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Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Application No. NAI. 339 of 2014· [2014] KECA 298 (KLR)

Andrew Nkiiri Thirinja & 2 others v Director of Public Prosecutions & 1 other

Court of Appeal
17 October 2014
1,561 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to pause a criminal case, confirming that winning only half the test for a stay is not enough.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Nyambuye, G.B.M. Kariuki and Murgor JJ.A) on a Notice of Motion dated 4th July 2013 brought under rule 5(2)(b) of the Court of Appeal Rules by Andrew Nkiiri Thirinja, Newton Kamau Ngethe and Kamau Muchuha, seeking a stay of execution of the judgment of Korir J delivered on 2nd May 2013 in High Court Judicial Review Miscellaneous Application No. 373 of 2010, and a stay of proceedings in the Chief Magistrate's Criminal Case No. 542 of 2010 at Kiambu, in which the applicants faced charges of intent to defraud relating to Mega Microfinance Company Limited. The High Court had dismissed their judicial review application seeking certiorari and prohibition, finding no evidence of malice, breach of natural justice or abuse of power. The respondents did not appear despite service, but the court held that an unopposed application does not automatically succeed: both limbs of the rule 5(2)(b) test - arguability and the nugatory aspect - must be satisfied. While the court found the intended appeal arguable, it held the nugatory limb failed because the High Court made no order capable of being stayed, following Western College of Arts and Applied Sciences v Oranga; a dismissal order cannot be stayed. The court further invoked section 193A of the Criminal Procedure Code, which bars stays of criminal proceedings merely because substantially the same matter is in issue in civil proceedings. The motion was dismissed with costs in the appeal.

Key legal issues

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01

Twin principles for stay under rule 5(2)(b)

Holding

Both arguability and the nugatory aspect must be satisfied; neither alone suffices.

Reasoning

The court restated the settled rule 5(2)(b) test, citing its established precedents. It found the draft memorandum of appeal raised arguable issues but held that arguability alone is insufficient. The nugatory limb failed because the High Court dismissal contained no order requiring or forbidding any act, leaving nothing for the court to stay.

02

Whether a dismissal order can be stayed

Holding

No; a court cannot stay an order that merely dismissed an application.

Reasoning

Following Western College of Arts and Applied Sciences v Oranga, the court reasoned that because the High Court made no positive or prohibitive order against the applicants, there was nothing capable of being stayed. This independently defeated the application even though arguability was conceded.

p. 3
03

Effect of section 193A of the Criminal Procedure Code

Holding

Overlapping civil and criminal proceedings are not a ground for staying criminal proceedings.

Reasoning

The court invoked section 193A of the Criminal Procedure Code, which expressly provides that a matter in issue in criminal proceedings also being in issue in pending civil proceedings shall not be a ground for any stay, prohibition or delay of the criminal proceedings, reinforcing the refusal to halt the Kiambu criminal case.

p. 3

Legal principles established

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  • An applicant under rule 5(2)(b) must satisfy both limbs - arguability of the intended appeal and the nugatory aspect - and satisfying only one is insufficient.
  • A dismissal order cannot be stayed because there is nothing capable of being stayed.
  • An unopposed application does not automatically succeed; the applicant must still establish the twin principles.
  • Pending criminal proceedings are not stayed by reason of substantially the same matter being in issue in civil proceedings.

Court orders

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  1. 1.The Notice of Motion dated 4th July 2013 was dismissed
  2. 2.Costs in the motion shall be in the appeal
On appeal from
High Court of Kenya at Nairobi
JR MSC Application No. 373 of 2010
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Andrew Nkiiri Thirinja & 2 others v Director of Public Prosecutions & 1 other", Case Analysis (2014). Civil Application No. NAI. 339 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/298/eng@2014-10-17

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