The Republic VS IDAH ADHIAMBO The Republic VS IDAH ADHIAMBO

RULING.
INTRODUCTION.

By way of a notice of motion dated 9^th December 2023 the applicant seeks leave to file an appeal out of time against the ruling of the Honorable M. NANZUSHI (SPM) delivered on 17^th March 2023.
The application is supported by an affidavit sworn by Judith Ingutia prosecution counsel sworn on 9^th December 2023.
The applicant has annexed letters dated 2^nd May 2023 , 13^th June 2023, 10^th July 2023 , 12^th May 2023, 23^rd November 2023 and 30^th of November 2023 seeking copies of proceedings from the Lower court. The letter dated 30^th November 2023 is by Judith Ingutia on behalf of the DPP whereas the rest of the letters are by Mercy Wanjiru Maina and the firm of KWEW Advocates who were retained by the complainant in this matter.
The applicant has also annexed a copy of the impugned ruling dated 17^th March 2023 a petition of Appeal dated 9^th December 2023 as well as a copy of the charge sheet.
The gist of the applicant’s application is that they were unable copies of the proceedings and ruling in good time to allow them file an appeal. The application was strenuously opposed by counsel for the respondent Mr. Rakoro.

ANALYSIS AND DETERMINATION.

The applicant through Mrs. Musungu prosecution counsel stated that the ODPP was requested by the complainant to file an appeal on this matter. Counsel did not however indicate to the Court when the request for an appeal was made to the DPP and the affidavit in support is silent on that matter as well.
Mrs. Musungu however admitted that the letter requesting for proceedings by the ODPP was sent to on 30^th November 2023. The applicants counsel went further to argue that they could not file the appeal in time because they did not have the ruling as well as the proceedings.
The applicants counsel further relied on the numerous letters done by counsel for the complainant in a bid to show the effort made by the applicant to try and secure the proceedings.
It should be noted that the ruling annexed to tye application is dated 17^th March 2023 the same date that the same was delivered.
The applicant has not explained when this ruling was obtained from court and why an appeal could not be filed within time yet the ruling was ready for collection from the court.’
The applicant has also not explained to this court why the petition of appeal dated 9^th December 2023 could not have been drafted immediately after the ruling and filed in court. I say so because, it cannot be argued that the petition could not be drawn without the benefit of proceedings since the law allows a party under Section 350 of the Criminal Procedure Code to file a petition of appeal immediately after the delivery of the judgment or order appealed against and the same be filed together with the judgment, Ruling or Order appealed against.
The section states;
An appeal shall be made in the form of a petition in writing presented by the appellant or his advocate, and every petition shall (unless the High Court otherwise directs) be accompanied by a copy of the judgment or order appealed against.
A petition of appeal shall be signed, if the appellant is not represented by an advocate, by the appellant, and, if the appellant is represented by an advocate, by the advocate, and shall contain particulars of the matters of law or fact in regard to which the subordinate court appealed from is alleged to have erred, and shall specify an address at which notices or documents connected with the appeal may be served on the appellant or, as the case may be, on his advocate; and the appellant shall not be permitted, at the hearing of the appeal, to rely on a ground of appeal other than those set out in the petition of appeal:

Provided that—

subject to the provisions of paragraph (ii), where, within five days of the date of the judgment or order appealed against, the appellant or his advocate has applied to the subordinate court which passed the judgment or made the order for a copy of the record of the proceedings before that court, and where the appeal is entered within the period of limitation prescribed by section 349 but before receipt by the appellant or his advocate of the copy of the record, the petition of appeal may be amended on notice in writing to the Registrar of the High Court and to the Director of Public Prosecutions and without leave of the High Court, within seven days of the receipt by the appellant or his advocate of the copy of the record applied for;
the provisions of paragraph (i) shall not apply where the petition of appeal is signed by an advocate who represented the appellant in the proceedings before the subordinate court appealed from;

(iii) where a copy of the record of the proceedings before the subordinate court appealed from is applied for by the appellant or his advocate, the date of the receipt thereof by the appellant or his advocate shall be certified to the High Court by the subordinate court, and shall for the purposes of this subsection be deemed to be—
(a) if the copy of the record is delivered otherwise than by post, the date of delivery; and
(b) if the copy of the record is delivered by post, the date on which it is shown, on an advice of the delivery of a registered postal article issued under regulation 37(3) of the East African Postal Regulations, or any provision of law amending or replacing that regulation, to have been delivered, and no such copy of a record shall be delivered by post otherwise than by registered post;
(iv) save as provided in paragraph (i), a petition of appeal may only be amended with the leave of the High Court and on such terms and conditions, whether as to costs or otherwise, as the High Court may see fit to impose;
(v) notice in writing of an application for leave to amend a petition of appeal shall be given to the Registrar of the High Court and to the Attorney-General not less than three clear days, or such shorter

The applicant was represented at the time of the delivery of the ruling. It is a matter of common knowledge that the Republic is represented countrywide by Prosecution counsel and if at all the date of the ruling the state intended to appeal nothing would have been easier than for the prosecutor of the court to immediately apply for certified copies of the proceedings and ruling for purposes of appeal.
The applicant has therefore not explained to the court sufficiently why a petition of appeal could not be immediately filed even without copies of the proceedings since the ruling was available and the appellant would be at liberty to seek to amend the petition upon receipt of the proceedings.
Further, it has been argued for the applicant that the respondent would suffer no prejudice if the application for leave is granted.
The respondent has vehemently opposed the application citing prejudice that would be occasioned to the respondent. The respondent maintains that the delay in filing the appeal and this application is inordinate and inexcusable.
He argues that the applicant has failed to sufficiently reason for delay and therefore the application should be dismissed.
The Supreme Court in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR stated as follows;

“Extension of time being a creature of equity, one can only enjoy it if he acts equitably: he who seeks equity must do equity. Hence, one has to lay a basis that he was not at fault so as to let time to lapse. Extension of time is not a right of a litigant against a court, but a discretionary power of the courts which litigants have to lay a basis where they seek courts to grant it.
The court went further and set out the conditions that must be satisfied before a party can be granted an order for extension of time to file an appeal as hereunder: -

Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court;
A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court
Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis;
Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;
The applicant has not satisfied the conditions set out by the supreme court in applications of this nature. The argument by the applicant that it has an appeal with overwhelming chances of success is certainly a consideration in applications of this nature. At the stage the court concerns itself with establishing the reasonability of the grounds presented by an applicant since the relief sought is an equitable relief and equity abhors indolence.
The application before is a classic case of indolence on the part of the applicant. The applicant seeks to drag the respondent back to court after the lapse of 1 year, 7 months and yet the applicant argues that the respondent will suffer no prejudice.
The position of the applicant if accepted by this court would amount a great travesty of justice.
An accused person must be allowed to benefit from the decision acquitting him of charges without having to live under inherent fear of the reinstitution of charges by the prosecution. In short litigation must come to an end at some point.
The applicant in this case appears to have come to court as a result of pressure from the complainant who through Miss Mwanzia Advocate indicated to the Court that she was dissatisfied with the ruling of the Honorable Magistrate.
It is not proper for the state to seek to mount an appeal solely in a bid to assuage the feelings of a complainant about the loss of his case.
The applicant must live true to the spirit and letter 157 (10& 11) of the constitution which calls upon the director of Public Prosecutions in the exercise of his prosecutorial authority to do so independently and to guard against the abuse of the Court process and act in the best interesst of the administration of justice.
As I conclude I must observe that the magistrate in the impugned Ruling noted the following before ordering the acquittal of the respondent.

“The matter has been in court for 3 years. The complainants had a chance to avail themselves to give their side of the story. The court will not place the accused on defense on account of witnesses with no formal complainant as is required by law. The spouse of a complainant can't be a complainant the same way the spouse of an accused can't be charged in place of an accused. Since the prosecution has called its case. I find that no sufficient evidence has been rendered against the accused, I will give him a benefit of doubt and acquit under S210 CPC”

In view of the foregoing, I find and hold that it would be grossly unfair to subject the respondent to rigors of defending an appeal mounted for what appears to be extraneous reasons on the part of the complainant who has been faulted by the Lower court for failure to appear and testify.
The finding of this court is that the application has no merit and the same is hereby dismissed.
It is so ordered.