1.Before me is a Notice of Motion dated 18th May 2023 filed by Florence Nzilani Mulinge through counsel Mwinzi & Associates Advocates.
2.The application is grounded on Article 22, 23(1), (2), (3) of the Constitution of Kenya 2010 and Rule 3(8), 4, 13 and 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013 and seeks the following orders:-1.(Spent).2.(Spent).3.That there be a stay of proceedings in Criminal Case No. E461 of 2022 Voi Law Court pending hearing and determination of ELC Case No. E27 of 2022 Voi Law Court.4.That such further orders do issue as the court deems fit in the interest of justice.
3.The application has grounds on the face of the Notice of Motion that the applicant is the accused in the criminal case while Philip Kioko Kalii is the defendant in the ELC case; that the subject matter is the same land Taita Taveta/maungu Bughuta S. Scheme/654; and that the two cases should not proceed concurrently before different Magistrates.
4.The application was filed with a supporting affidavit sworn by Florence Nzilani Mulinge on 18th May 2023, annexing several documents including the charge sheet dated 21st July 2022 and the plaint in the ELC case dated 2nd December 2022 and filed on 6th December 2022.
5.The application is opposed through a replying affidavit sworn on 29th June 2023 by Carren Krubo Ondeyo a Prosecuting Counsel in the Office of Director of Public Prosecutions, wherein it is deponed that the Director of Public Prosecutions is legally exercising constitutional powers under Article 157 of the Constitution and the criminal case should thus not be stayed, as there is no legal justification for so doing.
6.The application was canvassed through written submissions. In this regard, I have perused and considered the submissions filed by Mwinzi & Associates Advocates for the applicant as well as the submissions filed by the Director of Public Prosecutions. Both sides relied on decided court cases.
7.This court has powers to suspend or stay proceedings in the Magistrate’s court in criminal matters. That is discretionary power exercisable under this court’s supervisory jurisdiction, applies to all subordinate courts.
8.The exercise of that discretionary power however, is to serve the best interest of justice for all contesting parties.
9.In the present case, the criminal proceedings in Voi Magistrate’s Criminal Case No. E461 of 2022 were commenced in July 2022, while the ELC Magistrate’s Case E027 of 2022 was commenced on 6th December 2022 almost five (5) months down the line, which is not in dispute.
10.It cannot thus be said that the criminal case herein, was commenced to scuttle an existing or pending the case. I therefore find that there is no justification to stay the pending criminal proceedings in an earlier case, because of an ELC case which filed almost five months later.
11.As such, I find no merits in the application. I thus dismiss the application and decline to grant any of the prayers sought. Any interim orders issued herein are hereby vacated.