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Court of AppealDismissedCivil Application 142 of 2012· [2013] KECA 375 (KLR)

Joseph Mburu Gitau & another v Principle Magistrate's Court at Nairobi & another [2013] KECA 375 (KLR)

Court of Appeal of Kenya
20 March 2013
EGE. M. GithinjiPKP. O. KiageFSF. Sichale
1,486 words in judgment
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The bottom line

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The Court of Appeal dismissed an attempt to pause a criminal trial, holding the High Court's order never blocked the accused from using judicial review documents in their defence.

What this practically means

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Executive summary

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The applicants, charged in the Chief Magistrate's Criminal Case No. 1733 of 2008 with forgery and conspiracy offences relating to land parcel LR 209/10610 in South C, Nairobi, sought stay of a High Court order and of the criminal proceedings pending an intended appeal. The High Court (Warsame, J.) had, in a judicial review application filed by the applicants, discharged interim stay orders and directed that the criminal trial proceed 'with no reference to this judicial review application.' The applicants argued that the order barred them from referring to documents, pleadings and evidence in the judicial review application, effectively crippling their defence; the trial magistrate had adopted that restrictive interpretation, and the State and both counsel before the Court of Appeal agreed it was erroneous. The Court held that, read as a whole, the High Court never determined the judicial review application but left it in abeyance, merely discharging the temporary stay so the criminal trial could proceed as if no review application were pending. The order did not forbid the applicants from adducing evidence or referring to prior proceedings, so there was no basis for a stay. The Court further noted the applicants participated in the trial without objection and only applied 16 months later, after the trial magistrate's erroneous interpretation and an order for trial de novo following the magistrate's promotion; the presiding magistrate in the re-trial would not be bound by that interpretation. The unexplained inordinate delay also disentitled the applicants to the Court's discretion. The Rule 5(2)(b) application was dismissed with costs to the respondent.

Key legal issues

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01

Construction of the High Court order that the criminal trial proceed 'with no reference to this judicial review application'

Holding

The order did not dismiss the judicial review application nor restrict the applicants' evidence at trial; it simply directed the trial to continue while the judicial review application remained in abeyance

Reasoning

Read as a whole, the High Court never determined the judicial review application; it discharged temporary stay orders and directed the criminal trial to proceed. The contested phrase, in context, means the trial court should proceed as if no judicial review application were pending. It did not forbid reference to the evidence, pleadings or proceedings in the review application, so the applicants' feared denial of a fair trial was unfounded.

p. 3
02

Whether stay of the High Court order and of the criminal proceedings should issue under Rule 5(2)(b)

Holding

The application was dismissed because the order sought to be stayed did not bear the meaning the applicants ascribed to it, and the application was brought after an unexplained inordinate delay

Reasoning

Since the High Court neither considered the merits of the judicial review application nor dismissed it for want of prosecution, and did not restrict the applicants' evidence at trial, there was nothing to stay. Both counsel agreed the trial magistrate's restrictive interpretation was erroneous, and the presiding magistrate in the re-trial would not be bound by that erroneous interpretation. The 16-month delay, unexplained, also disentitled the applicants to discretionary relief.

p. 3

Legal principles established

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  • An order that a criminal trial proceed 'with no reference to' a pending judicial review application does not bar an accused from referring to pleadings, evidence or proceedings filed in that judicial review application in mounting a defence; it only directs the trial to proceed as if no judicial review application were pending
  • An unexplained inordinate delay in bringing an application under Rule 5(2)(b) disentitles the applicant to the exercise of the Court's discretion

Court orders

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  1. 1.The application for stay of execution and stay of further proceedings is dismissed
  2. 2.Costs of the application awarded to the respondent

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Penal Codesection 357(a)
  • Penal Codesection 317
On appeal from
High Court of Kenya at Nairobi
HC. MISC. NO. 95 OF 2010
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (application for stay pending intended appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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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, "Joseph Mburu Gitau & another v Principle Magistrate's Court at Nairobi & another [2013] KECA 375 (KLR)", Case Analysis (2013). Civil Application 142 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/375/eng@2013-03-20

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