Republic v Kenya Anti-Corruption Commission & 2 others [2009] KECA 387 (KLR)

The Court restated the settled principles from Reliance Bank and Githunguri: the discretion under rule 5(2)(b) is unfettered but must be exercised judicially. The first limb is that the appeal is not frivolous; the second is that the appeal, if successful, would be rendered nugatory. Both limbs must be demonstrated; satisfying only one is insufficient.

Tunoi JA noted prior 'somewhat conflicting decisions' and held that whether the rule applies to criminal proceedings depends on the prayers sought and the particular circumstances of each case, the point having been raised suo motu. Githinji JA, construing the rule ejusdem generis, held that 'stay of further proceedings' refers only to continuation of civil proceedings pending in the superior court, and the jurisdiction is derived solely from the lodging of a notice of appeal against a superior court decision.

The applicant's grounds - that the charge violated his immunity under the Local Government Act and that the prosecution was actuated by malice and oppression - were accepted as arguable. On the nugatory limb, the majority reasoned that without a stay the applicant would undergo an expensive trial, possible conviction and imprisonment, denying him liberty and rendering the appeal nugatory. The dissent regarded injustice, not nugatory, as the appropriate test for a stay of prosecution and found none.