REPUBLIC OF KENYA
IN HIGH COURT OF KENYA AT BUNGOMA
CRIMINAL APPEAL NO. E044 OF 2024
JOSEPH TUMET KISA…………………………...……….APPELLANT
VERSUS
118370-PC PATRICK OTIENO OMONDI
C/O KAPSOKWONY STATION…………..…………….RESPONDENT
RULING
1. The respondent has raised a preliminary objection to the appellant’s / appeal filed by the appellant on the grounds that the appellant has no capacity to file the appeal. Miss Matere, for the respondent, argued that by virtue of Article 157 of the Constitution and section 348A of the Criminal Procedure Code, the appeal as presented was bad in law and should not be sustained further.
2. The appellant filed grounds of opposition as follows ;
i. The Appellant had the capacity in accordance with the provisions of Article 159, 258 and 259 of the Constitution of Kenya 2010 which the Appellant raised a complaint before a Magistrate vide the Kimilili Principal Magistrate’s Court MISC. Criminal Application NO. E115 of 2023 in accordance with the Provisions under the Criminal Procedure Code Cap 75 as per the Provisions of Section 89 of the Criminal Procedure Code.
ii. The appellant’s case is not in bad faith . The Appellant’s case is properly before the court as it holds the Respondents responsible for the offence which he falsely sworn an affidavit and faked the arrest of the Appellant Contrary to Section 114 as read together with Section 36 of the Penal Code and Section 108 (1) (a) of the Penal Code. The Appellant’s case is in accordance with the provisions of Section 88 subsection 3 of the Kenya Police Service Act No. 11A of 2011, which provides that a police officer who commits a criminal offence against the law shall be liable to criminal proceedings in a court of law.
iii. The Respondent is not properly represented due to the following reasons; There is no notice of appointment on record, the DPP as mandated under Article 157 of the Constitution of Kenya 2010 is not in proper position to defend the Respondent as that is the mandate of the Attorney General under Article 156 of the Constitution of Kenya 2010.
3. The appellant filed a written submission. He submits that he opposed the ODDP’s oral preliminary objection. He argues that, in accordance with Articles 159, 258, and 259 of the Constitution of Kenya 2010, he filed a complaint before the Kimilili Principal Magistrate’s Court, Misc. Criminal Application No. E115 of 2023, and according to the Criminal Procedure Code, under section 89 of the same Code. He further submitted that he is properly before the court. He further submits that the respondent is responsible for the offence, which involved the respondent falsely swearing an affidavit and fabricating the arrest of the appellant, contrary to Section 114 as read with Section 36 of the Penal Code and Section 108(1) (a) of the Penal Code. Under section 88(3) of the Kenya Police Act No. 11a of 2011, a police officer who commits a criminal offence shall be liable to criminal proceedings in a court of law. The appellant further contends that the respondent is not properly represented because there is no notice of appointment before the court, and that the DPP, as mandated under Article 159 of the Constitution 2010, is not in a proper position to defend the respondent, as that is the mandate of the Attorney General under Article 156 of the Constitution 2010. The respondent's order has sought representation, or, in the alternative, the respondent should have engaged an advocate to act on his behalf. The appellant asserts that the preliminary objection raised has no legal basis, is therefore bad in law, and was brought in bad faith, constituting an abuse of the due process of law. It ought to be dismissed with costs to the appellant.
4. The State/Respondent, in response, argued that the appellant has no legal capacity to institute the proceedings. The grounds are misleading, and the appeal's argument that they cannot represent PC Otieno is likewise misguided. They are within their constitutional mandate to represent the police officers, including the police officer, and that if the officer were to appoint an advocate, they would act together with the office of the OPPD to represent, prosecute the appeal, and defend the matter. That where urgency arises, government agencies are sued or have sued, the respondents are compelled to appear for him.
DETERMINATION
5. I have considered the rival submissions and the law. The respondent has raised a preliminary objection that the appellant lacks the capacity to file the appeal and that the appeal was brought in bad faith. In other words, the respondent has challenged the appellant’s locus standi to file the current appeal.
6. A preliminary objection in law is a formal challenge raised at the start of a case, arguing there's a fundamental legal or procedural reason why the court shouldn't hear the case or proceed further, often focusing on jurisdiction, standing, or flaws in pleadings, aiming to resolve these issues before delving into the main facts to dismiss or halt the proceedings potentially. It's a "knock-out" blow, based on pure points of law, that, if successful, makes further hearings unnecessary.
7. The Supreme Court in Hassan Ali Joho & Another v Suleiman Said Shahbal & 2 Others cited the leading decision on Preliminary Objections, Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd. (1969) EA 696, where the Court held as follows: “ a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court oral plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration… a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion
8. The appellant has cited and relies on section 348A.The provisions of section 348A, as cited above, are clear. The section reads as follows:
348A .Right of appeal against acquittal, order of refusal or order of dismissal (1) When an accused person has been acquitted on a trial held by a subordinate court or High Court, or where an order refusing to admit a complaint or formal charge, or an order dismissing a charge, has been made by a subordinate court or High Court, the Director of Public Prosecutions may appeal to the High Court or the Court of Appeal as the case may be, from the acquittal or order on a matter of fact and law. (2) If the appeal under subsection (1) is successful, the High Court or Court of Appeal as the case may be, may substitute the acquittal with a conviction and may sentence the accused person appropriately.
9. The above section concerns acquittals and/or orders of refusal or dismissal. It provides that the Director of Public Prosecution may appeal to the High Court or the Court of Appeal, as the case may be, from an acquittal or order on a matter of fact and law. In a ruling dated the 14th day of March 2024, the appellant’s miscellaneous application was dismissed, and the appellant was properly advised that the appellant should have sued the Inspector General of Police and its legal adviser, the Attorney General, and hence the application was defective for misjoinder of parties. The respondent’s argument that the appellant has no legal capacity to institute the proceedings still stands and is valid. The ODPP’s office can represent a police officer or even prosecute a police officer charged in a court of law.
10. The appellant has also cited Article 258 of the Constitution 2010. The said Articles state as follows;
258. (1) Every person has the right to institute court proceedings, claiming that this Constitution has been contravened, or is threatened with contravention . (2) In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by— (a) a person acting on behalf of another person who cannot act in their own name; (b) a person acting as a member of, or in the interest of, a group or class of persons; (c) a person acting in the public interest; or (d) an association acting in the interest of one or more of its members
11. Article 258 is clear that a litigant moving the court must institute a suit alleging that the Constitution has been contravened. The appellant is challenging the ruling of the subordinate court in his appeal. No constitutional issue has been raised in his petition for appeal. What is before this court is not a Constitutional Petition. I find merit in the preliminary objection; the appeal is struck off, and the appeal file is closed.
Dated, signed and delivered at Bungoma, this 12th day of November 2025.
R.E.OUGO
JUDGE
In the presence of:
Joseph Tumweti Kisa/ Appellant
Miss Matere For the Respondent
Wilkister - C/A
hccra no. e044 of 2024-ruling 2
IN HIGH COURT OF KENYA AT BUNGOMA
CRIMINAL APPEAL NO. E044 OF 2024
JOSEPH TUMET KISA…………………………...……….APPELLANT
VERSUS
118370-PC PATRICK OTIENO OMONDI
C/O KAPSOKWONY STATION…………..…………….RESPONDENT
RULING
1. The respondent has raised a preliminary objection to the appellant’s / appeal filed by the appellant on the grounds that the appellant has no capacity to file the appeal. Miss Matere, for the respondent, argued that by virtue of Article 157 of the Constitution and section 348A of the Criminal Procedure Code, the appeal as presented was bad in law and should not be sustained further.
2. The appellant filed grounds of opposition as follows ;
i. The Appellant had the capacity in accordance with the provisions of Article 159, 258 and 259 of the Constitution of Kenya 2010 which the Appellant raised a complaint before a Magistrate vide the Kimilili Principal Magistrate’s Court MISC. Criminal Application NO. E115 of 2023 in accordance with the Provisions under the Criminal Procedure Code Cap 75 as per the Provisions of Section 89 of the Criminal Procedure Code.
ii. The appellant’s case is not in bad faith . The Appellant’s case is properly before the court as it holds the Respondents responsible for the offence which he falsely sworn an affidavit and faked the arrest of the Appellant Contrary to Section 114 as read together with Section 36 of the Penal Code and Section 108 (1) (a) of the Penal Code. The Appellant’s case is in accordance with the provisions of Section 88 subsection 3 of the Kenya Police Service Act No. 11A of 2011, which provides that a police officer who commits a criminal offence against the law shall be liable to criminal proceedings in a court of law.
iii. The Respondent is not properly represented due to the following reasons; There is no notice of appointment on record, the DPP as mandated under Article 157 of the Constitution of Kenya 2010 is not in proper position to defend the Respondent as that is the mandate of the Attorney General under Article 156 of the Constitution of Kenya 2010.
3. The appellant filed a written submission. He submits that he opposed the ODDP’s oral preliminary objection. He argues that, in accordance with Articles 159, 258, and 259 of the Constitution of Kenya 2010, he filed a complaint before the Kimilili Principal Magistrate’s Court, Misc. Criminal Application No. E115 of 2023, and according to the Criminal Procedure Code, under section 89 of the same Code. He further submitted that he is properly before the court. He further submits that the respondent is responsible for the offence, which involved the respondent falsely swearing an affidavit and fabricating the arrest of the appellant, contrary to Section 114 as read with Section 36 of the Penal Code and Section 108(1) (a) of the Penal Code. Under section 88(3) of the Kenya Police Act No. 11a of 2011, a police officer who commits a criminal offence shall be liable to criminal proceedings in a court of law. The appellant further contends that the respondent is not properly represented because there is no notice of appointment before the court, and that the DPP, as mandated under Article 159 of the Constitution 2010, is not in a proper position to defend the respondent, as that is the mandate of the Attorney General under Article 156 of the Constitution 2010. The respondent's order has sought representation, or, in the alternative, the respondent should have engaged an advocate to act on his behalf. The appellant asserts that the preliminary objection raised has no legal basis, is therefore bad in law, and was brought in bad faith, constituting an abuse of the due process of law. It ought to be dismissed with costs to the appellant.
4. The State/Respondent, in response, argued that the appellant has no legal capacity to institute the proceedings. The grounds are misleading, and the appeal's argument that they cannot represent PC Otieno is likewise misguided. They are within their constitutional mandate to represent the police officers, including the police officer, and that if the officer were to appoint an advocate, they would act together with the office of the OPPD to represent, prosecute the appeal, and defend the matter. That where urgency arises, government agencies are sued or have sued, the respondents are compelled to appear for him.
DETERMINATION
5. I have considered the rival submissions and the law. The respondent has raised a preliminary objection that the appellant lacks the capacity to file the appeal and that the appeal was brought in bad faith. In other words, the respondent has challenged the appellant’s locus standi to file the current appeal.
6. A preliminary objection in law is a formal challenge raised at the start of a case, arguing there's a fundamental legal or procedural reason why the court shouldn't hear the case or proceed further, often focusing on jurisdiction, standing, or flaws in pleadings, aiming to resolve these issues before delving into the main facts to dismiss or halt the proceedings potentially. It's a "knock-out" blow, based on pure points of law, that, if successful, makes further hearings unnecessary.
7. The Supreme Court in Hassan Ali Joho & Another v Suleiman Said Shahbal & 2 Others cited the leading decision on Preliminary Objections, Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd. (1969) EA 696, where the Court held as follows: “ a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court oral plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration… a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion
8. The appellant has cited and relies on section 348A.The provisions of section 348A, as cited above, are clear. The section reads as follows:
348A .Right of appeal against acquittal, order of refusal or order of dismissal (1) When an accused person has been acquitted on a trial held by a subordinate court or High Court, or where an order refusing to admit a complaint or formal charge, or an order dismissing a charge, has been made by a subordinate court or High Court, the Director of Public Prosecutions may appeal to the High Court or the Court of Appeal as the case may be, from the acquittal or order on a matter of fact and law. (2) If the appeal under subsection (1) is successful, the High Court or Court of Appeal as the case may be, may substitute the acquittal with a conviction and may sentence the accused person appropriately.
9. The above section concerns acquittals and/or orders of refusal or dismissal. It provides that the Director of Public Prosecution may appeal to the High Court or the Court of Appeal, as the case may be, from an acquittal or order on a matter of fact and law. In a ruling dated the 14th day of March 2024, the appellant’s miscellaneous application was dismissed, and the appellant was properly advised that the appellant should have sued the Inspector General of Police and its legal adviser, the Attorney General, and hence the application was defective for misjoinder of parties. The respondent’s argument that the appellant has no legal capacity to institute the proceedings still stands and is valid. The ODPP’s office can represent a police officer or even prosecute a police officer charged in a court of law.
10. The appellant has also cited Article 258 of the Constitution 2010. The said Articles state as follows;
258. (1) Every person has the right to institute court proceedings, claiming that this Constitution has been contravened, or is threatened with contravention . (2) In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by— (a) a person acting on behalf of another person who cannot act in their own name; (b) a person acting as a member of, or in the interest of, a group or class of persons; (c) a person acting in the public interest; or (d) an association acting in the interest of one or more of its members
11. Article 258 is clear that a litigant moving the court must institute a suit alleging that the Constitution has been contravened. The appellant is challenging the ruling of the subordinate court in his appeal. No constitutional issue has been raised in his petition for appeal. What is before this court is not a Constitutional Petition. I find merit in the preliminary objection; the appeal is struck off, and the appeal file is closed.
Dated, signed and delivered at Bungoma, this 12th day of November 2025.
R.E.OUGO
JUDGE
In the presence of:
Joseph Tumweti Kisa/ Appellant
Miss Matere For the Respondent
Wilkister - C/A
hccra no. e044 of 2024-ruling 2