseph Karuoro Claudio (Interested Party) [2022] KEHC 1778 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT MACHAKOS

(Coram: Odunga, J)

MISC. CRIMINAL APPLICATION NO. E070 OF 2021

PRASUL JAYANTILAL SHAH.................................................APPLICANT

-VERSUS-

REPUBLIC..............................................................................RESPONDENT

JOSEPH KARUORO CLAUDIO............................INTERESTED PARTY

JUDGEMENT

1. The Applicant herein filed a Notice of Motion Application dated the 4th of November 2021 seeking in substance an order that pending the hearing and determination of Criminal Appeal No.  E070     of 2021: Prasul Jayantilal Shah -vs- Republic, the court be pleased stay the Sentencing scheduled for 19th November 2021 in Mavoko Magistrate's Court Criminal Case No. 238 of 2019: Republic -v- Prasul Jayantilal Shah.

2. According to the Applicant, he is a director in Megvel Cartons Limited, a company which owns a property L.R. No. 25064 (I.R. No. 85088) situate in Mavoko. However, a Company by the name Diesel Care Limited also claims ownership of the suit property by dint of a Title bearing L.R. No. 1504/11 (I.R. No. 85400) allegedly registered on the 30th of May 2001. Vide court proceedings instituted by Diesel Care Limited in ELC Case No. 166 of 2011 Diesel Care Limited -versus- Megvel Cartons Limited & 2 Othersit was sought to injunct the Applicant’s Company from interfering with its alleged proprietorship of the suit property. Subsequently, judgment was delivered on the 26th of January 2018 in favour of Diesel Care Limited.

3. Dissatisfied with the said judgement, the Applicant’s company filed Civil Application No. 64 of 2018 (UR 56 of 2018)Megvel Cartons Limited-versus-Diesel Care Limited &2 Others,and Civil Application No.65 of 2018 (UR 57 of 2018)Megvel Cartons Limited-versus-Diesel Care Limited & 2 Others for stay of execution of the decree and Judgment of the ELC Court pending the hearing and determination of Civil Appeal No. 70 of 2018:Megvel Cartons Limited-versus-Diesel Care Limited & 2 Othersand Civil Appeal No. 71 of 2018:Megvel Cartons Limited-versus-Diesel Care Limited & 2 Others.

52. Vide a ruling dated 20th April, 2018, the Court of Appeal granted the Stay of Execution in Civil Application No 64 of 2018 Megvel Cartons Limited -versus- Diesel Care Limited & 2 Others, effectively staying the findings and determination of the Environment and Land Court and maintaining the status quo in allowing the Applicant’s Company to continue to occupy the suit property pending the determination of the main Appeal.

4. However, applicant herein was arrested on 1st April 2019 and charged in Criminal case No. 238 of 2019: Republic vs- Prasul Jayantilal Shahwith the offences of forcible detainer contrary to section 91 of the Penal Code, forgery contrary to Section 350(1) of the Penal Code and conspiracy to defraud contrary to section 317 of the Penal Code which charges were instituted as a result of a complaint by Joseph Karuoro Claudio (hereinafter referred to as ‘the Complainant’), the director of Diesel Care Limited.

5. Aggrieved by the charges brought against him, the Applicant filed a Constitutional Petition in Petition No. 20 of 2019: Prasul Jayantilal Shah & Megvel Cartons Limited -versus- Inspector General of the National Police Service & 3 Others seeking, inter alia, that the Court finds that the Respondents had acted in violation of the Applicant’s rights to human dignity, freedom and security of the person, fair administrative action, fair hearing as well as declare that the proceedings and charges in Criminal case No. 238 of 2019: Republic vs- Prasul Jayantilal Shah are illegal and in contravention of the orders of the Court of Appeal.

6. That petition was however dismissed vide a Judgment rendered on the 28th of October 2020 in which the Judge stated that the criminal matter should be allowed to proceed and each party have its day in court. Dissatisfied by this decision, the Applicant herein filed an Appeal being Civil Appeal No. E035 of 2021: Prasul Jayantilal Shah & Megvel Cartons Limited -versus- Inspector General of the National Police Service & 3 Others which remains undetermined. In the meantime, judgment was rendered in Criminal Case No. 238 of 2019: Republic vs- Prasul Jayantilal Shahon the 29th of October 2021 in which the trial magistrate convicted the Applicant of the offences of Forcible Detainer contrary to section 91 of the Penal Code and Conspiracy to Defraud contrary to section 317 of the Penal Code. Aggrieved by the decision of the Magistrates Court, the Applicant herein filed an Appeal against conviction before this Court in Machakos in Appeal No. E070 of 2021: Prasul Jayantilal Shah -versus- Republic and also instituted the present application.

7. According to the Applicant, the granting of an order for stay in criminal proceedings is only done after an exercise of extreme judiciousness and caution, as was stated in Goddy Mwakio & Another vs. Republic[2011] eKLR. While appreciating the ingredients requisite for the granting of an order for stay in criminal appeals, as was cited by the Court of Appeal in Manilal Jamnandas Ramji Gohil vs. Director of Public Prosecution [2014] eKLRwhich relied on the dicta in Trust Bank Limited and Another vs. Investech Bank Limited & 3 Others (Civil Application No. Nai 258 and 315 of 1999 (unreported) he maintained that he was seeking to convince the Court that the circumstances in this case are indeed exceptional and that the facts surrounding this Application meet the standard set in Trust Bank Limited above.

8. It was the Applicant’s case that his appeal in Criminal Appeal No. E070 of 2021:Prasul Jayantilal Shah -versus- Republicraises sufficiently arguable points with an overwhelming chance of success. According to him, the Petition of Appeal dated 4th November 2021 divulges serious issues on constitutionality, the administration of justice and the liberty of the accused. According to him, his conviction arose out of an abdication of judicial duty, a gross misreading of the law, evident bias, a gross disregard of the law and evidence tendered and injudiciousness.

9. It was contended that the Honourable Magistrate in the trial court erred in law and in fact in convicting the Applicant with the offence of Forcible Detainer which offence is encapsulated under Section 91 of thePenal Codewhich reads that:

“Any person who, being in actual possession of land without colour of right, holds possession of it, in a manner likely to cause a breach of the peace or reasonable apprehension of a breach of the peace, against a person entitled by law to the possession of the land is guilty of the misdemeanour termed forcible detainer.”

10. As regards the elements requisite for the offence of forceful detainer, the Applicant cited Samson Kipusi & Another vs. Republic (2020) eKLR cited with favour the case of Julius Edapal Ekai vs. Republic (2018) in which the court held as follows:

“A literal reading of Section 91 of the penal code shows that the prosecution will only prove an offence of forceful detainer against an accused person if it demonstrates that:-

i. A person has actual possession of land.

ii. The person has no right over the land.

iii. The act of possession is against the interests of the legal owner, or the person legally entitled to the land; and

iv. The act of possession of the land is, therefore, likely to cause a breach of the peace or a reasonable apprehension of the breach of the peace.”

11. It was contended that it was not in dispute that the Company Megvel Cartons Limited, in which the Applicant is a director, is in actual possession of the property as has been for the past 12 years. The question of ownership of the suit property is heavily contested and is pending before the Court of Appeal. In a Ruling delivered on 20th April 2018 in Civil Application No. 64 Of 2018 Consolidated with Civil Application No. 65 of 2018: Megvel Cartons Limited -v- Diesel Care Limited & 2 Othersthe court found that the Applicant had an arguable appeal and stayed execution of the Judgment and Decree of the ELC Court in ELC No. 166 of 2011: Diesel Care Limited -v- Megvel Cartons Limited & 2 Others.

12. Among the questions that the Court of Appeal asked itself when granting the order of stay, it was contended, was how a property that was private land since the year 1931 could have been allocated by the Government in the year 2001.  According to the Applicant, with the question of ownership still pending determination and the order of stay in Civil Application No. 64 of 2018 Consolidated with Civil Application No. 65 of 2018: Megvel Cartons Limited -v- Diesel Care Limited & 2 Others,the conviction for the offence of forcible detainer was erroneous and in contempt of court.

13. It was contended that in the trial court, the Applicant called a number of witnesses and tendered a plethora of evidence before the Honourable Court to support his claim but the Learned Magistrate failed to take into account this evidence. It was submitted that the Trial Court wrongfully relied on the decision of the Environment and Land Court in ELC Court in ELC Case No. 166 of 2011: Diesel Care Limited -versus- Megvel Cartons Limited & 2 Others, yet the said Judgment was stayed by an order of the Court of Appeal which found that the Applicant herein had an arguable appeal and the same remains pending todate.  Further, your Lordship, the Honourable Magistrate in her Judgment failed to appreciate the fact that the jurisdiction to determine questions of ownership of land is with the Environment and Land Court by dint of Article 162(2) of the Constitution of Kenya 2010. Considering that the Court of Appeal granted an order of stay and there is pending Civil Appeal No. 70 of 2018: Megvel Cartons Limited -versus- Diesel Care Limited & 2 Others and Civil Appeal No. 71 of 2018: Megvel Cartons Limited -versus- Diesel Care Limited & 2 Others, the Magistrate had no jurisdiction or expertise to determine the ownership if the property and order the forfeiture of a title deed.

14. It was submitted that the suit property L.R. No. 25064 (IR 85088) has a clear line of history as to its origin and line of transmission and has been private property since 1/1/1931, evidence which, though crucial, the learned Magistrate ignored. The Applicant set out facts which, in his view the Learned Trial Magistrate ought to have considered but failed to do so.  He relied on the decision in Richard Kiptalam Biengo v Republic(supra) in which the Court adopted the decision of the High Court in Criminal Appeal No. 8 of 2012 Albert Ouma Matiya versus Republic, wherein the learned judge held that in order to establish the charge of forcible detainer under section 91 of the Penal Code:

“…the prosecution must establish that the accused is in actual possession of the parcel of land which he has no right to hold possession of. The prosecution will establish this if it adduces evidence which proves that the accused has no title or legal right to occupy the land.”

15. It was submitted that not only did the Prosecution fail to prove that the Title belonging to the Applicant’s Company was irregular, but it also neglected to discharge its duty of proving that the Complainant’s Title is lawful. With the Prosecution having failed to prove that the suit land is owned by the Complainant, the Trial Court ought to have found that the offence of forcible detainer was not proved. However, it was submitted, the Learned Magistrate failed to examine the evidence on record and the position of the law.

16. As regards conspiracy to defraud, it was submitted that the Learned Magistrate erred in convicting the Applicant herein of the offence of Conspiracy to Defraud which offence is captured in Section 317 of thePenal Code, yet the Prosecution failed to discharge its legal burden of substantiating its allegations and did not prove its case to the extent that there was no doubt that the Applicant committed the offence as alleged. It was contended that a crucial ingredient to the offence is the element of ‘conspiracy’, as was so held in Ronald Kiptoo Yator vs. Republic (2019) eKLR.

17. In this case the Applicant contended that the Learned Magistrate wrongly convicted the Applicant of the offence of Conspiracy to Defraud contrary to Section 317 of the Penal Code. It was therefore submitted that there was an abdication and dereliction of the Court’s duty in failing to enforce justice and the rule of law and that justice was gravely subverted.

20. According to the Applicant, he is likely to suffer immense prejudice as the Appeal as filed would be rendered nugatory if the orders sought in the present Application are not granted by this Court. He relied on the decision of the Court of Appeal in Perry Mansukh Kansagara & 3 others vs. Director of Public Prosecutions [2021] eKLR. It was further submitted that the Applicant herein is likely to suffer irreversible prejudice unless the orders sought are not granted. Firstly, the Learned Magistrate made an order of forfeiture of the Applicant’s Company’s Title to the suit property whose Title forms key evidence in the suit pending before the Court of Appeal in Civil Appeal No. 70 of 2018: Megvel Cartons Limited -versus- Diesel Care Limited & 2 Others and Civil Appeal No. 71 of 2018: Megvel Cartons Limited -versus- Diesel Care Limited & 2 Othersand in the Appeal in the present criminal suit. The Court of Appeal is yet to make a determination on the true legal owner of the suit property and thus a forfeiture of the Title would gravely impede the Applicant’s case.

21. This Court was urged to take judicial notice of the bad faith on the part of the Complainant which poses a threat to the rights and liberty of the Applicant. To the Applicant, the attempt to use the criminal proceedings to settle a land case is well evident and upon sentencing, the Applicant will be subjected to undue harassment and possibly eviction from the suit property. It was contended that upon conviction, the Police had started harassing the Applicant to hand in the title deed hence the malice and improper motive from the court can clearly be discerned when the court scheduled the sentencing for a Friday afternoon. It was the Applicant’s contention that the institution of the criminal proceedings ought not be a pressure antic designed to exert pressure on a litigant in civil proceedings. This behaviour of forum shopping was condemned in the case of Republic vs. Chief Magistrate’s Court at Mombasa Ex Parte Ganijee & Another [2002] 2 KLR 703.

22. The Applicant’s apprehension was that, as a Director of Megvel Cartons Limited, he was now exposed to a well-orchestrated scheme/conspiracy of the use the criminal justice system and the Judgment in Criminal Case No. 238 of 2019: Republic -versus- Prasul Jayantilal Shahto exert pressure upon him, harassment and unjust decisions to settle a civil appeal presently pending in the Court of Appeal. Calls have been made to the Applicant as a Director of Megvel Cartons Limited and his company Megvel Cartons Limited to divide the suit property L.R. No. 25064 (IR 85088) in half and share the same with land fraudsters.

23. It was contended that the Complainant has now been emboldened by the Judgment of the Trial Court in Criminal Case No. 238 of 2019: Republic -v- Prasul Jayantilal Shahand continues to threaten, harass and intimidate the Applicant herein to settle the civil claim and that the Applicant’s company stands to be illegally dispossessed of its lawful property with the assistance of the Criminal justice system and the Applicant stands to suffer an illegal jail sentence unless the orders sought herein are granted expeditiously.

24. The Applicant submitted that he is a man of ailing health, being diabetic and reliant on daily medication hence an execution of a sentence against him would cause him unmeasurable stress and adversely affect his health in an irreversible fashion. Reliance for this submissions was placed on Reliance Bank Ltd vs. NorlakeInvestments Ltd (2002) E.A. 227.

25. The Court was urged to be guided by the holding of the Supreme Court in The Board of Governors Moi Girls High School Kabarak & Another vs Malcolm Bell and Another (2013) eKLR in which the court stated that the purpose of an order of stay is “to safeguard the character and integrity of the subject matter of appeal, pending resolution of contested issues.” We submit that if the order is not granted, the subject matter of the present suit will be interfered with, rendering the entire Appeal null. He also relied on the case ofButt vs. Rent Restriction Tribunal (1982) eKLR.

26. In this case it was proffered that the orders sought by the Applicant do not prejudice the complainant as they merely seek to preserve the suit property and maintain the status quo as it has been to date. On the other hand, a failure to grant these orders forfeiture of the title, eviction from the suit property and an illegal sentence.

27. It was therefore submitted thatthe Applicant had demonstrated a case sufficient to warrant an order for stay of proceedings and sentencing by this Court.

Respondent’s Case

28. In response to the Application, the Respondent filed the following grounds of opposition;

1) That the instant Application is misconceived, frivolous, vexatious, incompetent and an open abuse of the court process.

2) That the application is a derailment of the due process of the law.

3) That the applicant was properly convicted based on the evidence tendered by the trial prosecutor.

4) That the appeal by the applicant against the conviction is not arguable and has no chances of success.

5) That the applicant has not met the prerequisite requirements for the grant of the orders sought

6) That this application lacks merit and should be dismissed with costs.

29. The Respondent also relied on the replying affidavit sworn by Benard Ngeticha prosecution counsel in the office of the Director of Public Prosecutions. According to him, by prosecuting the Applicant the Respondent and the trial court have not in any way violated the stays orders granted by the Court of Appeal in Civil Appeal No. 64 of 2018, since this order was very specific which only stayed the execution of the judgment and decree dated 26/11/2018 delivered by Hon, Justice Angote in ELC case No.166 of 2011.

30. It was averred that the Applicant vide. Petition Number 20 of 2019 dated 28th of June, 2019 sought orders to declare proceedings in criminal case No...238 of 2019 as illegal and Prohibit the Respondent herein from arresting, harassing or intimidating and prosecuting the Applicant on issues touching on the ownership of LR No, 1504/11 (IR 85400) and L.R No.25064 (I.R85088). The said petition was dismissed for lack of merit, and as a result, the Applicant was prosecuted and lawfully convicted in criminal caseNo.238 of 2019 Republic vs. Prasul Jayantilal Shah.

31. According to the deponent, the charges in Criminal Case No.238 of 2019 Republic vs. Prasul Jayantilal Shah were brought in good faith and hence the process was not meant to harass the applicant nor is it an abuse of court process and neither does it in any way subvert justice nor breach the applicants’ rights, further the Respondent has no intention of using the Criminal Justice system to settle any land dispute.

Interested Party’s Case

32. The application was similarly opposed by the interested party, Joseph Karuoro Claudio,who in his affidavit averred the charges brought against the Applicant in Mavoko Magistrate’s Court Criminal Case No.  238 of 2019 were supported by evidence that was adduced before the trial Court and the Applicant was granted an opportunity to mount his defence against the charges. The Learned Magistrate in her Judgement dated 29th October 2021 convicted the Applicant herein of the offences of Forcible Detainer contrary to Section 91 of the Penal Code and Conspiracy to Defraud and contrary to Section 317 of the Penal Code based on the evidence adduced by the prosecution during trial.

33. According to the deponent, the Applicant has not disclosed to this Court that he had previously filed a Petition before this Court - Machakos Petition Number 20 of 2019 - where he sought Orders similar to those sought in this Application, which Petition was dismissed by a judgement delivered on 29th May 2020. It was therefore averred, based on legal advice, that this Application is unprocedural as the Trial Court has not yet sentenced the Applicant herein and thus the present application seeks Orders that should be sought on Appeal.

34. To the interested party, the erroneous statements contained therein are an attempt to argue the Appeal prior to the sentence being imposed on the Applicant and meant to mislead this Court. he took great exception to the defamatory statements by the Applicant seeking to portray him in a negative light in a feeble attempt to seek the sympathy of this Court while knowing full well that the Applicant himself has been convicted of conspiracy to defraud him.

35. According to the interested party, the Application is devoid of merit as the Applicant has failed to demonstrate any grounds that merit the granting of the orders sought.

36. On behalf of the interested party it was submitted while reiterating the foregoing that the Application dated 4th November 2021 is premature because the present application seeks Orders that should be sought in the Appeal. According to the interested party, the Application and these proceedings are not procedural as the Applicant ought to have been sentenced before filing his Appeal hence the entire Application is a gross abuse of the process of this Court.

37. According to the interested party, it is well established that in the event that a party seeks bail pending Appeal, the said Applicant must demonstrate that he has overwhelming chances of success in the said Appeal and that the same would not be rendered nugatory. In this case, it was submitted that the Applicant has failed in the present Application to demonstrate to this Honourable that he has any chance of success in the intended Appeal or that it would be rendered nugatory.

38. It was noted that in the Affidavit supporting his Application, the Applicant intentionally and conveniently failed to disclose to this Court the evidence that was tendered by the Prosecution that led to his prosecution which would have enabled this Court to discern whether or not the Applicant may have had an Appeal which had overwhelming chances of success or not. By failing to disclose the evidence tendered against him in the Subordinate Court, it was submitted, the Applicant is not being bona fide to this Court and the Application ought to fail.

39. It was further submitted that tellingly, the Applicant has failed in his Application to disclose to this Honourable Court that he had initially sought similar Orders seeking to stay the Proceedings of the Subordinate Court vide Machakos Petition Number 20 of 2019: Prasul Jayantilal Shah & Another –Versus- Inspector General of National Police Service & 3 Others which Petition was dismissed by a judgement delivered by Kemei, J on 29th May 2020.

40. The Interested Party’s case was therefore that the Application dated 4th November 2021 is not only not procedural, but is fatally defective and devoid of merit.

Determinations

41. I have considered the issues raised by the parties herein.

42. Before dealing with the issues raised herein, it is important to determine whether it is procedural to stay criminal proceedings at the stage of sentencing. Section 357(1) of the Criminal Procedure Code provides that:

After the entering of an appeal by a person entitled to appeal, the High Court, or the subordinate court which convicted or sentenced that person, may order that he be released on bail with or without sureties, or, if that person is not released on bail, shall at his request order that the execution of the sentence or order appealed against shall be suspended pending the hearing of his appeal.[Emphasis added].

43. My reading of the above provision is that proceedings may be arrested thereunder where either a conviction has been made or sentence imposed and that arrest may either be directed at the sentence or the order the subject of the appeal. Therefore, where the subject of the appeal is the conviction as is the case herein, then that conviction may be arrested under the said provision. The Supreme Court at paragraph 42 of its decision in Francis Karioko Muruatetu & Another vs. Republic [2017] eKLR held that pursuant to Sections 216 and 329 of the Criminal Procedure Code, Chapter 75, Laws of Kenya, mitigation is a part of the trial process. If mitigation is part of the trial process, then it follows that conviction which takes placed before mitigation must similarly be part of the trial process. It not in doubt that this Court has the power to issue a stay of criminal proceedings at any stage of those proceedings. Therefore, nothing bars the Court, in appropriate cases, from staying criminal proceedings even in instances where the matter is pending sentencing.

44. The law guiding stay of criminal proceedings in our jurisdiction can now be said to be well settled. Of relevance to the matter at hand is the holding in Joram Mwenda Guantai vs. The Chief Magistrate, Nairobi Civil Appeal No. 228 of 2003 [2007] 2 EA 170, where the Court of Appeal held that:

“…the High Court has inherent jurisdiction to grant an order of prohibition to a person charged before a subordinate court and considers himself to be a victim of oppression. If the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious, the Judge has the power to intervene and the High Court has an inherent power and the duty to secure fair treatment for all persons who are brought before the court or to a subordinate court and to prevent an abuse of the process of the court.”

45. However, the decision whether or not to arrest proceedings is discretionary and being discretionary the stage at which the application is made is a crucial factor to be considered. This must be so because as was held in Goddy Mwakio & Another vs. Republic[2011] eKLR wherein the Court of Appeal stated that:

“An order for stay of proceedings, particularly stay of criminal proceedings is made sparingly and only in exceptional circumstances.”

46. The rationale for this, as appreciated by Gikonyo, J opinion in the case of Kenya Wildlife Service –vs- James Mutembei [2019] eKLR where the court (Gikonyo, J) is that: -

“Stay of proceedings is a grave judicial action which seriously interferes with the right of a litigant to conduct his litigation. It impinges on right of access to justice, right to be heard without delay and overall, right to fair trial. Therefore, the test for stay of proceeding is high and stringent. This is a power which, it has been emphasized, ought to be exercised sparingly, and only in exceptional cases… Stay of proceedings is a grave judicial action which seriously interferes with the right of a litigant to conduct his litigation…It will be exercised where the proceedings are shown to be frivolous, vexatious or harassing or to be manifestly groundless or in which there is clearly no cause of action in law or in equity. The applicant for a stay on this ground must show not merely that the plaintiff might not, or probably would not, succeed but that he could not possibly succeed on the basis of the pleading and the facts of the case.”

47. The question that arises is whether in this case there exist exceptional circumstances warranting the arrest of the proceedings at the tail end of the criminal process.

48. The facts of this case, in summary, is that there exists a dispute between Megvel Cartons Limited, a company in which the Applicant is a director, with Diesel Care Limited over ownership of L.R. No. 25064 (I.R. No. 85088) situate in Mavoko. As a result, Diesel Care Limited instituted ELC Case No. 166 of 2011 - Diesel Care Limited -versus- Megvel Cartons Limited & 2 Others whereinit sought to injunct the Applicant’s Company from interfering with its alleged proprietorship of the suit property. By a judgment delivered on the 26th of January 2018, the said Court found in favour of Diesel Care Limited.

49. However, dissatisfied with the said judgement, the Applicant’s company filed Civil Application No. 64 of 2018 (UR 56 of 2018) -Megvel Cartons Limited-versus-Diesel Care Limited &2 Others,and Civil Application No.65 of 2018 (UR 57 of 2018) -Megvel Cartons Limited-versus-Diesel Care Limited & 2 Others for stay of execution of the said decree and Judgment pending the hearing and determination of Civil Appeal No. 70 of 2018:Megvel Cartons Limited-versus-Diesel Care Limited & 2 Othersand Civil Appeal No. 71 of 2018:Megvel Cartons Limited-versus-Diesel Care Limited & 2 Others. The Court of Appeal in its ruling dated 20th April, 2018 granted the Stay of Execution in Civil Application No 64 of 2018 Megvel Cartons Limited -versus- Diesel Care Limited &  2 Others, staying the findings and determination of the Environment and Land Court and maintaining the status quo. According to the Applicant by that decision his Company was allowed to continue to occupy the suit property pending the determination of the main Appeal.

50. According to the Applicant, therefore, the dispute regarding ownership of L.R. No. 25064 (I.R. No. 85088) still remains unresolved. However, applicant herein was arrested on 1st April 2019, after the said stay had been issued, and charged in Criminal case No. 238 of 2019: Republic vs- Prasul Jayantilal Shahwith the offences of forcible detainer contrary to section 91 of the Penal Code, forgery contrary to Section 350(1) of the Penal Code and conspiracy to defraud contrary to section 317 of the Penal Code which charges were instituted as a result of a complaint by the interested party herein, Joseph Karuoro Claudio, the director of Diesel Care Limited.

51. Aggrieved by the charges brought against him, the Applicant filed a Constitutional Petition in Petition No. 20 of 2019: Prasul Jayantilal Shah & Megvel Cartons Limited -versus- Inspector General of the National Police Service & 3 Others seeking, inter alia, that the Court finds that the Respondents had acted in violation of the Applicant’s rights to human dignity, freedom and security of the person, fair administrative action, fair hearing as well as declare that the proceedings and charges in Criminal Case No. 238 of 2019: Republic vs- Prasul Jayantilal Shah are illegal and in contravention of the orders of the Court of Appeal.

52. That petition was however dismissed vide a judgment rendered on the 28th of October 2020 in which the Judge stated that the criminal matter should be allowed to proceed and each party have its day in court. Dissatisfied by this decision, the Applicant herein filed an Appeal being Civil Appeal No. E035 of 2021: Prasul Jayantilal Shah & Megvel Cartons Limited -versus- Inspector General of the National Police Service & 3 Others which remains undetermined. In the meantime, judgment was rendered in Criminal Case No. 238 of 2019: Republic vs- Prasul Jayantilal Shahon the 29th of October 2021 in which the trial magistrate convicted the Applicant of the offences of Forcible Detainer contrary to section 91 of the Penal Code and Conspiracy to Defraud contrary to section 317 of the Penal Code. It is that decision that has provoked this appeal and the present application.

53. Aggrieved by the decision of the Magistrates Court, the Applicant herein filed an Appeal against conviction before this Court in Machakos in Appeal No. E070 of 2021: Prasul Jayantilal Shah -versus- Republic and also instituted the present application.

54. I am alive to the fact that there are proceedings pending determination either before the Court of Appeal or before this Court and hence the less said the better at this stage. What is clear, however, is that the facts disclosed by this matter are rather unusual. It is alleged that the subject matter of the case pending before the Court of Appeal is also the subject matter of the criminal proceedings and that in the event that the Court of Appeal finds in favour of the Applicant, that finding may well render the decision arrived at in the Criminal Case baseless. The Court of Appeal has in the meantime stayed the decision barring the Applicant’s company from the suit land, effectively permitting the Applicant’s company to stay in occupation thereof. On the other hand, the Applicant, a director of the same company faces a possibility of being imprisoned.

55.  It is however contended that he Applicant’s Company having failed to stop the said Criminal proceedings vide Petition No. 20 of 2019: Prasul Jayantilal Shah & Megvel Cartons Limited -versus- Inspector General of the National Police Service & 3 Others it amounts to an abuse of the process of this Court to grant the orders sought herein.

56. Since the main appeal is still pending, I do not wish to make definite findings regarding the link between the said petition against whose decision an appeal is pending before the Court of Appeal and the proceedings against which an appeal has been preferred before this Court, particularly in an application for stay of sentencing and proceedings pending this appeal. What is however obvious is that the Applicant risks being imprisoned while this appeal is pending. I must however state that it is not in every case that an applicant faces a jail term that the Court will grant stay of sentencing or proceedings. To be able to obtain stay of criminal proceedings, particularly the sentencing part thereof, the applicant must show that there exist exceptional and compelling reasons In this case, the subject matter’s determination is pending before the Court of Appeal and the criminal proceedings revolving around the same subject matter is being challenged in this appeal. The circumstances of this case are clearly exceptional and compelling.

57. In the premises, I find that it is only just to temporarily hold further proceedings in the criminal case in abeyance so as to avoid a situation where the Applicant might lose his liberty when the subject matter’s status is yet to be determined and this Court is yet to determine the proprietary of the criminal proceedings.

58. Accordingly, I hereby direct that pending the hearing and determination of Criminal Appeal No. E070 of 2021: Prasul Jayantilal Shah -vs- Republic, there will be a stay the Sentencing in Mavoko Magistrate's Court Criminal Case No. 238 of 2019: Republic -v- Prasul Jayantilal Shah.

59. I however direct the Applicant to prepare, file and serve its record of appeal within 45 days.

60. It is so ordered.

RULING READ, SIGNED AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 4TH DAY OF MARCH, 2022.

G V ODUNGA

JUDGE

Delivered the presence of:

Mr James Ochieng Oduol for the Applicant

Mr Ngetich for the Respondent

Mr Kibera for the Interested Party

CA Susan