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Supreme CourtDismissedPetition 4 (E005) of 2022

Dande & 3 others v Director of Public Prosecutions & 2 others

Supreme Court of Kenya
19 May 2022
Philomena Mbete MwiluP.M. MwiluSmokin Charles WanjalaS.C. WanjalaNjoki Susanna NdunguNjoki NdunguIsaac LenaolaI. LenaolaWilliam OukoW. Ouko
1,583 words in judgment
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·~6 min to read original · ~4 min brief

The bottom line

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Supreme Court cannot stop magistrate court cases; its stay power only covers Court of Appeal orders.

What this practically means

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The Supreme Court ruled it has no power to halt criminal proceedings in a Magistrate's Court. Its authority to grant stays or orders only applies to decisions or cases already in the Court of Appeal. This means if you want to stop a magistrate court case, you cannot ask the Supreme Court directly—you must first go through the Court of Appeal.

Executive summary

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This ruling by the Supreme Court of Kenya (Deputy Chief Justice Mwilu and four other justices) dismissed an application by Edwin Harold Dayan Dande and three others seeking a conservatory order to stay criminal proceedings pending in the Nairobi Chief Magistrates Court. The applicants had filed a petition challenging a Court of Appeal decision and sought the stay pending the hearing of their appeal. The court first addressed a preliminary objection on jurisdiction, finding that the appeal properly invoked Article 163(4)(a) of the Constitution because the Court of Appeal had dealt with the interpretation of Article 157 concerning prosecutorial powers. However, on the merits of the stay application, the court held that its power under section 21(2) of the Supreme Court Act to grant interlocutory orders is limited to staying orders or proceedings of the Court of Appeal, not those of the Magistrate's Court. The court distinguished its prior decisions where it had granted stays, noting those were stays of Court of Appeal decisions. The court also criticized the parties for filing responses after the deadline set by the Deputy Registrar, stating it did not consider those irregularly filed submissions. The application was dismissed with costs to the 1st and 3rd respondents.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Supreme Court has jurisdiction to grant a stay of criminal proceedings pending in the Magistrate's Court.

Key legal issues

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01

Whether the Supreme Court has jurisdiction to grant a stay of criminal proceedings pending in the Magistrate's Court.

Holding

The Supreme Court lacks jurisdiction to stay proceedings in the Magistrate's Court; its power to grant interlocutory orders is limited to staying orders or proceedings of the Court of Appeal.

Reasoning

The court reasoned that under article 163(4) of the Constitution and sections 15, 16, and 17 of the Supreme Court Act, the Supreme Court only entertains appeals from the Court of Appeal. Therefore, its ancillary power under section 21(2) to grant interlocutory orders can only be exercised in relation to the Court of Appeal's decisions or proceedings, not those of subordinate courts. The court distinguished its prior decisions where it had granted stays, noting those stays were of Court of Appeal decisions, not magistrate's court proceedings.

p. 5

Legal principles established

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  • Supreme Court's stay power under section 21(2) of the Supreme Court Act is limited to Court of Appeal orders or proceedings.
  • The Supreme Court cannot interfere with cases in subordinate courts like the Magistrate's Court.
  • Appeals to the Supreme Court must come from the Court of Appeal, not directly from lower courts.
  • A party seeking to stop magistrate court proceedings must apply to the Court of Appeal, not the Supreme Court.
  • The Supreme Court will not consider submissions filed after the Deputy Registrar's deadline.

Court orders

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  1. 1.The applicants' notice of motion dated March 9, 2022 fails and is hereby dismissed.
  2. 2.The 1st and 3rd respondents shall have costs of this application.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Philomena Mbete Mwilu
P.M. MwiluDCJ
Currently serving
majority

Wrote the judgment

Smokin Charles Wanjala
S.C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
William Ouko
W. OukoSCJ
Currently serving
majority
On appeal from
Court of Appeal of Kenya
Jurisdiction invoked
Article 163(4)(a) of the Constitution

Relief refused

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Stay of criminal proceedings in Nairobi Chief Magistrates Criminal Case No 1735 of 2016

The Supreme Court can only grant a stay of a decree or order of the Court of Appeal or stay of further proceedings in the Court of Appeal, not of proceedings pending in the Magistrate's Court.

p. 5

Costs

The 1st and 3rd respondents shall have costs of this application.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

it is fairly elementary that this court can only grant an order of stay of a decree or order of the Court of Appeal or stay of further proceedings in the Court of Appeal but not of proceedings pending hearing in the Magistrate's Court, as sought in this application
p. 5 Jurisdiction of the Supreme Court to grant stay of proceedings in subordinate courts
The 1st and 3rd respondents shall have costs of this application.
p. 6 Costs order

Key timeline

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2022-03-09
Applicants filed notice of motion seeking stay of criminal proceedings in Nairobi Chief Magistrates Court.
Ruling date
Supreme Court dismissed the application, holding it lacked jurisdiction to stay magistrate court proceedings.

Practical implications

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For lawyers

Limit Supreme Court stay applications

When advising clients facing criminal proceedings in magistrate courts, do not file stay applications directly at the Supreme Court. Instead, seek a stay from the Court of Appeal if an appeal is pending there. The Supreme Court's ancillary powers under section 21(2) only attach to its appellate jurisdiction over Court of Appeal decisions.

For businesses

Know the right court for stays

If your business is involved in a criminal case at a magistrate court and you want to pause proceedings while appealing, go to the Court of Appeal—not the Supreme Court. The Supreme Court cannot intervene in lower court cases. This saves time and legal costs by avoiding wrong filings.

For individuals

Don't bypass the Court of Appeal

If you are a defendant in a magistrate court criminal case and believe the case should be stopped, you cannot ask the Supreme Court directly. You must first appeal to the Court of Appeal and request a stay there. The Supreme Court only handles appeals from the Court of Appeal.

Frequently asked questions

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Can the Supreme Court stop my criminal case in a Kenyan magistrate court?+

No. The Supreme Court ruled it has no power to stay proceedings in a magistrate court. Its authority to grant stays is limited to orders or cases already in the Court of Appeal. You must apply to the Court of Appeal instead.

What is the Supreme Court's jurisdiction over magistrate court cases in Kenya?+

The Supreme Court only hears appeals from the Court of Appeal, not directly from magistrate courts. It cannot issue orders to stop magistrate court proceedings. This was confirmed in Edwin Harold Dayan Dande v DPP.

How do I get a stay of criminal proceedings in a Kenyan magistrate court?+

You must first appeal to the Court of Appeal and request a stay there. The Supreme Court cannot grant a stay for magistrate court cases. File your application in the Court of Appeal, not the Supreme Court.

What does section 21(2) of the Supreme Court Act mean for Kenyan litigants?+

Section 21(2) allows the Supreme Court to grant interim orders, but only to stay a Court of Appeal decision or proceedings in the Court of Appeal. It does not apply to magistrate court cases. This was clarified in the Dande case.

Later judgments citing this (13)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Dande & 3 others v Director of Public Prosecutions & 2 others", Case Analysis (2022). Petition 4 (E005) of 2022. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2022/23/eng@2022-05-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.