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Court of AppealDismissedCivil Application No. NAI. 199 of 2015· [2015] KECA 211 (KLR)

George James Kang’ethe & Patrick Kang’ethe Njuguna v Director of Public Prosecutions & Chief Magistrates Court Milimani Law Courts (Civil Application 199 of 2015) (Civ) [2015] KECA 211 (KLR)

Court of Appeal
20 November 2015
1,597 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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The Court of Appeal refused to stop a criminal prosecution, holding that a prior court case on the same issue barred the applicants' second challenge.

What this practically means

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Executive summary

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The applicants, charged in Nairobi Chief Magistrate's Criminal Case No. 744 of 2014 with six counts of fraudulent acquisition of land, sought a stay of those proceedings under Rule 5(2)(b) of the Court of Appeal Rules pending an intended appeal against Korir, J.'s decision of 10 July 2015. In the judicial review application the High Court had upheld a preliminary objection that the challenge to the prosecution was res judicata, having been canvassed in Constitutional Petition No. 298 of 2013, in which Achode, J. had on 14 May 2014 dismissed a petition seeking declarations that any prosecution would be a nullity. The applicants contended that the two applications sought different remedies at different stages of the prosecution process. John Karanja Warui, the complainant in the underlying land dispute, was joined as an interested party by consent. The Court of Appeal applied the established two-limb Rule 5(2)(b) test. On arguability, it held that although different remedies were pleaded, both applications questioned the legal foundation of the charges and the DPP's power to prosecute, so the appeal against the res judicata finding was not arguable on solid grounds. On nugatory-ness, it reasoned that prosecution exists to achieve the constitutional policy that suspects go through due process, that prosecution is not primarily intended to secure a conviction, and that the applicants would have a remedy in damages for malicious prosecution if the appeal eventually succeeded. The application was dismissed with costs to the respondent and the interested party.

Key legal issues

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01

Arguability of the intended appeal against the finding of res judicata

Holding

The appeal was not arguable on solid grounds because both prior applications questioned the legal foundation of the charges and the DPP's power to prosecute.

Reasoning

The court compared the constitutional petition (No. 298 of 2013) and the judicial review application (No. 155 of 2015). Although the applicants argued different remedies were sought at different stages, the court found that in both they were questioning the legality of the charges and the DPP's exercise of prosecutorial power. Achode, J. had found no unconstitutional conduct, and Korir, J. had correctly held the second application res judicata and an abuse of process.

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02

Whether the appeal would be rendered nugatory without a stay

Holding

The appeal would not be rendered nugatory because continuing prosecution achieves constitutional policy, and an aggrieved accused has a remedy in damages for malicious prosecution.

Reasoning

The court reasoned that prosecution is not primarily aimed at securing a conviction but at subjecting suspects to due process. If the appeal ultimately succeeded, the judicial review would be heard on the merits; and even if an unsuccessful prosecution followed, the constitutional policy would have been achieved and the applicants could sue in damages for prosecution without reasonable and probable cause.

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Legal principles established

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  • To succeed on a Rule 5(2)(b) application, an applicant must demonstrate that the intended appeal is arguable and that the appeal, if successful, would be rendered nugatory unless stay is granted.
  • Criminal prosecution serves the constitutional policy that those suspected on reasonable grounds of committing crimes should go through due process, being convicted if guilty and released if innocent; prosecution is not primarily intended to secure a conviction.

Court orders

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  1. 1.The application for stay of proceedings pending appeal is dismissed with costs to the respondent and the interested party

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
On appeal from
High Court of Kenya at Nairobi
Judicial Review Misc. Civil Appln. No. 155 of 2015
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, "George James Kang’ethe & Patrick Kang’ethe Njuguna v Director of Public Prosecutions & Chief Magistrates Court Milimani Law Courts (Civil Application 199 of 2015)  (Civ) [2015] KECA 211 (KLR)", Case Analysis (2015). Civil Application No. NAI. 199 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/211/eng@2015-11-20

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