In a ruling delivered by Justice Mary Kasango, the court allowed the Director of Public Prosecutions (DPP) to proceed with the appeal though it was filed out of time and is yet to be admitted by the court as required by the Criminal Procedure Code.
While dismissing preliminary objections lodged by Pastor Ng'ang'a and his colleagues seeking, the judge said they should be raised at the final hearing of the criminal appeal.
Pastor Ng'ang'a of Neno Evangelism Centre, alongside his driver Simon Maina Kuria and police officers Christopher Nzilu Nzioka and Patrick Kahindi Baya (Tigoni traffic commandant) wanted the appeal struck out on grounds that it was incompetent. They argued that the appeal was filed outside the 14-day timeline provided by the law.
The court heard that the DPP lodged the appeal on May 22, 2018 while the ruling he is challenging was delivered on May 4 by Limuru Chief Magistrate Godfrey Oduor.
They were acquitted from charges of giving false witness and causing the death of Mercy Njeri through dangerous driving on July 26, 2015 at Manguo on the Nairobi-Naivasha highway.
The Range Rover car which caused an accident that left one person, Mercy Njeri, dead.
Photo credit: File
Mercy Njeri, the woman who died in the road accident.
Photo credit: File
Pastor Ng'ang'a was charged with killing the woman by dangerous driving while Mr Kuria and the two police officers were charged with trying to defeat justice through an attempted cover up.
Justice Kasango noted that there is controversy regarding when the trial court delivered its ruling and the point at which the appeal was lodged. This is because the trial court acquitted the accused persons on May 4, 2018 and proceeded to give reasons for their acquittal on May 7, 2018.
Judge Kasango noted that the DPP is also yet to make an application urging court to admit the appeal.
"The court cannot on its own motion, as suggested by the State, admit an appeal under Section 349 Criminal Procedure Code if such prayer is not sought before it. If the court was to do so it would constantly have to second guess what orders the parties before it require. That is unacceptable in law," said Justice Kasango.
She said a criminal appeal statutorily should be filed within 14 days from the date of the order or sentence being appealed and the computation of those 14 days must be calculated in compliance to section 57 of interpretation and General Provision Act.
"The court is empowered by Section 349 Criminal Procedure Code to admit an appeal filed out of time, that is an appeal already filed and in existence but to do so the court has to be moved by an application," said Justice Kasango.
She stated that had Pastor Ng'ang'a and his colleagues waited to raise their objections at the final hearing of the appeal, they would have succeeded in seeking dismissal of the appeal.
"...because the appeal as it is now it is not an appeal because it has not been admitted by this Court out of time. The window or opportunity for the DPP to seek the appeal to be admitted out of time as provided under Section 349 Criminal Procedure Code remains open until the hearing of the appeal," ruled justice Kasango.
"A preliminary objection must be based on pure point of law which has been pleaded and which if argued may dispose of the suit."
