Republic v Makali & 3 others [2022] KEHC 18092 (KLR)

Republic v Makali & 3 others (Miscellaneous Criminal Application E035 of 2022) [2022] KEHC 18092 (KLR) (16 December 2022) (Ruling)

Neutral citation: [2022] KEHC 18092 (KLR)

Republic of Kenya

In the High Court at Bungoma

Miscellaneous Criminal Application E035 of 2022

REA Ougo, J

December 16, 2022

Between

Republic

Applicant

and

Levi Makali

1st Respondent

Luke Opwora

2nd Respondent

Truphena Atemo Mutoka

3rd Respondent

Josephine Wamanya Akhula

4th Respondent

Ruling

1The Applicant, the Republic, by a Notice of Motion dated 12. 9.2022 brought under Section 349 of the CPC Cap 75 Laws of Kenya seeks the following orders:1. That the applicant be allowed to appeal against the judgment in Bungoma Chief Magistrates Criminal Case No 605 of 2016 out of time.2. That leave to appeal out of time be granted3. That the costs of the application be in the cause.

2The application is supported by the affidavits of Mr Isaack Opicho the complainant in Bungoma CMCC No 605 of 2016. As per this affidavit judgment in the said case was delivered on the 3. 12. 2021 by Hon J King’ori. Yet being dissatisfied with the judgment he implored the prosecution counsel in the trial to consider filing an appeal and he acted promptly in requesting the office of the Director of Public Prosecution to lodge an appeal on his behalf the same day of the judgment. That the said office informed him that the proceedings are not ready to enable them file the appeal. That on the 8. 9.2022 he was notified by the office of the DPP that the proceedings were ready and that his request to file an appeal had been considered and approved. That the delay in lodging the appeal was not occasioned by himself and he therefore seeks to file an appeal out of time since he wishes to exercise and exhaust his rights of appeal. That he has been advised by the office of the DPP that his appeal has high chances of success.

3The application was opposed by the Respondents. The Respondents have given a detailed background of the criminal case before the Chief Magistrate’s court. On the application the Respondent argue that the application has been brought with inordinate delay of 11 months after delivery of the judgment and that there is no evidence a certificate of delay to show that the subordinate court delayed and contributed to supplying the applicant with the proceeding for purposes of appeal. That the application was brought with inordinate delay which has not been satisfactorily explained. That there is no evidence that the delay was contributed for lack of proceedings and that the application is an afterthought.

4I have considered the application before me. The orders being sought are discretionary order. I note that the application is not supported by the affidavit of the state counsel from the ODPP but the complainant of the case which was before the lower court. It is an anomaly that could cause this court to deny the applicant the orders being sought. In my view it is not. Article 159 (2) (d) states that exercising judicial authority, the court and tribunals shall be guided by the principle noted and at (2) (d) the principle states that justice shall be administered without more regard to procedural technicalities. The complainant was the state in the lower court and the deponent of the affidavit is the person who was aggrieved. In my view the fact that he swore the affidavit doesn’t render the application defective to warrant a dismissal. I will therefore proceed to determine the application.

5The applicant has explained the reason behind the delay. It was his belief that the office of the ODPP was following upon the proceedings. Though he has the letter from the registry explaining the delay the applicant has attached 2 letters dated 7. 12. 2001 and 27. 1.2002 seeking certified copies of the proceedings to enable them file an appeal in time. this is evidence that the applicant had an intention to appeal and right from December 2021 sought to have the proceedings. Being a party in the lower court matter the state have a right to appeal. In my view the delay has been satisfactorily explained. A petition has been attached. It must have been an error of on the part of the applicant to have the title Petition. I have read the ground listed in the petition of appeal and in my view it raises triable issues on both fact and the law.

6All in all I find merit in the application and I will exercise my discretion in favour of the applicant and grant the following orders.1. The applicant is granted leave to appeal against the judgment in Bungoma CMCC No 605 of 2016 out of time.2. The applicant shall file the appeal within 45 days from the date of this Ruling3. The costs of the application shall be in the cause.

DATED, SIGNED, AND DELIVERED AT BUNGOMA IN OPEN COURT THIS 16TH DAY OF DECEMBER, 2022R.E. OUGOJUDGEIn the presence of:Ms Omondi – State CounselMs Wilkister – Court Assistant.Applicant:Respondent: All absent.