1. The applicant has come to this court by way of a Notice of Motion dated 22 nd March 2024 seeking the stay of proceedings in Criminal Case MCCR/E233/ 2022 Rep Vs. Kiran Ramji Mulji. The applicant wishes to have the proceedings stayed in order to allow this court to hear appeal numbers E013 of 2024 consolidated with appeal number E140 of 2024.
2. The applicant was charged with the following counts in the lower court:
COUNT I
OBTAINING SERVICES ON CREDIT BY FALSE PRETENCE CONTRARY TO SECTION 316(a) OF THE PENAL CODE.
KIRAN RAMJI MULJI: On diverse dates between 1st October 2015 and 23rd day of March 2020 at Westlands Sub-county within Nairobi county, in incurring a debt to LEO INVESTMENTS LIMITED, obtained credit to the amount of Ksh 2,977,271/=(Two million nine hundred and seventy seven thousand two hundred and seventy one shillings only)from the said LEO INVESTMENTS LIMITED by falsely pretending that you are in a position to pay rent services for shop no.12, occupied at main Diamond Plaza -1st floor, L.RO. 209/34/4, Masari road Nairobi.
COUNT II
ISSUING A BAD CHEQUE CONTRARY TO SECTION 316A (1) (a) AS READ WITH SECTION 316A (4) OF THE PENAL CODE.
PARTICULARS: KIRAN RAMJI MULJI: On the 10th day of October 2015 at Westlands sub-county, within Nairobi county, issued cheque No.003274 for ksh 140,117/= to LEO INVESTMENTS LIMITED
on account No 3000027969 held at PRIME BANK PARKLANDS BRANCH knowing that the said account No.3000027969 had insufficient funds.
COUNT III
ISSUING A BAD CHEQUE CONTRARY TO SECTION 316A (1) (a) AS READ WITH SECTION 316A (4) OF THE PENAL CODE.
PARTICULARS: KIRAN RAMJI MULJI: On the 28th day of November 2015 at Westlands sub-county, within Nairobi county, issued cheque No.003298 for ksh 140,117/= to LEO INVESTMENTS LIMITED
on account No.3000027969 held at PRIME BANK PARKLANDS BRANCH knowing that the said account No.3000027969 had insufficient funds.
COUNT IV
ISSUING A BAD CHEQUE CONTRARY TO SECTION 316A (1) (a) AS READ WITH SECTION 316A (4) OF THE PENAL CODE.
PARTICULARS: KIRAN RAMJI MULJI: On the 20th day of March 2016 at Westlands sub-county, within Nairobi county, issued cheque No.003359 for ksh 195,351/= to LEO INVESTMENTS LIMITED on account No.3000027969 held at PRIME BANK PARKLANDS BRANCH knowing that the said account No 3000027969 had insufficient funds.
COUNT V
ISSUING A BAD CHEQUE CONTRARY TO SECTION 316A (1) (a) AS READ WITH SECTION 316A (4) OF THE PENAL CODE.
PARTICULARS: KIRAN RAMJI MULJI: On the 12th day of May 2016 at Westlands sub-county, within Nairobi
county, issued cheque No.003362 for ksh 136,000/= to LEO INVESTMENTS LIMITED on account No.3000027969 held at PRIME BANK PARKLANDS BRANCH knowing that the said account No.3000027969 had insufficient funds.
COUNT VI
ISSUING A BAD CHEQUE CONTRARY TO SECTION 316A (1) (a) AS READ WITH SECTION 316A (4) OF THE PENAL CODE.
PARTICULARS: KIRAN RAMJI MULJI: On the 29th day of May 2016 at Westlands sub-county, within Nairobi county, issued cheque No.003395 for ksh 153,600/= to LEO INVESTMENTS LIMITED on account No.3000027969 held at PRIME BANK PARKLANDS BRANCH knowing that the said account No.3000027969 had insufficient funds
COUNT VII
ISSUING A BAD CHEQUE CONTRARY TO SECTION 316A (1) (a) AS READ WITH SECTION 316A (4) OF THE PENAL CODE.
PARTICULARS: KIRAN RAMJI MULJI: On the 12th day of June 2016 at Westlands sub-county, within Nairobi county, issued cheque No.003363 for ksh 136,000/= to LEO INVESTMENTS LIMITED on
account No.3000027969 held at PRIME BANK PARKLANDS BRANCH knowing that the said account No.3000027969 had insufficient funds
COUNT VIII
ISSUING A BAD CHEQUE CONTRARY TO SECTION 316A (1) (a) AS READ WITH SECTION 316A (4) OF THE PENAL CODE.
PARTICULARS: KIRAN RAMJI MULJI: On the 11th day of November 2016 at Westlands sub-county, within Nairobi county, issued cheque No.003453 for ksh 153,600/= to LEO INVESTMENTS LIMITED on account No.3000027969 held at PRIME BANK PARKLANDS BRANCH knowing that the Said account No.3000027969 had insufficient funds.
COUNT IX
ISSUING A BAD CHEQUE CONTRARY TO SECTION 316A (1) (a) AS READ WITH SECTION 316A (4) OF THE PENAL CODE.
PARTICULARS: KIRAN RAMJI MULJI: On the 21st day of February 2017 at Westlands sub-county, within Nairobi county, issued cheque No.003489 for ksh 775,208/= to LEO INVESTMENTS LIMITED on account No.3000027969 held at PRIME BANK PARKLANDS BRANCH knowing that the said account No.3000027969 had insufficient funds.
COUNT X
ISSUING A BAD CHEQUE CONTRARY TO SECTION 316A (1) (a) AS READ WITH SECTION 316A (4) OF THE PENAL CODE.
PARTICULARS: KIRAN RAMJI MULJI: On the 28th day of February 2017 at Westlands sub-county, within Nairobi county, issued cheque No.003488 for ksh 775,208/= to LEO INVESTMENTS LIMITED on account No.3000027969 held at PRIME BANK PARKLANDS BRANCH knowing that the said account No.3000027969 had insufficient funds.
COUNT XI
ISSUING A BAD CHEQUE CONTRARY TO SECTION 316A (1) (a) AS READ WITH SECTION 316A (4) OF THE PENAL CODE.
PARTICULARS: KIRAN RAMJI MULJI: On the 10th day of February 2017 at Westlands sub-county, within Nairobi county, issued cheque No.003511 for ksh 50,000/= to LEO INVESTMENTS LIMITED on account No.3000027969 held at PRIME BANK PARKLANDS BRANCH knowing that the said account No.3000027969 had insufficient funds
COUNT XII
ISSUING A BAD CHEQUE CONTRARY TO SECTION 316A (1) (a) AS READ WITH SECTION 316A (4) OF THE PENAL CODE.
PARTICULARS: KIRAN RAMJI MULJI: On the 10th day of February 2017, at Westlands sub-county, within Nairobi county, issued cheque No.003513 for ksh 58,000/= to LEO INVESTMENTS LIMITED on account No.3000027969 held at PRIME BANK PARKLANDS BRANCH knowing that the said account No.3000027969 had insufficient funds.
COUNT XIII
ISSUING A BAD CHEQUE CONTRARY TO SECTION 316A (1) (a) AS READ WITH SECTION 316A (4) OF THE PENAL CODE.
PARTICULARS: KIRAN RAMJI MULJI: On the 30th day of September 2019 at Westlands sub-county, within Nairobi county, issued cheque No.003568 for Ksh 69,000/= to LEO INVESTMENTS LIMITED on account No.3000027969 held at PRIME BANK PARKLANDS BRANCH knowing that the said account No.3000027969 had insufficient funds.
COUNT XIV
ISSUING A BAD CHEQUE CONTRARY TO SECTION 316A (1) (a) AS READ WITH SECTION 316A (4) OF THE PENAL CODE.
PARTICULARS: KIRAN RAMJI MULJI: On the 15th day of December 2019 at Westlands sub-county, within Nairobi county, issued cheque No.004001 for Ksh 4,266/= to LEO INVESTMENTS LIMITED on account No.3000027969 held at PRIME BANK PARKLANDS BRANCH knowing that the said account No.3000027969 had insufficient funds.
COUNT XV
ISSUING A BAD CHEQUE CONTRARY TO SECTION 316A (1) (a) AS READ WITH SECTION 316A (4) OF THE PENAL CODE.
PARTICULARS: KIRAN RAMJI MULJI: On the 10th day of March 2020 at Westlands sub-county, within Nairobi county, issued cheque No.004011 for Ksh 87,000/= to LEO INVESTMENTS LIMITED on account No.3000027969 held at PRIME BANK PARKLANDS BRANCH knowing that the said account No.3000027969 had insufficient funds.
COUNT XVI
ISSUING A BAD CHEQUE CONTRARY TO SECTION 316A (1) (a) AS READ WITH SECTION 316A (4) OF THE PENAL CODE.
PARTICULARS: KIRAN RAMJI MULJI: On the 23rd day of March 2020 at Westlands sub-county, within Nairobi county, issued cheque No.004016 for Ksh 99,700/= to LEO INVESTMENTS LIMITED on account No.3000027969 held at PRIME BANK PARKLANDS BRANCH knowing that the said account No.3000027969 had insufficient funds
COUNT XVII
ISSUING A BAD CHEQUE CONTRARY TO SECTION 316A (1) (a) AS READ WITH SECTION 316A (4) OF THE PENAL CODE.
PARTICULARS: KIRAN RAMJI MULJI: On the 23rd day of March 2020 at Westlands sub-county, within Nairobi county, issued cheque No.004017 for Ksh 4,104/= to LEO INVESTMENTS LIMITED on account No.3000027969 held at PRIME BANK PARKLANDS BRANCH knowing that the said account No.3000027969 had insufficient funds.
3. The two appeals basically touch on admissibility of evidence and the applicant’s argument is that if this court does not grant stay there is possibility that judgment in the lower court will be delivered by the magistrate thus rendering the appeals redundant.
4. The respondents are opposed to the application and maintain that if this court allows the application, the lower court would be unfairly prevented from exercising its jurisdiction over the matter yet in the respondent’s view the appeals are a non-starter purely on a point of law.
5. The respondent argue that the appeals are meant to scuttle the delivery of judgment yet all the issues raised by the applicant are matters that can safely await the final decision of the trial court and that if the applicant is dissatisfied with the judgment nothing would prevent him from raising all those issues on appeal.
6. This court has considered the arguments made by each of the parties in favor of their respective positions on the matter. The court is alive to the provisions of Section 347 of the Criminal Procedure Code which provide that :-
347. Appeal to High Court(1) Save as is in this Part provided—(a) a person convicted on a trial held by a subordinate court of the first or second class may appeal to the High Court; and(b)Repealed by Act No. 5 of 2003, s. 93.(2) An appeal to the High Court may be on a matter of fact as well as on a matter of law.
7. The section grants an unlimited right to any accused person convicted by a subordinate court to appeal against the decision of that court to the High court. Thus, in the ordinary course of proceedings interlocutory appeals are the exception and not the rule.
8. A reading of Section 347 creates serious doubts in the mind of this court as to the likelihood of the success of the appeals by the applicant considering the stage at which the appeals have been brought. The lower court is at the tail end of proceedings thus staying the matter at this stage would simply mean that the trial court will have to down tools and await the decision of the High Court on the two appeals.
9. The High Court has to be careful whenever called upon to stay proceedings before the lower courts more so when the trial in the trial court is at an advanced stage. The court should only intervene in the clearest of cases where an injustice or the likelihood of it being suffered by the accused, victim or the prosecution is adequately demonstrated. For instance, a threat of breach of the fair trial rights of the accused should be one such ground and evidence must be laid before the judge before proceeds to halt the proceedings.
10. This is important because do entertain stay applications that are premised on mere apprehensions by accused persons or any party to the proceedings could render the trial courts unable to discharge their Constitutional and statutory duty to hear criminal cases expeditiously in line with Article 159 of the Constitution.
11. This court has considered the position taken by the Court of appeal and the Supreme court on the viability of interlocutory appeals.
12. In Thomas Patrick Gilbert Cholmondeley v Republic [2008] KECA 319 (KLR) the Court of Appeal held;-
“We must now deal with the reasons why we ruled that the appeal before us was competent and that we had jurisdiction to deal with it. In ordinary criminal trials, there is generally no interlocutory appeals allowed for section 379 (1) of the Criminal Procedure Code allows only appeals by persons who have been convicted of some offence. The Appellant has not been convicted of any offence. As far as we understand the position the basis of an appeal cannot be that an order made in the course of a trial is highly prejudicial to an accused person; Muga Apondi, J ruled that the appellant had a case to answer and even if that order would be seen as being prejudicial that alone would not have entitled the appellant to appeal. But the basis of this appeal, as far as we are concerned is that the learned Judge made an order in the course of the trial which violated the appellant’s fundamental rights guaranteed by section 77 of the Constitution. Whether that order was made pursuant to section 60 (1) of the Constitution, and we have found it could not have been made under that section, or whether it was made pursuant to the exercise of inherent jurisdiction as the learned Judge said he was doing, the effect of the order was to violate the appellant’s rights under section 77. The appellant had two choices. He could have chosen to wait until after the determination of the charge against him and if he was convicted, he would be entitled to appeal on all aspects of the trial. Secondly, he had the option to appeal under section 84 (1) of the Constitution”
13. In Waswa v Republic (Petition 23 of 2019) [2020] KESC 23 (KLR) (4 September 2020) (Judgment) the Supreme Court held;-
“The right of appeal against interlocutory decisions was available to a party in a criminal trial but should be deferred, and await the final determination by the trial court. A person seeking to appeal against an interlocutory decision had to file the intended notice of appeal within 14 days of the trial court’s judgment. However, exceptional circumstances could exist where an appeal on an interlocutory decision could be sparingly allowed, these included:-a). where the decision concerned the admissibility of evidence, which, if ruled inadmissible, would eliminate or substantially weaken the prosecution case;b). when the decision was of sufficient importance to the trial to justify it being determined on an interlocutory appeal; and
c). where the decision entailed the recusal of the trial court to hear the cause.”
14. Taking into account the two decisions of the superior courts, this court is minded to hold that the success of the appeals by the applicant is a matter that heavily depends on a demonstration of the violation of rights of the applicant or the effect of the admission of evidence on the trial of the applicant more on the strength of the prosecution’s case if the impugned documents were to be excluded.
15. The Supreme Court placed a burden upon the appellant in an interlocutory appeal to demonstrate that “ the decision concerned the admissibility of evidence, which, if ruled inadmissible, would eliminate or substantially weaken the prosecution case;” The appellant in an interlocutory appeal has to satisfy that threshold if he seeks exclusion of evidence.
16. In order to succeed in a stay application pending the hearing of the appeal the applicant should be able to persuade the court that the appeal is arguable and that if the stay is not granted the appeal would be rendered nugatory. In the instant application the applicant did not persuade me that the attack he launches on evidence is not a matter that can await the final decision of the lower court or that if the evidence is excluded, the prosecutions case would be seriously weakened in order to justify the grant of stay orders.
17. The stage at which the proceedings have reached in the lower court is important to consider before a court issues an order of stay.
18. The proceedings are at the tail end and if judgment was to be delivered against the applicant, he has a clear right of appeal on all the issues of law and fact that may impact on the decision of the trial court.
19. The court must exercise its discretion to grant stay orders carefully to avoid crippling the trial courts. A stay should issue in the clearest of cases and sparingly.
20. It does not follow that admission of evidence would automatically lead to a conviction. The trial court is well equipped to weigh the evidence for and against the accused person and render a decision based on the law and facts.
21. The criminal procedure code has sufficient safeguards for any aggrieved party in the event of a conviction. The accused person would on appeal be entitled to bail pending appeal should a conviction result upon satisfying the conditions of bail pending appeal.
22. The issues raised in the two appeals are issues that would still be live for determination should the trial court deliver a judgment that the applicant does not agree with.
23. This court is not prepared to delve into the merits of the two appeals as that may impact on the trial courts analysis of evidence and determination.
24. Accordingly, it is my finding that the trial court should be allowed to conclude the trial and if the applicant is aggrieved by the decision of the trial court, the doors of this court remain open to the applicant.
25. Interlocutory appeals should be the exception and not the rule in a country where the constitution decrees expeditious disposal of cases.
26. The court therefore declines to grant stay orders and directs that the trial court’s file be returned to the lower court for conclusion of the trial.
27. It is so ordered.
2. The applicant was charged with the following counts in the lower court:
COUNT I
OBTAINING SERVICES ON CREDIT BY FALSE PRETENCE CONTRARY TO SECTION 316(a) OF THE PENAL CODE.
KIRAN RAMJI MULJI: On diverse dates between 1st October 2015 and 23rd day of March 2020 at Westlands Sub-county within Nairobi county, in incurring a debt to LEO INVESTMENTS LIMITED, obtained credit to the amount of Ksh 2,977,271/=(Two million nine hundred and seventy seven thousand two hundred and seventy one shillings only)from the said LEO INVESTMENTS LIMITED by falsely pretending that you are in a position to pay rent services for shop no.12, occupied at main Diamond Plaza -1st floor, L.RO. 209/34/4, Masari road Nairobi.
COUNT II
ISSUING A BAD CHEQUE CONTRARY TO SECTION 316A (1) (a) AS READ WITH SECTION 316A (4) OF THE PENAL CODE.
PARTICULARS: KIRAN RAMJI MULJI: On the 10th day of October 2015 at Westlands sub-county, within Nairobi county, issued cheque No.003274 for ksh 140,117/= to LEO INVESTMENTS LIMITED
on account No 3000027969 held at PRIME BANK PARKLANDS BRANCH knowing that the said account No.3000027969 had insufficient funds.
COUNT III
ISSUING A BAD CHEQUE CONTRARY TO SECTION 316A (1) (a) AS READ WITH SECTION 316A (4) OF THE PENAL CODE.
PARTICULARS: KIRAN RAMJI MULJI: On the 28th day of November 2015 at Westlands sub-county, within Nairobi county, issued cheque No.003298 for ksh 140,117/= to LEO INVESTMENTS LIMITED
on account No.3000027969 held at PRIME BANK PARKLANDS BRANCH knowing that the said account No.3000027969 had insufficient funds.
COUNT IV
ISSUING A BAD CHEQUE CONTRARY TO SECTION 316A (1) (a) AS READ WITH SECTION 316A (4) OF THE PENAL CODE.
PARTICULARS: KIRAN RAMJI MULJI: On the 20th day of March 2016 at Westlands sub-county, within Nairobi county, issued cheque No.003359 for ksh 195,351/= to LEO INVESTMENTS LIMITED on account No.3000027969 held at PRIME BANK PARKLANDS BRANCH knowing that the said account No 3000027969 had insufficient funds.
COUNT V
ISSUING A BAD CHEQUE CONTRARY TO SECTION 316A (1) (a) AS READ WITH SECTION 316A (4) OF THE PENAL CODE.
PARTICULARS: KIRAN RAMJI MULJI: On the 12th day of May 2016 at Westlands sub-county, within Nairobi
county, issued cheque No.003362 for ksh 136,000/= to LEO INVESTMENTS LIMITED on account No.3000027969 held at PRIME BANK PARKLANDS BRANCH knowing that the said account No.3000027969 had insufficient funds.
COUNT VI
ISSUING A BAD CHEQUE CONTRARY TO SECTION 316A (1) (a) AS READ WITH SECTION 316A (4) OF THE PENAL CODE.
PARTICULARS: KIRAN RAMJI MULJI: On the 29th day of May 2016 at Westlands sub-county, within Nairobi county, issued cheque No.003395 for ksh 153,600/= to LEO INVESTMENTS LIMITED on account No.3000027969 held at PRIME BANK PARKLANDS BRANCH knowing that the said account No.3000027969 had insufficient funds
COUNT VII
ISSUING A BAD CHEQUE CONTRARY TO SECTION 316A (1) (a) AS READ WITH SECTION 316A (4) OF THE PENAL CODE.
PARTICULARS: KIRAN RAMJI MULJI: On the 12th day of June 2016 at Westlands sub-county, within Nairobi county, issued cheque No.003363 for ksh 136,000/= to LEO INVESTMENTS LIMITED on
account No.3000027969 held at PRIME BANK PARKLANDS BRANCH knowing that the said account No.3000027969 had insufficient funds
COUNT VIII
ISSUING A BAD CHEQUE CONTRARY TO SECTION 316A (1) (a) AS READ WITH SECTION 316A (4) OF THE PENAL CODE.
PARTICULARS: KIRAN RAMJI MULJI: On the 11th day of November 2016 at Westlands sub-county, within Nairobi county, issued cheque No.003453 for ksh 153,600/= to LEO INVESTMENTS LIMITED on account No.3000027969 held at PRIME BANK PARKLANDS BRANCH knowing that the Said account No.3000027969 had insufficient funds.
COUNT IX
ISSUING A BAD CHEQUE CONTRARY TO SECTION 316A (1) (a) AS READ WITH SECTION 316A (4) OF THE PENAL CODE.
PARTICULARS: KIRAN RAMJI MULJI: On the 21st day of February 2017 at Westlands sub-county, within Nairobi county, issued cheque No.003489 for ksh 775,208/= to LEO INVESTMENTS LIMITED on account No.3000027969 held at PRIME BANK PARKLANDS BRANCH knowing that the said account No.3000027969 had insufficient funds.
COUNT X
ISSUING A BAD CHEQUE CONTRARY TO SECTION 316A (1) (a) AS READ WITH SECTION 316A (4) OF THE PENAL CODE.
PARTICULARS: KIRAN RAMJI MULJI: On the 28th day of February 2017 at Westlands sub-county, within Nairobi county, issued cheque No.003488 for ksh 775,208/= to LEO INVESTMENTS LIMITED on account No.3000027969 held at PRIME BANK PARKLANDS BRANCH knowing that the said account No.3000027969 had insufficient funds.
COUNT XI
ISSUING A BAD CHEQUE CONTRARY TO SECTION 316A (1) (a) AS READ WITH SECTION 316A (4) OF THE PENAL CODE.
PARTICULARS: KIRAN RAMJI MULJI: On the 10th day of February 2017 at Westlands sub-county, within Nairobi county, issued cheque No.003511 for ksh 50,000/= to LEO INVESTMENTS LIMITED on account No.3000027969 held at PRIME BANK PARKLANDS BRANCH knowing that the said account No.3000027969 had insufficient funds
COUNT XII
ISSUING A BAD CHEQUE CONTRARY TO SECTION 316A (1) (a) AS READ WITH SECTION 316A (4) OF THE PENAL CODE.
PARTICULARS: KIRAN RAMJI MULJI: On the 10th day of February 2017, at Westlands sub-county, within Nairobi county, issued cheque No.003513 for ksh 58,000/= to LEO INVESTMENTS LIMITED on account No.3000027969 held at PRIME BANK PARKLANDS BRANCH knowing that the said account No.3000027969 had insufficient funds.
COUNT XIII
ISSUING A BAD CHEQUE CONTRARY TO SECTION 316A (1) (a) AS READ WITH SECTION 316A (4) OF THE PENAL CODE.
PARTICULARS: KIRAN RAMJI MULJI: On the 30th day of September 2019 at Westlands sub-county, within Nairobi county, issued cheque No.003568 for Ksh 69,000/= to LEO INVESTMENTS LIMITED on account No.3000027969 held at PRIME BANK PARKLANDS BRANCH knowing that the said account No.3000027969 had insufficient funds.
COUNT XIV
ISSUING A BAD CHEQUE CONTRARY TO SECTION 316A (1) (a) AS READ WITH SECTION 316A (4) OF THE PENAL CODE.
PARTICULARS: KIRAN RAMJI MULJI: On the 15th day of December 2019 at Westlands sub-county, within Nairobi county, issued cheque No.004001 for Ksh 4,266/= to LEO INVESTMENTS LIMITED on account No.3000027969 held at PRIME BANK PARKLANDS BRANCH knowing that the said account No.3000027969 had insufficient funds.
COUNT XV
ISSUING A BAD CHEQUE CONTRARY TO SECTION 316A (1) (a) AS READ WITH SECTION 316A (4) OF THE PENAL CODE.
PARTICULARS: KIRAN RAMJI MULJI: On the 10th day of March 2020 at Westlands sub-county, within Nairobi county, issued cheque No.004011 for Ksh 87,000/= to LEO INVESTMENTS LIMITED on account No.3000027969 held at PRIME BANK PARKLANDS BRANCH knowing that the said account No.3000027969 had insufficient funds.
COUNT XVI
ISSUING A BAD CHEQUE CONTRARY TO SECTION 316A (1) (a) AS READ WITH SECTION 316A (4) OF THE PENAL CODE.
PARTICULARS: KIRAN RAMJI MULJI: On the 23rd day of March 2020 at Westlands sub-county, within Nairobi county, issued cheque No.004016 for Ksh 99,700/= to LEO INVESTMENTS LIMITED on account No.3000027969 held at PRIME BANK PARKLANDS BRANCH knowing that the said account No.3000027969 had insufficient funds
COUNT XVII
ISSUING A BAD CHEQUE CONTRARY TO SECTION 316A (1) (a) AS READ WITH SECTION 316A (4) OF THE PENAL CODE.
PARTICULARS: KIRAN RAMJI MULJI: On the 23rd day of March 2020 at Westlands sub-county, within Nairobi county, issued cheque No.004017 for Ksh 4,104/= to LEO INVESTMENTS LIMITED on account No.3000027969 held at PRIME BANK PARKLANDS BRANCH knowing that the said account No.3000027969 had insufficient funds.
3. The two appeals basically touch on admissibility of evidence and the applicant’s argument is that if this court does not grant stay there is possibility that judgment in the lower court will be delivered by the magistrate thus rendering the appeals redundant.
4. The respondents are opposed to the application and maintain that if this court allows the application, the lower court would be unfairly prevented from exercising its jurisdiction over the matter yet in the respondent’s view the appeals are a non-starter purely on a point of law.
5. The respondent argue that the appeals are meant to scuttle the delivery of judgment yet all the issues raised by the applicant are matters that can safely await the final decision of the trial court and that if the applicant is dissatisfied with the judgment nothing would prevent him from raising all those issues on appeal.
6. This court has considered the arguments made by each of the parties in favor of their respective positions on the matter. The court is alive to the provisions of Section 347 of the Criminal Procedure Code which provide that :-
347. Appeal to High Court(1) Save as is in this Part provided—(a) a person convicted on a trial held by a subordinate court of the first or second class may appeal to the High Court; and(b)Repealed by Act No. 5 of 2003, s. 93.(2) An appeal to the High Court may be on a matter of fact as well as on a matter of law.
7. The section grants an unlimited right to any accused person convicted by a subordinate court to appeal against the decision of that court to the High court. Thus, in the ordinary course of proceedings interlocutory appeals are the exception and not the rule.
8. A reading of Section 347 creates serious doubts in the mind of this court as to the likelihood of the success of the appeals by the applicant considering the stage at which the appeals have been brought. The lower court is at the tail end of proceedings thus staying the matter at this stage would simply mean that the trial court will have to down tools and await the decision of the High Court on the two appeals.
9. The High Court has to be careful whenever called upon to stay proceedings before the lower courts more so when the trial in the trial court is at an advanced stage. The court should only intervene in the clearest of cases where an injustice or the likelihood of it being suffered by the accused, victim or the prosecution is adequately demonstrated. For instance, a threat of breach of the fair trial rights of the accused should be one such ground and evidence must be laid before the judge before proceeds to halt the proceedings.
10. This is important because do entertain stay applications that are premised on mere apprehensions by accused persons or any party to the proceedings could render the trial courts unable to discharge their Constitutional and statutory duty to hear criminal cases expeditiously in line with Article 159 of the Constitution.
11. This court has considered the position taken by the Court of appeal and the Supreme court on the viability of interlocutory appeals.
12. In Thomas Patrick Gilbert Cholmondeley v Republic [2008] KECA 319 (KLR) the Court of Appeal held;-
“We must now deal with the reasons why we ruled that the appeal before us was competent and that we had jurisdiction to deal with it. In ordinary criminal trials, there is generally no interlocutory appeals allowed for section 379 (1) of the Criminal Procedure Code allows only appeals by persons who have been convicted of some offence. The Appellant has not been convicted of any offence. As far as we understand the position the basis of an appeal cannot be that an order made in the course of a trial is highly prejudicial to an accused person; Muga Apondi, J ruled that the appellant had a case to answer and even if that order would be seen as being prejudicial that alone would not have entitled the appellant to appeal. But the basis of this appeal, as far as we are concerned is that the learned Judge made an order in the course of the trial which violated the appellant’s fundamental rights guaranteed by section 77 of the Constitution. Whether that order was made pursuant to section 60 (1) of the Constitution, and we have found it could not have been made under that section, or whether it was made pursuant to the exercise of inherent jurisdiction as the learned Judge said he was doing, the effect of the order was to violate the appellant’s rights under section 77. The appellant had two choices. He could have chosen to wait until after the determination of the charge against him and if he was convicted, he would be entitled to appeal on all aspects of the trial. Secondly, he had the option to appeal under section 84 (1) of the Constitution”
13. In Waswa v Republic (Petition 23 of 2019) [2020] KESC 23 (KLR) (4 September 2020) (Judgment) the Supreme Court held;-
“The right of appeal against interlocutory decisions was available to a party in a criminal trial but should be deferred, and await the final determination by the trial court. A person seeking to appeal against an interlocutory decision had to file the intended notice of appeal within 14 days of the trial court’s judgment. However, exceptional circumstances could exist where an appeal on an interlocutory decision could be sparingly allowed, these included:-a). where the decision concerned the admissibility of evidence, which, if ruled inadmissible, would eliminate or substantially weaken the prosecution case;b). when the decision was of sufficient importance to the trial to justify it being determined on an interlocutory appeal; and
c). where the decision entailed the recusal of the trial court to hear the cause.”
14. Taking into account the two decisions of the superior courts, this court is minded to hold that the success of the appeals by the applicant is a matter that heavily depends on a demonstration of the violation of rights of the applicant or the effect of the admission of evidence on the trial of the applicant more on the strength of the prosecution’s case if the impugned documents were to be excluded.
15. The Supreme Court placed a burden upon the appellant in an interlocutory appeal to demonstrate that “ the decision concerned the admissibility of evidence, which, if ruled inadmissible, would eliminate or substantially weaken the prosecution case;” The appellant in an interlocutory appeal has to satisfy that threshold if he seeks exclusion of evidence.
16. In order to succeed in a stay application pending the hearing of the appeal the applicant should be able to persuade the court that the appeal is arguable and that if the stay is not granted the appeal would be rendered nugatory. In the instant application the applicant did not persuade me that the attack he launches on evidence is not a matter that can await the final decision of the lower court or that if the evidence is excluded, the prosecutions case would be seriously weakened in order to justify the grant of stay orders.
17. The stage at which the proceedings have reached in the lower court is important to consider before a court issues an order of stay.
18. The proceedings are at the tail end and if judgment was to be delivered against the applicant, he has a clear right of appeal on all the issues of law and fact that may impact on the decision of the trial court.
19. The court must exercise its discretion to grant stay orders carefully to avoid crippling the trial courts. A stay should issue in the clearest of cases and sparingly.
20. It does not follow that admission of evidence would automatically lead to a conviction. The trial court is well equipped to weigh the evidence for and against the accused person and render a decision based on the law and facts.
21. The criminal procedure code has sufficient safeguards for any aggrieved party in the event of a conviction. The accused person would on appeal be entitled to bail pending appeal should a conviction result upon satisfying the conditions of bail pending appeal.
22. The issues raised in the two appeals are issues that would still be live for determination should the trial court deliver a judgment that the applicant does not agree with.
23. This court is not prepared to delve into the merits of the two appeals as that may impact on the trial courts analysis of evidence and determination.
24. Accordingly, it is my finding that the trial court should be allowed to conclude the trial and if the applicant is aggrieved by the decision of the trial court, the doors of this court remain open to the applicant.
25. Interlocutory appeals should be the exception and not the rule in a country where the constitution decrees expeditious disposal of cases.
26. The court therefore declines to grant stay orders and directs that the trial court’s file be returned to the lower court for conclusion of the trial.
27. It is so ordered.