1) The Applicant is aggrieved by the ruling of this court delivered on 8th April 2024 which dismissed its appeal dated and filed on 29th January 2024, being HCACEC Criminal Appeal Number E001 of 2024, Republic v Dave Munya Mwangi & Others (hereinafter referred to as “the Dismissed Appeal”) for failure to comply with the directions regarding filing and service of the Record of Appeal (ROA).
2) The Appeal sought to challenge the judgment of the trial court in Anti-Corruption Case Number 2 of 2015: Republic v Dave Munya Mwangi & Others delivered on 19th January 2024, which had acquitted all the accused persons under Section 210 of the Criminal Procedure Code.
3) The application basically seeks to have the appeal reinstated so that it can be heard on the merits. The gist of the application is that:- The Appellant complied with the directions given by the court by filing its ROA on 4th April 2024 and serving the Respondents on 5th April 2024; that the Judiciary e-filing system experienced intermittent outages on 4th April 2024 as evidenced by a notice of even date, leading to the ROA not reflecting as filed; that the ROA was automatically merged with the Appellant’s Petition of Appeal filed on 29th January 2024; that the Appellant served the 1st Respondent in person and the 2nd, 3rd and 4th Respondents through the email addresses of their Counsel but they misled this court that they were not served; that the Appellant is keen to prosecute the Appeal and it is in the interest of justice that the same be reinstated and determined on merit, and fixed for hearing on priority basis due to its urgency and that this Application is brought in good faith and without undue delay.
4) The application is supported by the affidavits of prosecution Counsel CHRISTINE MARETE and DAUDI SUTER, sworn on 16th April 2024 and 17th April 2024 respectively who depose that the Applicant lodged the Appeal E001 OF 2024, on 29th January 2024, against the decision of the lower court to acquit the Respondents herein, delivered on 19th January 2024. The matter was mentioned before this court on 30th January 2024, who gave the Appellant 14 days to file and serve the ROA; that on 18th March 2024 the matter came up for mention to confirm compliance with court’s directions. The Applicant cited delay in obtaining the typed proceedings from the lower court. The Applicant asked for more time, which request was acceded to by the court. The matter was then scheduled for mention on 4th April 2024; that the typed proceedings of the lower court were availed to the Applicant on 28th March 2024 enabling the Applicant to compile the ROA.
5) Further, that when the matter was mentioned on 4th April 2024, the Applicant sought the court’s indulgence to file and serve the ROA by close of business, which the court acceded and gave a further mention date of 8th April 2024; that the ROA was uploaded onto the Uadilifu e-filing system by Daudi Suter, a Clerk working in the Anti-Corruption Registry on 4th April 2024 for the purpose of filing on the Judiciary E-filing system. He proceeded to file the hard copy of the ROA the next day on 5th April 2024, and it was duly stamped; that copies of the Record were served on all the Respondent’s Advocate’s through their email addresses save for the Dave Munya Mwangi who was served in person as he was self-representing; that during the mention on 8th April 2024, the Respondents denied having received the ROA; that the court assistant also reported that the ROA did not reflect on the e-filing system, and the Appeal was therefore dismissed.
6) She deposed that upon inquiry from the registry, the Appellant was informed that due to the system hitch on 4th April 2024, the ROA was inadvertently merged with the Petition of Appeal that had been filed on 29th January 2024 and that the Appellant is keen to prosecute the Appeal and that it is in the interest of justice that the same be reinstated.
7) DAUDI SUTER, a court clerk working at the Office of the Director of Public Prosecutions deposed that on 4th April 2024, he uploaded the ROA on the Uadilifu e-filing system for the purpose of filing on the Judiciary e-filing system. He filed a hard copy at the High Court Registry the next day and it was stamped. He then proceeded to serve the Counsel for the Respondents by way of email and the 1st Respondent physically as he is self-representing; that on 8th April 2024, upon learning that the ROA was not reflecting on the e-filing system, he made inquiries with the High Court registry and was informed that the ROA merged with the Petition of Appeal filed on 29th January 2024.
8) The 3rd Respondents opposed the application through his Replying Affidavit dated 10th June 2024. He deposed that after filing the Appeal, the Applicants went to sleep, necessitating one of the Respondents to set the Appeal down for directions; that the directions given by the court had timelines and the Applicant failed to comply and the court dismissed the Appeal. He asserted that the Applicant had not demonstrated good grounds for the court to exercise its discretion in its favour; that it is not in the interest of justice that the Appeal be reopened as litigation must come to an end.
9) The 4th and 5th Respondents opposed the application through a Replying Affidavit sworn by the 5th Respondent on 29th May 2024, where he states that the application is an abuse of the court process as the Applicant has shown no interest in prosecuting the appeal; that the appeal came up for mentions several times but the Applicant failed to appear for most and neglected to issue notices to the Respondents; that the Applicant did not attend the mention on 4th March 2024 and had to be served with a mention notice for 18th March 2024 accompanied with a Penal Notice by Counsel for the 4th and 5th Respondent; that on 18th March 2024, the Applicant appeared and informed court that it was waiting for typed proceedings but did not tender any evidence to demonstrate that it had applied for the proceedings; that on 4th April 2024, the court allowed the Applicant to file and serve the ROA by close of business but by the next mention on 8th April 2024, no ROA could be traced on the e-filing system and there was no physical record on the Court file; that the court migrated to the e-filing system so physical filing of documents should not be entertained; that it was the duty of the Applicant to ensure that the filing of the record was done despite the system hitch; that his advocates were served after the Appeal had been dismissed; that the Respondents shall suffer great prejudice if the Appeal is reinstated as they have been subjected to protracted prosecution for eight years requiring them to travel from the United Kingdom and other European countries, which has affected their business and livelihood and further that the 2nd and 3rd Respondents lost their jobs in public service due to the Anti-corruption matter in the lower court.
10) The Application was canvased by way of written submissions which I have carefully considered and need not reproduce here.
11) This Revision should have been brought within the appeal file where the order for dismissal was made so as to provide continuity of the record. However, I shall overlook that procedural technicality under Article 159(2)(d) of the Constitution and proceed to determine the application on the merits.
12) This court dismissed this appeal on 8th April 2024 for reason that the DPP/Applicant had not complied with the orders of this court directing it to file and serve the ROA within the timeline given. It has however transpired and, this court has confirmed it, that the ROA had been filed on 5th April 2024 well within the timeline given; and that it is only that the same did not reflect on the e-filing portal on the day it was filed as the system had merged it together with the Petition of Appeal which had been filed much earlier on 24th January 2024 something which the ODPP/Applicant cannot be faulted for.
13) As to whether the ROA was served upon Counsel for the Respondents within the timelines given, I note from their submissions that the ROA was not sent to the correct email addresses. Given that the ROA was already on the e-record of the court and a physical copy had been brought to the registry on 5th April 2024 albeit it was not brought to the attention of this court, it would be unjust not to consider this application favourably. The failure to serve the ROA through the correct email addresses can be redressed by way of an order for fresh service which I hereby order to be done within 14 days of this ruling.
14) Accordingly, the appeal be and is hereby reinstated. The same shall be mentioned on 16th September 2024 for directions on the manner of its disposal. As these are criminal proceedings there shall be no order for costs.
Dated, signed and delivered virtually on this 31st day of July 2024.