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Court of AppealDismissedCriminal Appeal (Application) No. 57 of 2013· [2014] KECA 806 (KLR)

Manilal Jamnandas Ramji Gohil v Director of Public Prosecution [2014] KECA 806 (KLR)

Court of Appeal
28 February 2014
PKP. Kihara KariukiDavid Kenani MaragaD.K. MaragaWilliam OukoW. Ouko
2,226 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal ruled that criminal trials can only be paused in rare exceptional cases, and dismissed an attempt to delay one.

What this practically means

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Executive summary

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The applicant, an accused in Kibera Chief Magistrate's Court Criminal Case No. 2601 of 2009 charged with threatening to murder, had failed in the High Court before Achode, J. to obtain a declaration that his prosecution was unconstitutional and an order barring the trial. He filed a notice of appeal and then moved the Court of Appeal by notice of motion dated 4th December 2013 seeking a stay of the trial proceedings pending the application and the intended appeal. The respondent, through the investigating officer's affidavit and counsel, opposed, arguing inordinate delay in filing both the application and the appeal, competence of the trial, and the motion's failure to cite any provision of law. The Court agreed the applicant was culpable of inordinate delay of about one and a half years. On competence, it found the motion violated Rule 42(1) for failing to state grounds, but affirmed the Court's inherent jurisdiction to grant interim orders while stressing that good practice requires invoking the relevant provisions. On jurisdiction, it held that Rule 5(2)(a) targets convicted persons or warrants of distress, neither applicable, and that stay of subordinate court criminal proceedings is available only on appeal from a High Court decision, depending on the prayers and circumstances. Applying the settled twin tests of arguability and nugatory-ness, the Court found no memorandum of appeal exhibited, the allegations of malice and harassment triable issues best raised as defences, no indication of an unfair trial, and no demonstration that success in the appeal would be rendered nugatory. The application was dismissed with costs to the respondent.

Key legal issues

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01

Competence of a motion that fails to state its grounds or cite the enabling provision

Holding

The application violated Rule 42(1) by not stating grounds or the provision invoked, though the Court retains inherent jurisdiction; parties should nonetheless invoke the relevant provisions.

Reasoning

Rule 42(1) requires all applications by motion to state grounds. The applicant's motion cited no provision, though counsel invoked the Court's inherent jurisdiction. The Court affirmed that inherent jurisdiction exists, as in Equity Bank v West Link Mbo, but held it is limited to orders necessary for the ends of justice or to prevent abuse of process, and good practice demands citing the relevant provisions.

p. 3
02

Jurisdiction to stay criminal proceedings under Rule 5

Holding

Rule 5(2)(a) applies to convicted persons or suspension of warrants of distress, neither of which applied; stay of subordinate court criminal proceedings lies only on appeal from a High Court decision, and depends on the prayers sought and circumstances.

Reasoning

Relying on Jayendra Khimji Malde and Tunoi, JA's lead judgment in Republic v Kenya Anti-Corruption Commission, the Court held the applicant had not been convicted nor was a warrant of distress in issue, and that the power to stay criminal proceedings in the magistrate's court pending appeal depends on the prayers sought and the particular circumstances of each case.

p. 3
03

Arguability and nugatory-ness of the intended appeal

Holding

The intended appeal was not arguable and would not be rendered nugatory; allegations of malice and harassment could be raised as defences at trial.

Reasoning

The applicant filed no memorandum of appeal showing grievances against the High Court findings. Allegations of malice and harassment by police and the complainant could only be proven on evidence at trial. The High Court had permitted him to raise constitutional issues in the subordinate court, and no evidence indicated he would not receive a fair trial, so the nugatory limb also failed.

p. 4

Legal principles established

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  • An order staying criminal proceedings is granted only in the most exceptional of circumstances.
  • An applicant for stay must satisfy the twin tests of an arguable appeal and that the appeal would be rendered nugatory absent stay.
  • The Court of Appeal may grant stay of criminal proceedings in a subordinate court only on appeal arising from a decision of the High Court, and applications should invoke the relevant provisions of law conferring jurisdiction.

Court orders

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  1. 1.The application is dismissed with costs to the respondent

Authorities

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Legislation

  • Penal Codesection 223(1)
  • Court of Appeal RulesRule 42(1)
  • Court of Appeal RulesRule 5(2)(a) and Rule 5(2)(b)
  • Court of Appeal RulesRule 59
  • The Constitution of KenyaArticle 157(6)(a)
  • The retired Constitutionsection 26(3)(a)

Cases cited (6)

  • Equity Bank Limited v West Link Mbo Limited
    [2013] eKLR
  • Goddy Mwakio & Another v Republic
    [2011] eKLR
  • Jayendra Khimji Malde & 2 Others v Republic, Criminal Application No. Nai 14 of 2010
    (unreported)
  • Republic v The Kenya Anti-Corruption Commission & 2 Others, Civil Application No. Nai 51 of 2008
    (unreported)
  • Trust Bank Limited and Another v Investech Bank Limited & 3 Others, Civil Application No. Nai 258 and 315 of 1999
    (unreported)
  • Berkeley North Market & Others v Attorney General & Others, Civil Application No. Nai. 74 of 2005
    (unreported)
On appeal from
High Court of Kenya at Nairobi
H.C. Misc. Cr. Appl. No. 42 of 2011
Jurisdiction invoked
Rule 5 of the Court of Appeal Rules and the inherent jurisdiction of the Court

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, "Manilal Jamnandas Ramji Gohil v Director of Public Prosecution [2014] KECA 806 (KLR)", Case Analysis (2014). Criminal Appeal (Application) No. 57 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/806/eng@2014-02-28

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