Republic & 1 other v The Kenya Anti-corruption Commission & 2 others

The Court's discretion under Rule 5(2)(b) is unfettered but must be exercised judicially. It is guided by settled principles: the appeal must not be frivolous (it must be arguable) and, if successful, its results must not be rendered nugatory if stay is refused. Both limbs must be demonstrated; satisfying one alone is insufficient. Reliance Bank and Githunguri were cited as authority.

The Court can grant stay of execution, injunction, or stay of further proceedings pending appeal. Because the superior court merely dismissed the judicial review application, there is no decree to execute and no occasion for an injunction. A stay of the criminal proceedings before the magistrate was therefore the only potentially available relief, but the Court noted it cannot issue a stay where the civil proceedings in the superior court no longer exist.

The majority, having raised the jurisdictional issue suo motu, concluded that whether the rule applies to criminal proceedings depends on what is asked and how the Court is approached, and granted the stay. The dissent construed 'stay of further proceedings' ejusdem generis with 'in any civil proceedings', holding the jurisdiction restricted to civil decisions of the superior court and that the applicant had not invoked the Court's inherent jurisdiction under Rule 1(3).

The majority accepted that without a stay the applicant would undergo an expensive trial and possible imprisonment, denying him liberty. The dissent held the nugatory test inappropriate for a stay of prosecution, since halting prosecutions offends public interest; the suspect's protection lies in the right to a fair trial under section 77 of the Constitution, and the grounds relied on could be raised as defences at trial.