Case ID:175454

Oscar Kipchumba Sudi v Ethics and Anti Corruption Commission & 2 others [2021] eKLR

Case Metadata

Case Number:

Civil Application 274 of 2018

Parties:

Oscar Kipchumba Sudi v Ethics and Anti-Corruption Commission, Director of Public Prosecutions, Chief Magistrate’s & Anti-Corruption Court

Date Delivered:

19 May 2021

Case Class:

Civil

Court:

Court of Appeal at Nairobi

Case Action:

Ruling

Judge(s):

Wanjiru Karanja, Milton Stephen Asike-Makhandia, William Ouko

Citation:

Oscar Kipchumba Sudi v Ethics and Anti Corruption Commission & 2 others [2021] eKLR

Case History:

(Being an application for stay of proceedings of the Chief Magistrate Anti-Corruption Court ACC No. 14 of 2016 pending the hearing and determination of an appeal from the judgment of the High Court of Kenya at Nairobi (Ongúndi, J.) delivered on 27th July, 2017 in ACEC No. 11 of 2017)

Court Division:

Civil

County:

Nairobi

History Docket No:

ACEC 11 of 2017

History Judges:

Hedwig Imbosa Ong'udi

History County:

Nairobi

Case Outcome:

Motion dismissed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

IN THE COURT OF APPEAL

AT NAIROBI

(CORAM: OUKO, (P), KARANJA & ASIKE-MAKHANDIA, JJ.A.)

CIVIL APPLICATION NO. 274 OF 2018

BETWEEN

OSCAR KIPCHUMBA SUDI..........................................................................APPLICANT

AND

ETHICS AND ANTI-CORRUPTION COMMISSION.....................1

ST

RESPONDENT

DIRECTOR OF PUBLIC PROSECUTIONS....................................2

ND

RESPONDENT

CHIEF MAGISTRATE’S ANTI-CORRUPTION COURT..............3

RD

RESPONDENT

(Being an application for stay of proceedings of the Chief Magistrate Anti-Corruption

Court ACC No. 14 of 2016 pending the hearing and determination of an appeal

from

the judgment of the High Court of Kenya at Nairobi (Ongúndi, J.)

delivered

on 27

th

July, 2017

in ACEC No. 11 of 2017)

***************************************

RULING OF THE COURT

During the 2013 general elections, the applicant, who was then vying for a Kapseret parliamentary seat, tendered a self-declaration form under the First Schedule of the Leadership and Integrity Act to the Independent Electoral and Boundaries Commission. Of relevance to this application was the disclosure he made regarding his academic qualification which gave rise to investigations of its authenticity by the 1

st

respondent.

Upon completion of its investigations, the 1

st

respondent forwarded a report of its findings to the 2

nd

respondent, who after evaluation of the same commenced criminal proceedings against the applicant in the Chief Magistrate’s Anti- Corruption Court, ACC No. 14 of 2016. The applicant was charged with several offences ranging from forgery of an official document to providing false information.

In turn, the applicant filed a constitutional petition in the High Court, ACEC No. 11 of 2017, seeking

inter alia

, a declaration that his constitutional rights had been violated by the investigations and the subsequent criminal proceedings; compensation for the violation of his constitutional rights; an order of

certiorari

to quash the charges in ACC No. 14 of 2016; and an order of

prohibition

to stop the 2

nd

respondent from instituting any other criminal proceedings in respect of his academic qualification.

Ongúndi, J. in a judgment dated 27

th

July, 2017 found that the applicant had failed to demonstrate how the investigations violated his rights; and further that the 1

st

and 2

nd

respondents acted within the confines of their mandates. With that the learned Judge dismissed the applicant’s petition.

Aggrieved by the above decision, the applicant has by the instant motion urged the Court to stay the proceedings in ACC No. 14 of 2016 pending the hearing and determination of the appeal against the impugned judgment. In his view, the appeal raises arguable issues as demonstrated in the draft memorandum of appeal annexed to the motion; and the appeal would be rendered nugatory should the criminal proceedings be allowed to proceed.

Save for the 1

st

respondent none of the other respondents responded to the motion. Opposing the motion, the 1

st

respondent argued that it lacked merit on the grounds that, the appeal was not arguable; that the appeal would not be rendered nugatory if the order sought is not granted; and that it was in the public interest for the prosecution of the applicant, who was then a state officer, to proceed to its logical conclusion. Furthermore, the trial before the Chief Magistrate’s Court had already commenced wherein 7 out of 14 prosecution witnesses had already testified.

It is settled that our jurisdiction under

Rule 5(2)(b)

of this Court’s Rules, which has been invoked by the motion, is discretionary. However, in order for us to exercise that power, the orders sought thereunder must be issued in relation to the decision or proceedings of a court which is the subject of an intended appeal or appeal to this Court. See

Benson

Khwatenge Wafula vs. Director of Public Prosecutions; Ethics and Anti-Corruption &

2 others (Interested Parties)

[2020] eKLR. In any case, under

Article 164(3)

of the Constitution the Court has jurisdiction to hear only appeals from the High Court and any other court or tribunal. The court envisaged here are not the Magistrates’ courts.

In this case, what the applicant seeks to be stayed are the criminal proceedings, ACC No. 14 of 2016, instituted and pending in the Chief Magistrate’s Court. While it is not lost to us that the applicant had sought to challenge the constitutionality of the said criminal proceedings in the constitutional petition filed in the High Court, the said criminal proceedings are not the subject of the appeal before this Court. It is discernible from the notice of appeal dated 10

th

August, 2017 as well as the draft memorandum of appeal annexed to the motion, that the subject of the appeal is the High Court’s judgment dated 27

th

July, 2017 which dismissed the applicant’s constitutional petition. As such, we have no jurisdiction to stay the criminal proceedings in the Chief Magistrate’s Court.

The applicant, having failed to satisfy the two limbs of

Rule 5(2)(b)

, we accordingly find no merit in the motion dated 24

th

September, 2018. It is hereby dismissed with costs to the 1

st

respondent.

DATED AND DELIVERED AT NAIROBI THIS 19

TH

DAY OF MAY, 2021.

W. OUKO, (P)

..................................

JUDGE OF APPEAL

W. KARANJA

...................................

JUDGE OF APPEAL

ASIKE-MAKHANDIA

...................................

JUDGE OF APPEAL

I certify that this is a true copy of the original.

Signed

DEPUTY REGISTRAR