Director of Public Prosecutions v Manyeso (Application E041 of 2023) [2024] KESC 5 (KLR) (Civ) (1 March 2024) (Ruling)

Director of Public Prosecutions v Manyeso (Application E041 of 2023) [2024] KESC 5 (KLR) (Civ) (1 March 2024) (Ruling) Neutral citation: [2024] KESC 5 (KLR) Republic of Kenya In the Supreme Court of Kenya Civil Application E041 of 2023 MK Koome, CJ, PM Mwilu, DCJ & VP, MK Ibrahim, I Lenaola & W Ouko, SCJJ March 1, 2024 Between Director of Public Prosecutions Applicant and Julius Kitsao Manyeso Respondent (Being application for extension of time to file an appeal against the judgment of the Court of Appeal (Nyamweya, Lesiit & Odunga, JJ. A.) dated 7th July, 2023 in Criminal Appeal No.12 of 2021) Delay in filing an appeal on grounds that there was no substantive Director of Public Prosecution is adequate. _The Director of Public Prosecutions (DPP) sought an extension of time to file an appeal against the Court of Appeal’s judgment in Criminal Appeal No. 12 of 2021, which had substituted the respondent’s life imprisonment sentence with 40 years imprisonment for defilement. The delay of 36 days was attributed to the absence of a substantive DPP. The Supreme Court granted the extension, ruling that the explanation for the delay was plausible and reasonable. However, the Court declined to deem the annexed petition as duly filed due to unpaid filing fees._ Reported by John Ribia **_Civil Practice and Procedure_** _– appeals – appeals to the Supreme Court – appeals raising matters of constitutional interpretation – delay in filing an appeal on account of lack of a substantive office holder of office - whether the delay in filing an appeal before the Supreme Court on grounds that there was no substantive Director of Public Prosecution was adequate - whether the issues raised in the appeal revolving around the constitutionality of the life imprisonment were matters of constitutional interpretation warranting an appeal before the Supreme Court - Constitution of Kenya, 2020, article 163(4)(a); Interpretation And General Provisions Act, (cap 2), section 57(d); Sexual Offences Act (cap 63A) section 8(1); Supreme Court Rules (cap 9B sub leg) rule 15(2) ; 33._**_Constitutional Law_** _– Director of Public Prosecution (DPP) – role and mandate – role of the Deputy Directors of Public Prosecution – role in the absence of the DPP - whether the Deputy Directors of Public Prosecution could have discharged the functions/ powers/ duties of the Director of Public Prosecutions in the absence of a substantive holder of the said office - Office of The Director of Public Prosecutions Act, (cap 6B), section 12(1)._ Brief facts The applicant sought an extension of time to file an appeal against a Court of Appeal judgment that reduced the respondent's life sentence for defilement under the Sexual Offences Act to 40 years. The delay was attributed to the absence of a substantive Director of Public Prosecutions (DPP) between June and September 2023, during which critical decisions on the appeal were pending. Issues 1. Whether the delay in filing an appeal before the Supreme Court on grounds that there was no substantive Director of Public Prosecution was adequate. 2. Whether the Deputy Directors of Public Prosecution could have discharged the Director of Public Prosecutions powers/duties in the absence of a substantive holder of the said office. 3. Whether the issues raised in the appeal resolving around the constitutionality of the life imprisonment were matters of constitutional interpretation warranting an appeal before the Supreme Court. Held 1. By dint of rules 15(1)(b) and 38(1)(a) of the Supreme Court Rules and Section 57(d) of the Interpretation and General Provisions Act the applicant should have filed the petition/appeal within thirty (30) days of filing the Notice of Appeal, that was, on or before September 4, 2023. The Motion at hand was filed on October 11 2023, the delay translates to 36 days which the applicant attributed to the absence of a substantive holder of the office of the DPP. 2. There was no substantive holder of the office of DPP from June, 2023 to September 25, 2023 . Section 12(1) of the ODDP Act provided for appointment of Deputy Directors to assist the DPP in the execution of his/her duties under the Constitution and/or in any other written law. Section 12(2) thereof stipulated that, the Deputy Directors shall exercise the powers and functions subject to superintendence, directions and control of the Director. The respondent’s argument that the Deputy Directors could have discharged the DPP’s powers/duties in the absence of a substantive holder of the said office could not dent the applicant’s case. 3. The applicant had adduced a plausible explanation for the delay in filing the petition/appeal up to when the current DPP was sworn in office. The explanation was satisfactory for the delay between the assumption of office by the DPP. The delay of 17 days was reasonable in order to allow the DPP to appraise himself with the matter and issue directions thereof. 4. The grounds of appeal raised therein warranted the Supreme Court’s consideration. In particular, whether the Court of Appeal erred in entertaining a constitutional issue that had not been raised at the trial court and the High Court; whether the Court of Appeal had misapplied the Supreme Court’s decision and subsequent directions in _Muruatetu & Another v Republic; Katiba Institute & 4 Others (Amicus Curiae), SC Petition No. 15 & 16 of 2015; _[2021] KESC 31 (KLR) in finding the sentence of life imprisonment unconstitutional; and whether the Court of Appeal usurped the legislative powers of Parliament in substituting the sentence of life imprisonment prescribed under section 8(2) of the Sexual Offences Act with 40 years imprisonment. 5. The applicant had satisfied the requisite principles to warrant the Supreme Court to exercise its discretion by extending time within which it could file its petition/appeal. However, the applicant’s prayer urging the court to deem the petition annexed to the Motion as duly filed was untenable since the filing fees for the same have not been paid. _Application allowed only to the extent that leave was granted to the applicant to file and serve the intended petition/appeal within 30 days of the date of the instant ruling._ Orders _Costs of the Motion to abide in the outcome of the intended appeal._ Citations **Cases**** _Kenya_** 1. _Muruatetu & another v Republic; Katiba Institute & 4 others (Amicus Curiae)_ Petition 15 & 16 of 2015; [2021] KESC 31 (KLR) - (Followed) 2. _Rai, Jasbir & 3 others v Tarlochan Rai & 4 others_ Civil Application 307 of 2003; [2007] KECA 21 (KLR) - (Followed) 3. _Salat Nicholas Kiptoo Arap Korir v Independent Electoral and Boundaries Commission & 7 others_ Application 16 of 2014; [2014] KESC 12 (KLR) - (Followed) **Statutes**** _Kenya_** 1. Constitution of Kenya articles 157(1); 163(4)(a)(b)—(Interpreted) 2. Interpretation And General Provisions Act (cap 2) section 57(d) — (Interpreted) 3. Office of The Director of Public Prosecutions Act (cap 6B) section 12(1) — (Interpreted) 4. Sexual Offences Act (cap 63A) section 8(1)(2) — (Interpreted) 5. Supreme Court Rules, 2020 (cap 9B Sub Leg) rules 15(1)(b)(2); 33, 38(1)(a)— (Interpreted) Advocates _Ms. Fredah Mwanza_(Director of Public Prosecutions) for the applicant _Mr. Byron Menezes_ for the respondent Ruling 1.Cognisant that Julius Kitsao Manyeso, the respondent, was convicted of the offence of defilement under section 8(1) of the [Sexual Offences Act](/akn/ke/act/2006/3), and sentenced to life imprisonment pursuant to section 8(3) thereof in the Chief Magistrate’s Court at Malindi; that his appeal to the High Court, Criminal Appeal No 60 of 2018, challenging the said conviction and sentence was dismissed by a judgment dated May 14, 2022; and his second appeal to the Court of Appeal, Criminal Appeal No 12 of 2021, was allowed by a judgment dated July 7, 2023 to the extent that the sentence of life imprisonment was declared unconstitutional and substituted with a sentence of 40 years imprisonment; and 2.Upon perusing the notice of motion before this court dated October 6, 2023 and lodged on October 11, 2023 by the applicant under article 163(4)(a) of the [Constitution](/akn/ke/act/2010/constitution) and rules 15(2) & 33 of the [Supreme Court Rules, 2020](https://new.kenyalaw.org/akn/ke/act/ln/2020/101/eng@2022-12-31) seeking the following orders:“1.That the applicant be granted leave to file the petition/appeal out of time.2.That this honourable court be pleased to admit and deem the applicant’s attached intended petition to have been duly filed.3.That this court grants such other orders as it may deem fit and just.” 3.Further considering the affidavit in support of the motion sworn by Henry Achochi, a prosecution counsel, on October 4, 2023 and the applicant’s submissions dated October 9, 2023, all of which are to the effect that; following the delivery of the Court of Appeal judgment, the applicant filed a notice of appeal on July 21, 2023 intimating its intention to challenge the impugned judgment; that a team of prosecution counsel drawn from various counties was constituted on July 27, 2023 to review the impugned judgment and give recommendations on a possible appeal to this court; that by the time the team completed its mandate, there was no substantive holder of the office of the Director of Public Prosecution (DPP) to review the recommendations and give directions on the way forward; that it was not until September 25, 2023 that the current holder of the office of the DPP was sworn in office and he thereafter gave directions on filing of the intended appeal; and 4.Additionally, the applicant deposed in the said affidavit that the delay was not intentional; that the intended appeal raises salient constitutional issues that are of public importance; that this court has jurisdiction to deal with the intended appeal and settle jurisprudential questions/issues that have been raised by the superior courts’ decisions on matters relating to section 8(1) & (2) of the Sexual Offences Act; and that the applicant has met the principles for extension of time as delineated by this court in [Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others](/akn/ke/judgment/kesc/2014/12), SC Applic No 16 of 2014; [2014] eKLR; and 5.Taking Into Account the respondent’s submissions dated January 25, 2024 and filed on January 26, 2024 to the effect that the office of the Director of Public Prosecutions created under article 157(1) of the [Constitution](/akn/ke/act/2010/constitution) is a constitutional office and ought to run smoothly in the absence of a substantive holder of the office of the DPP; that section 12(1) of the [Office of the Director of Public Prosecutions (ODPP) Act](/akn/ke/act/2013/2) provides for the appointment of Deputy Directors to assist the DPP in execution of his/her duties and/or functions under the Constitution; that at the material time there were Deputy Directors in office and as such, there was no void in leadership; that the applicant has not offered a satisfactory explanation for the delay; that the applicant should also seek certification with respect to the issues it claims are of public importance; that the intended appeal is an affront to the respondent’s right to certainty in the criminal process and finality of the judicial process; and that the applicant has not sufficiently made out a prima facie case to warrant the orders sought; and 6.Bearing in mind that this court is clothed with unfettered discretion under rule 15(2) of the [Supreme Court Rules](https://new.kenyalaw.org/akn/ke/act/ln/2020/101/eng@2022-12-31) to extend the time for filing an appeal; and that the principles that govern the exercise of such discretion as delineated in the [Nick Salat](/akn/ke/judgment/kesc/2014/12) case are as follows:“…1.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;2.A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;3.Whether the court should exercise the discretion to extend time, is a consideration to be made on a case-to-case basis;4.Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;5.Whether there will be any prejudice suffered by the respondents if the extension is granted;6.Whether the application has been brought without undue delay; and7.Whether in certain cases, like election petitions, public interest should be a consideration for extending time.”; and 7.Upon deliberations on the motion and the rival submissions, we opine as follows:i.It is common ground that the applicant filed a notice of appeal on July 21, 2023 evincing its intention to challenge the impugned judgment delivered on the same day.ii.From the motion and the affidavit in support thereof it is clear that the applicant intends to file an appeal to this court as of right pursuant to article 163(4)(a) of the [Constitution](/akn/ke/act/2010/constitution). In point of fact, the petition sought to be filed, a copy of which is annexed to the motion, indicates as much. What is more, the applicant urged that the intended appeal raises constitutional issues that are of public importance, which the respondent has unfortunately erroneously misconstrued to mean that the applicant should seek certification under article 163(4)(b) of the [Constitution](/akn/ke/act/2010/constitution) with regard to the issues of public importance.iii.It follows therefore that by dint of rule 38(1)(a) of the [Supreme Court Rules](https://new.kenyalaw.org/akn/ke/act/ln/2020/101/eng@2022-12-31), the applicant should have filed the petition/appeal within thirty (30) days of filing the notice of appeal, that is, on or before September 4, 2023. (See rule 15(1)(b) of the Supreme Court Rules and section 57(d) of the [Interpretation and General Provisions Act](/akn/ke/act/1956/39). Taking into account the fact that the motion at hand was filed on October 11, 2023, the delay translates to 36 days which the applicant attributed to the absence of a substantive holder of the office of the DPP.iv.It is not in dispute that from June, 2023 to September 25, 2023 there was no substantive holder of the office of DPP until the current DPP was sworn in office. We appreciate that section 12 (1) of the [ODDP Act](/akn/ke/act/2013/2) provides for appointment of Deputy Directors to assist the DPP in the execution of his/her duties under the Constitution and/or in any other written law. Likewise, we cannot help but note that section 12(2) thereof stipulates that, ‘The Deputy Directors shall exercise the powers and functions subject to superintendence, directions and control of the Director’. In the circumstances, the respondent’s argument that the Deputy Directors could have discharged the DPP’s powers/duties in the absence of a substantive holder of the said office cannot dent the applicant’s case.v.We find that the applicant has adduced a plausible explanation for the delay in filing the petition/appeal up to when the current DPP was sworn in office. Equally, we find that the explanation is satisfactory for the delay between the assumption of office by the DPP on September 25, 2023 and filing of the Motion at hand on October 11, 2023. The delay of 17 days, in our view, was reasonable in order to allow the DPP to appraise himself with the matter and issue directions thereof.vi.Moreover, without pronouncing ourselves on the merits of the intended petition/appeal, we find that grounds of appeal raised therein warrant this court’s consideration. In particular, whether the Court of Appeal erred in entertaining a constitutional issue that had not been raised at the trial court and the High Court; whether the Court of Appeal had misapplied this court’s decision and subsequent directions in [Muruatetu & another v Republic; Katiba Institute & 4 others (Amicus Curiae)](/akn/ke/judgment/kesc/2021/31), SC Petition No 15 & 16 of 2015; [2021] KESC 31 (KLR) in finding the sentence of life imprisonment unconstitutional; and whether the Court of Appeal usurped the legislative powers of parliament in substituting the sentence of life imprisonment prescribed under section 8(2) of the [Sexual Offences Act](/akn/ke/act/2006/3) with 40 years imprisonment.vii.Based on the foregoing, the applicant has satisfied the requisite principles to warrant this court to exercise its discretion by extending time within which it can file its petition/appeal. However, the applicant’s prayer urging us to deem the petition annexed to the motion as duly filed is untenable since the filing fees for the same have not been paid.viii.Taking into account the foregoing and this court’s decision in [Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others](/akn/ke/judgment/keca/2007/21), SC Petition No 4 of 2012; [2014] eKLR, we deem it just to order that costs of the Motion shall abide the outcome of the intended appeal. 8.Consequently and for the reasons afore-stated, we make the following Orders:i.The notice of motion dated October 6, 2023 and filed on October 11, 2023 is hereby allowed only to the extent that leave is hereby granted to the applicant to file and serve the intended petition/appeal within 30 days of the date of this ruling.ii.Costs of the motion shall abide the outcome of the intended appeal.It is so ordered. **DATED AND DELIVERED AT NAIROBI THIS 1ST DAY OF MARCH, 2024.****..................................****M. K. KOOME****CHIEF JUSTICE & PRESIDENT OF THE SUPREME COURT****..................................****P.M. MWILU****DEPUTY CHIEF JUSTICE & COURT VICE PRESIDENT OF THE SUPREME COURT ****..................................****M.K. IBRAHIM****JUSTICE OF THE SUPREME COURT****..................................****I. LENAOLA****JUSTICE OF THE SUPREME COURT****..................................****W. OUKO****JUSTICE OF THE SUPREME COURT** I certify that this is a true copy of the original**REGISTRAR****SUPREME COURT OF KENYA** *[eKLR]: electronic Kenya Law Reports