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)
The bottom line
#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
#Executive summary
#Key legal issues
#Arguability of the intended appeal against the finding of res judicata
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.
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.
Whether the appeal would be rendered nugatory without a stay
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.
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.
Legal principles established
#- 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
#- 1.The application for stay of proceedings pending appeal is dismissed with costs to the respondent and the interested party
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.