1. The respondent Brian Yongo Otuba raised a preliminary objection the admission of this appeal to hearing citing the fact that the appeal record was defective and that the grounds of appeal do not meet the requirements of Section 350 of the Criminal Procedure Code.
2. The petition of appeal sets the following grounds;-
a) THAT the learned trial magistrate erred in both Law and Fact in failing to find that the prosecution had discharged its burden of proof thereby acquitting the Respondent.
b) THAT the learned trial magistrate erred in both Law and Fact in failing to properly analyze the entire prosecution's evidence thereby acquitting the Respondent.
c) THAT the Learned Trial Magistrate erred in law and fact by disregarding the evidence by the prosecution and its witnesses which proved the offence of Forgery, uttering of a document, being in possession of suspected stolen property and obtaining by false pretense against the accused person.
d) The Learned Trial Magistrate erred in law and fact by considering extraneous matters to arrive at a wrongful conclusion that the accused person did not forge, utter, be in possession nor obtain by false pretenses.
e) The Learned Trial Magistrate erred in law and fact by failing to appreciate the fact that the evidence adduced by the prosecution was unchallenged and corroborated.
f) The Learned Trial Magistrate misdirected himself in fact and law by failing to take into consideration the ingredients of the offences facing the accused person.
g) The Learned Trial Magistrate erred in law and fact by failing to comply with the provisions of Section 169 of the Criminal Procedure Code by failing to analyse the evidence on record, formulate issues for determination or reasons thereof as he was duty bound to do.
RESPONDENTS SUBMISSION ON PRELIMINARY OBJECTION
3. The Respondent, appearing in person, filed submissions, urging the court to strike out the appeal on the ground that the record as constituted is incomplete and fatally defective.
4. The Respondent opened his submissions by submitting that a record of appeal must, of necessity, contain all pleadings relevant to the determination of the appeal, and that the omission of the Respondent's submissions filed before the trial court — submissions which formed the basis of the lower court's decision denies the appellate court the ability to interrogate the impugned judgment, thereby rendering the record a nullity.
5. The respondent relied on Odinga v Independent Electoral & Boundaries Commission & 3 others [2013] KESC 8 (KLR) , submitting that Article 159(2)(d) of the Constitution was never intended to oust litigants' obligation to comply with procedural imperatives, and that the DPP, as a state organ is expected to maintain high standards of procedural integrity, cannot invoke Article 159 to excuse what he characterises as professional negligence in compiling the record.
6. The Respondent submitted that requiring him to defend an appeal on a selective and incomplete record offends the principle of equality of arms and infringes his right to a fair trial under Article 50(1) of the Constitution.
7. The respondent maintained that this is not a mere technical irregularity but a substantive failure prejudicing his right to a fair hearing, since the court cannot properly interrogate the lower court's decision without sight of the submission he relied upon to succeed below.
8. The respondent further contended that an appeal filed without the primary documents is incompetently lodged, and a record that is incomplete is, in the eyes of the law, "no record" at all.
9. In advancing that proposition, the Respondent submitted that while Article 159(2)(d) directs courts to prioritise substantive justice over technicalities, Kenyan courts have consistently held that "procedural rules are not mere suggestions," and that where an omission prevents the court from performing its review, the resulting defect is fatal and incapable of cure under Article 159.
10. The respondent cited Aluochier v Independent Electoral and Boundaries Commission & 17 others , in which the Supreme Court affirmed that failure to annex the decision sought to be reviewed is fatal, as it denies the court the opportunity to interrogate the impugned decision.
11. He further cited Edward Kariuki Gichohi v Henry Mulwa [2021] KEELC 2031 (KLR) , submitting that the court in that matter struck out a record of appeal for incompleteness and the absence of primary documents, noting that multiple extensions of time to regularise the record had been disregarded.
12. He further cited Deepak Kamani & another v Kenya Anti-Corruption Commission & 3 others [2010] eKLR , which he acknowledges takes a more lenient view grounded in the Overriding Objective, but submits that even that authority concedes that a "draconian step" such as striking out is appropriate where no alternative exists for dealing with an appeal justly.
13. He also relied on Director of Public Prosecutions v Chrysanthus Barnabus Okemo & 4 others [2018] eKLR for the proposition that an application predicated on a non-existent or null foundation such as an incompetent petition or record is itself a nullity.
14. The Respondent further submitted that the duty to compile a complete record, rests on the Appellant and by withholding portions of the lower court record, the appellant is in effect asking the court to sit on appeal on vacuum in violation of Article 50(1).
15. He further invoked M'Mbui v Mwenda (1986) for the holding that a record missing fundamental documents is incurably defective, adding that the DPP, notwithstanding its status as a public prosecutor, is held to the same standard of procedural integrity as any other litigant.
16. The respondent posited that he would gravely prejudiced, as the court is being asked to review a decision without sight of the arguments upon which he relied to prevail in the lower court, and that this failure amounts to a jurisdictional defect incapable of being cured by a supplementary record at this late stage without leave of the court on this basis, he prays that the application be allowed and the appeal struck out with costs.
17. According to the respondent non-compliance with mandatory procedural law, prevents the appellate court from reassessing the matter as a rehearing as envisaged by the law on first appeals.
18. Addressing the limits of any remedial supplementary filing, the Respondent submitted that a supplementary record cannot save the appeal in three circumstances: first, where the missing material comprises "mandatory" documents such as the Memorandum of Appeal or the decree or judgment under appeal; second, where documents were available before the lower court but omitted without explanation, in which case courts are disinclined to permit a cure by supplementary filing; and third, where any application to file a supplementary record is brought after unreasonable delay, such that it may be dismissed as an abuse of process.
19. He submitted that the Appellant's contention that this omission raises no point of law is erroneous, reiterating that as was held in Edward Kariuki Gichohi v Henry Mulwa [2021] eKLR that a record omitting submissions central to the lower court's reasoning is fatally defective and incompetently lodged, and that the court cannot exercise appellate jurisdiction over a nullity; accordingly, he submitted, the legal sufficiency of the record to sustain the appeal is a pure question of law.
20. The Respondent concluded by submitting that, while the DPP holds an independent constitutional office under Article 157 , it nonetheless remains a litigant before the court and must adhere to the same procedural standards as any other party, and that the Overriding Objective does not furnish a "blank cheque" to disregard mandatory timelines or procedural rules.
APPELLANT’S RESPONSE TO THE PRELIMINARY OBJECTION
21. In response to a preliminary objection filed by the respondent dated 18th February 2026, along with a list of authorities dated the same date, the Appellant urged this Honourable Court to find that the preliminary objection is devoid of merit and incapable of disposing of the appeal.
22. The Appellant submitted that the present appeal arose from dissatisfaction with the judgment of the Chief Magistrate's Court at Milimani delivered by Hon. Ben Mark (M.R) (S.P.M), wherein the Respondent was acquitted under section 215 of the Criminal Procedure Code.
23. The appellant submitted that the Respondent's preliminary objection is premised on the allegation that the record of appeal is incomplete for failure to include the Appellant's written submissions and authorities relating to the trial, thereby rendering the appeal incompetent.
24. The Appellant submitted that the Respondent's objection does not meet the settled legal threshold of a preliminary objection as established in MUKISA BISCUIT MANUFACTURING CO. LTD v. WEST END DISTRIBUTORS LTD [1969] 1 EA 696 (CAN) .
25. The Appellant further relied on Aviation & Allied Workers Union Kenya v. Kenya Airways Limited & 3 others (Petition 4 of 2015) [2017] KESC 11 (KLR) (28 July 2017) (Judgment) and Civil Appeal No. 247 of 2011 William Kiprono Towett & 1597 others v. Farmland Aviation Ltd & 2 others [2016] eKLR , and submitted that a valid preliminary objection must raise a pure point of law capable of disposing of the matter without requiring the Court to ascertain facts or exercise judicial discretion.
26. It was the Appellant's position that the record of appeal substantially complies with the legal requirements since the essential documents necessary for the determination of the appeal, including the Memorandum of Appeal, the judgment and the relevant proceedings, are already before the Court. Consequently, any omission in the record is not fatal to the appeal.
27. The Appellant further submitted that any defect in the record is curable through the filing of a supplementary record of appeal pursuant to Court of Appeal Rules, Rule 87 , and respectfully invites the Court to exercise its discretion in permitting the filing of the omitted documents.
28. In support of this contention, reliance was placed on Shabbir Ali Jusab v Annar Osman & another Supreme Court Civil Application No 1 of 2013 , where the Court declined to uphold a preliminary objection and instead favoured substantive justice over procedural technicalities.
29. The Appellant therefore undertook to file a supplementary record containing the omitted documents, duly certified where necessary, and maintained that the alleged omission does not occasion any prejudice capable of defeating the appeal.
30. The Appellant respectfully submitted that the Respondent's preliminary objection was misconceived and without legal merit.
31. The appellant thus urged the court to dismiss the preliminary objection, permit the filing of a supplementary record where necessary, and allow the appeal to proceed to hearing on its merits in the interests of substantive justice.
ANALYSIS AND DETERMINATION
32. The law on admission or summary rejection of criminal appeals is to be found in S ection 352(2) of the Criminal Procedure Code which provides;-
Summary rejection of appeal
( 1) When the High Court has received the petition and copy under section 350, a judge shall peruse them, and, if he considers that there is no sufficient ground for interfering, may, notwithstanding the provisions of section 359, reject the appeal
summarily:
Provided that no appeal shall be rejected summarily unless the appellant or his advocate has had the opportunity of being heard in support of the appeal, except—
(i) in a case falling within subsection (2) of this section;
(ii) repealed by Act No. 5 of 2003, s. 94.
(2) Where an appeal is brought on the ground that the conviction is against the weight of the evidence, or that the sentence is excessive, and it appears to a judge that the evidence is sufficient to support the conviction and that there is no material in the circumstances of the case which could raise a reasonable doubt whether the conviction was right or lead him to the opinion that the sentence ought to be reduced, the appeal may, without being set down for hearing, be summarily rejected by an order of the judge certifying that he has perused the record and is satisfied that the appeal has been lodged without any sufficient ground for complaint.
(3) Whenever an appeal is summarily rejected notice of rejection shall forthwith be given to the Director of Public Prosecutions and to the appellant or his advocate.
33. The instant appeal is against an acquittal and my interpretation of Section 352 of the CPC is that where the appeal is purely premised on the weight of evidence then once the court is satisfied that the evidence in the lower court could not sustain the charges then the court is at liberty to summarily reject the appeal by parity of reasoning.
34. The respondent in this matter urged the court to consider striking out of the appeal or otherwise summarily rejecting the appeal on the ground that the submissions he relied on in the lower court and which in his opinion led the court to acquitting him have not been included in the record of appeal thus he submitted that the court should find that the appeal is incompetent and that the court would not be able to properly adjudicate on the matter on appeal.
35. The duty of the first appellate court is to accord the appeal a scrutiny of the evidence and draw independent conclusions from it as to whether the decision arrived at by the trial court was supported by the evidence. The court therefore asses the evidence at the admission stage to satisfy itself as to whether the appeal can pass the test under Section 352 of the Criminal Procedure Code.
36. The failure to include the submissions of the respondent in the lower court though a curable defect, cannot be excused where the appeal is found wanting under Section 352 of the CPC. The inference that the court draws for the omission by the appellants is that they did not intend to allow the court an opportunity to scrutinize the appeal fully at the admission stage.
37. The appellant contended that the defect is curable and they would be able to remedy it by filing a supplementary record of appeal. The appellant did not however say why that has not been done for close to two years given the trial in this case began in 2018, any further delay in the appeal would occasion a failure of justice. The court cannot countenance such unexplained lapses.
38. The appellant further argued that the preliminary objection does not meet the test of a preliminary objection as postulated in the case of MUKISA BISCUIT MANUFACTURING CO. LTD v. WEST END DISTRIBUTORS LTD [1969] 1 EA 696 (CAN) .
39. This court understood the appellant to be saying that the issue raised was not a pure point of law capable of disposing of the appeal. The issue of completeness of record is not an arguable matter for the record speaks for itself and in any event, there is no denial by the appellant that there was such an omission.
40. The appellant submitted that Rule 87, of the Court of Appeal Rules, allows the appellant to file a supplementary record of appeal to remedy any defect in the record thus the court should not be quick to reject the appeal. The appellant in this courts view failed to realize that the Court of Appeal rules only govern appeals before the Court of Appeal and for the purposes of any appeal in the High Court, the procedure of filing and determination of appeals is as specifically set out under PART XI – APPEALS FROM SUBORDINATE COURTS- Sections 350 -360 of the Criminal Procedure Code.
41. The court has noted that the appellant has not sought leave to file the supplementary record of appeal so many years down the line since the filing of the appeal thus the undertaking that they would file one, appears to have been prompted by the preliminary objection by the respondent.
42. The appellant cannot be allowed to keep the threat of prosecution hanging over the head of the head of the respondent like the sword of Damocles. The right to an expeditious trial in a criminal matter includes the right to a speedy determination of any appeal arising from a criminal prosecution. It becomes even more important where a trial has resulted in an acquittal any appeal against that decision by the state must be robustly pursued since the accused person’s innocence has been determined thus keeping him in the corridors of justice must be on very sound ground.
43. A criminal case bogs down an individual and interferes with his freedom to go about his business in life as a free man thus indolence must be avoided.
44. Equity assists the vigilant. The appellant in this matter is guilty of inertia and has not demonstrated why for close to two years there has not been any application on their part to seek leave to file a supplementary record of appeal.
45. In Onesmas Musyoki Mutune v Republic [2011] KECA 105 (KLR) the court held:-
“It follows therefore that summary rejection of criminal appeals may be based on two grounds only, namely, that the:
(i) Appeal is against the weight of evidence,
(ii) Appeal is against excess of sentence.
Although the exercise of the power of summary dismissal under section 352(2) of the Criminal Procedure Code is strictly limited to cases where the appeal is brought on the ground that the conviction is against the weight of evidence or that the sentence is excessive – see Aggrey v Republic [1983] KLR 649 , it is not a prerequisite that for an appeal to fall under the ambit of that section the petition should expressly use those specific words. It is sufficient if the substance of the grounds of appeal clearly indicate that conviction is against the weight of evidence; see Osongo & Another v Republic [1972] E.A. 170.”
46. The court has perused the record as filed and it is clear that this appeal is one that must suffer the fate prescribed under Section 352(2) of the Criminal Procedure.
47. The entire appeal is basically premised on the weight of the evidence which the appellant contends was not properly taken into account.
48. However, having gone through the record, this court finds that the decision of the learned Honorable Magistrate to acquit the respondent was properly grounded in law and evidence thus the appeal cannot possibly succeed and lead to reversal of the decision of the trial court.
49. Accordingly, the preliminary objection by the respondent is allowed and the appeal is hereby summarily rejected.
50. It is so ordered.
2. The petition of appeal sets the following grounds;-
a) THAT the learned trial magistrate erred in both Law and Fact in failing to find that the prosecution had discharged its burden of proof thereby acquitting the Respondent.
b) THAT the learned trial magistrate erred in both Law and Fact in failing to properly analyze the entire prosecution's evidence thereby acquitting the Respondent.
c) THAT the Learned Trial Magistrate erred in law and fact by disregarding the evidence by the prosecution and its witnesses which proved the offence of Forgery, uttering of a document, being in possession of suspected stolen property and obtaining by false pretense against the accused person.
d) The Learned Trial Magistrate erred in law and fact by considering extraneous matters to arrive at a wrongful conclusion that the accused person did not forge, utter, be in possession nor obtain by false pretenses.
e) The Learned Trial Magistrate erred in law and fact by failing to appreciate the fact that the evidence adduced by the prosecution was unchallenged and corroborated.
f) The Learned Trial Magistrate misdirected himself in fact and law by failing to take into consideration the ingredients of the offences facing the accused person.
g) The Learned Trial Magistrate erred in law and fact by failing to comply with the provisions of Section 169 of the Criminal Procedure Code by failing to analyse the evidence on record, formulate issues for determination or reasons thereof as he was duty bound to do.
RESPONDENTS SUBMISSION ON PRELIMINARY OBJECTION
3. The Respondent, appearing in person, filed submissions, urging the court to strike out the appeal on the ground that the record as constituted is incomplete and fatally defective.
4. The Respondent opened his submissions by submitting that a record of appeal must, of necessity, contain all pleadings relevant to the determination of the appeal, and that the omission of the Respondent's submissions filed before the trial court — submissions which formed the basis of the lower court's decision denies the appellate court the ability to interrogate the impugned judgment, thereby rendering the record a nullity.
5. The respondent relied on Odinga v Independent Electoral & Boundaries Commission & 3 others [2013] KESC 8 (KLR) , submitting that Article 159(2)(d) of the Constitution was never intended to oust litigants' obligation to comply with procedural imperatives, and that the DPP, as a state organ is expected to maintain high standards of procedural integrity, cannot invoke Article 159 to excuse what he characterises as professional negligence in compiling the record.
6. The Respondent submitted that requiring him to defend an appeal on a selective and incomplete record offends the principle of equality of arms and infringes his right to a fair trial under Article 50(1) of the Constitution.
7. The respondent maintained that this is not a mere technical irregularity but a substantive failure prejudicing his right to a fair hearing, since the court cannot properly interrogate the lower court's decision without sight of the submission he relied upon to succeed below.
8. The respondent further contended that an appeal filed without the primary documents is incompetently lodged, and a record that is incomplete is, in the eyes of the law, "no record" at all.
9. In advancing that proposition, the Respondent submitted that while Article 159(2)(d) directs courts to prioritise substantive justice over technicalities, Kenyan courts have consistently held that "procedural rules are not mere suggestions," and that where an omission prevents the court from performing its review, the resulting defect is fatal and incapable of cure under Article 159.
10. The respondent cited Aluochier v Independent Electoral and Boundaries Commission & 17 others , in which the Supreme Court affirmed that failure to annex the decision sought to be reviewed is fatal, as it denies the court the opportunity to interrogate the impugned decision.
11. He further cited Edward Kariuki Gichohi v Henry Mulwa [2021] KEELC 2031 (KLR) , submitting that the court in that matter struck out a record of appeal for incompleteness and the absence of primary documents, noting that multiple extensions of time to regularise the record had been disregarded.
12. He further cited Deepak Kamani & another v Kenya Anti-Corruption Commission & 3 others [2010] eKLR , which he acknowledges takes a more lenient view grounded in the Overriding Objective, but submits that even that authority concedes that a "draconian step" such as striking out is appropriate where no alternative exists for dealing with an appeal justly.
13. He also relied on Director of Public Prosecutions v Chrysanthus Barnabus Okemo & 4 others [2018] eKLR for the proposition that an application predicated on a non-existent or null foundation such as an incompetent petition or record is itself a nullity.
14. The Respondent further submitted that the duty to compile a complete record, rests on the Appellant and by withholding portions of the lower court record, the appellant is in effect asking the court to sit on appeal on vacuum in violation of Article 50(1).
15. He further invoked M'Mbui v Mwenda (1986) for the holding that a record missing fundamental documents is incurably defective, adding that the DPP, notwithstanding its status as a public prosecutor, is held to the same standard of procedural integrity as any other litigant.
16. The respondent posited that he would gravely prejudiced, as the court is being asked to review a decision without sight of the arguments upon which he relied to prevail in the lower court, and that this failure amounts to a jurisdictional defect incapable of being cured by a supplementary record at this late stage without leave of the court on this basis, he prays that the application be allowed and the appeal struck out with costs.
17. According to the respondent non-compliance with mandatory procedural law, prevents the appellate court from reassessing the matter as a rehearing as envisaged by the law on first appeals.
18. Addressing the limits of any remedial supplementary filing, the Respondent submitted that a supplementary record cannot save the appeal in three circumstances: first, where the missing material comprises "mandatory" documents such as the Memorandum of Appeal or the decree or judgment under appeal; second, where documents were available before the lower court but omitted without explanation, in which case courts are disinclined to permit a cure by supplementary filing; and third, where any application to file a supplementary record is brought after unreasonable delay, such that it may be dismissed as an abuse of process.
19. He submitted that the Appellant's contention that this omission raises no point of law is erroneous, reiterating that as was held in Edward Kariuki Gichohi v Henry Mulwa [2021] eKLR that a record omitting submissions central to the lower court's reasoning is fatally defective and incompetently lodged, and that the court cannot exercise appellate jurisdiction over a nullity; accordingly, he submitted, the legal sufficiency of the record to sustain the appeal is a pure question of law.
20. The Respondent concluded by submitting that, while the DPP holds an independent constitutional office under Article 157 , it nonetheless remains a litigant before the court and must adhere to the same procedural standards as any other party, and that the Overriding Objective does not furnish a "blank cheque" to disregard mandatory timelines or procedural rules.
APPELLANT’S RESPONSE TO THE PRELIMINARY OBJECTION
21. In response to a preliminary objection filed by the respondent dated 18th February 2026, along with a list of authorities dated the same date, the Appellant urged this Honourable Court to find that the preliminary objection is devoid of merit and incapable of disposing of the appeal.
22. The Appellant submitted that the present appeal arose from dissatisfaction with the judgment of the Chief Magistrate's Court at Milimani delivered by Hon. Ben Mark (M.R) (S.P.M), wherein the Respondent was acquitted under section 215 of the Criminal Procedure Code.
23. The appellant submitted that the Respondent's preliminary objection is premised on the allegation that the record of appeal is incomplete for failure to include the Appellant's written submissions and authorities relating to the trial, thereby rendering the appeal incompetent.
24. The Appellant submitted that the Respondent's objection does not meet the settled legal threshold of a preliminary objection as established in MUKISA BISCUIT MANUFACTURING CO. LTD v. WEST END DISTRIBUTORS LTD [1969] 1 EA 696 (CAN) .
25. The Appellant further relied on Aviation & Allied Workers Union Kenya v. Kenya Airways Limited & 3 others (Petition 4 of 2015) [2017] KESC 11 (KLR) (28 July 2017) (Judgment) and Civil Appeal No. 247 of 2011 William Kiprono Towett & 1597 others v. Farmland Aviation Ltd & 2 others [2016] eKLR , and submitted that a valid preliminary objection must raise a pure point of law capable of disposing of the matter without requiring the Court to ascertain facts or exercise judicial discretion.
26. It was the Appellant's position that the record of appeal substantially complies with the legal requirements since the essential documents necessary for the determination of the appeal, including the Memorandum of Appeal, the judgment and the relevant proceedings, are already before the Court. Consequently, any omission in the record is not fatal to the appeal.
27. The Appellant further submitted that any defect in the record is curable through the filing of a supplementary record of appeal pursuant to Court of Appeal Rules, Rule 87 , and respectfully invites the Court to exercise its discretion in permitting the filing of the omitted documents.
28. In support of this contention, reliance was placed on Shabbir Ali Jusab v Annar Osman & another Supreme Court Civil Application No 1 of 2013 , where the Court declined to uphold a preliminary objection and instead favoured substantive justice over procedural technicalities.
29. The Appellant therefore undertook to file a supplementary record containing the omitted documents, duly certified where necessary, and maintained that the alleged omission does not occasion any prejudice capable of defeating the appeal.
30. The Appellant respectfully submitted that the Respondent's preliminary objection was misconceived and without legal merit.
31. The appellant thus urged the court to dismiss the preliminary objection, permit the filing of a supplementary record where necessary, and allow the appeal to proceed to hearing on its merits in the interests of substantive justice.
ANALYSIS AND DETERMINATION
32. The law on admission or summary rejection of criminal appeals is to be found in S ection 352(2) of the Criminal Procedure Code which provides;-
Summary rejection of appeal
( 1) When the High Court has received the petition and copy under section 350, a judge shall peruse them, and, if he considers that there is no sufficient ground for interfering, may, notwithstanding the provisions of section 359, reject the appeal
summarily:
Provided that no appeal shall be rejected summarily unless the appellant or his advocate has had the opportunity of being heard in support of the appeal, except—
(i) in a case falling within subsection (2) of this section;
(ii) repealed by Act No. 5 of 2003, s. 94.
(2) Where an appeal is brought on the ground that the conviction is against the weight of the evidence, or that the sentence is excessive, and it appears to a judge that the evidence is sufficient to support the conviction and that there is no material in the circumstances of the case which could raise a reasonable doubt whether the conviction was right or lead him to the opinion that the sentence ought to be reduced, the appeal may, without being set down for hearing, be summarily rejected by an order of the judge certifying that he has perused the record and is satisfied that the appeal has been lodged without any sufficient ground for complaint.
(3) Whenever an appeal is summarily rejected notice of rejection shall forthwith be given to the Director of Public Prosecutions and to the appellant or his advocate.
33. The instant appeal is against an acquittal and my interpretation of Section 352 of the CPC is that where the appeal is purely premised on the weight of evidence then once the court is satisfied that the evidence in the lower court could not sustain the charges then the court is at liberty to summarily reject the appeal by parity of reasoning.
34. The respondent in this matter urged the court to consider striking out of the appeal or otherwise summarily rejecting the appeal on the ground that the submissions he relied on in the lower court and which in his opinion led the court to acquitting him have not been included in the record of appeal thus he submitted that the court should find that the appeal is incompetent and that the court would not be able to properly adjudicate on the matter on appeal.
35. The duty of the first appellate court is to accord the appeal a scrutiny of the evidence and draw independent conclusions from it as to whether the decision arrived at by the trial court was supported by the evidence. The court therefore asses the evidence at the admission stage to satisfy itself as to whether the appeal can pass the test under Section 352 of the Criminal Procedure Code.
36. The failure to include the submissions of the respondent in the lower court though a curable defect, cannot be excused where the appeal is found wanting under Section 352 of the CPC. The inference that the court draws for the omission by the appellants is that they did not intend to allow the court an opportunity to scrutinize the appeal fully at the admission stage.
37. The appellant contended that the defect is curable and they would be able to remedy it by filing a supplementary record of appeal. The appellant did not however say why that has not been done for close to two years given the trial in this case began in 2018, any further delay in the appeal would occasion a failure of justice. The court cannot countenance such unexplained lapses.
38. The appellant further argued that the preliminary objection does not meet the test of a preliminary objection as postulated in the case of MUKISA BISCUIT MANUFACTURING CO. LTD v. WEST END DISTRIBUTORS LTD [1969] 1 EA 696 (CAN) .
39. This court understood the appellant to be saying that the issue raised was not a pure point of law capable of disposing of the appeal. The issue of completeness of record is not an arguable matter for the record speaks for itself and in any event, there is no denial by the appellant that there was such an omission.
40. The appellant submitted that Rule 87, of the Court of Appeal Rules, allows the appellant to file a supplementary record of appeal to remedy any defect in the record thus the court should not be quick to reject the appeal. The appellant in this courts view failed to realize that the Court of Appeal rules only govern appeals before the Court of Appeal and for the purposes of any appeal in the High Court, the procedure of filing and determination of appeals is as specifically set out under PART XI – APPEALS FROM SUBORDINATE COURTS- Sections 350 -360 of the Criminal Procedure Code.
41. The court has noted that the appellant has not sought leave to file the supplementary record of appeal so many years down the line since the filing of the appeal thus the undertaking that they would file one, appears to have been prompted by the preliminary objection by the respondent.
42. The appellant cannot be allowed to keep the threat of prosecution hanging over the head of the head of the respondent like the sword of Damocles. The right to an expeditious trial in a criminal matter includes the right to a speedy determination of any appeal arising from a criminal prosecution. It becomes even more important where a trial has resulted in an acquittal any appeal against that decision by the state must be robustly pursued since the accused person’s innocence has been determined thus keeping him in the corridors of justice must be on very sound ground.
43. A criminal case bogs down an individual and interferes with his freedom to go about his business in life as a free man thus indolence must be avoided.
44. Equity assists the vigilant. The appellant in this matter is guilty of inertia and has not demonstrated why for close to two years there has not been any application on their part to seek leave to file a supplementary record of appeal.
45. In Onesmas Musyoki Mutune v Republic [2011] KECA 105 (KLR) the court held:-
“It follows therefore that summary rejection of criminal appeals may be based on two grounds only, namely, that the:
(i) Appeal is against the weight of evidence,
(ii) Appeal is against excess of sentence.
Although the exercise of the power of summary dismissal under section 352(2) of the Criminal Procedure Code is strictly limited to cases where the appeal is brought on the ground that the conviction is against the weight of evidence or that the sentence is excessive – see Aggrey v Republic [1983] KLR 649 , it is not a prerequisite that for an appeal to fall under the ambit of that section the petition should expressly use those specific words. It is sufficient if the substance of the grounds of appeal clearly indicate that conviction is against the weight of evidence; see Osongo & Another v Republic [1972] E.A. 170.”
46. The court has perused the record as filed and it is clear that this appeal is one that must suffer the fate prescribed under Section 352(2) of the Criminal Procedure.
47. The entire appeal is basically premised on the weight of the evidence which the appellant contends was not properly taken into account.
48. However, having gone through the record, this court finds that the decision of the learned Honorable Magistrate to acquit the respondent was properly grounded in law and evidence thus the appeal cannot possibly succeed and lead to reversal of the decision of the trial court.
49. Accordingly, the preliminary objection by the respondent is allowed and the appeal is hereby summarily rejected.
50. It is so ordered.