Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCriminal Appeal (Application) No. 129 of 2016

Kilonzo v Republic (Criminal Appeal 129 of 2016) [2016] KECA 19 (KLR)

Court of Appeal
9 December 2016
GKG. B. M. KariukiFAF. AzangalalaFSF. Sichale
3,795 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

#

The Court of Appeal confirmed it cannot stop a magistrate's court criminal case using rule 5(2)(a), leaving Kethi Kilonzo's trial to continue.

What this practically means

#

Executive summary

#
This is a ruling of the Court of Appeal at Nairobi (Kariuki, Azangalala and Sichale, JJ.A.) on a notice of motion by Diana Kethi Kilonzo seeking a stay of proceedings in Nairobi Chief Magistrate's Court Criminal Case No. 1325 of 2013, in which she faces charges of stealing, handling stolen goods and uttering a false document, pending an intended appeal against a High Court ruling (Ngenye-Macharia, J., dated 12 November 2015 in H.C. Cr. Revision No. 47 of 2014). The High Court had declined to revise a trial magistrate's decision that the prosecution could not be compelled to supply documents not in its custody and upon which it did not intend to rely. The applicant invoked rules 1(2), 5(2)(a) and 42(1) of the Court of Appeal Rules. The court first considered jurisdiction, applying the Lillian S principle, and held that rule 5(2)(a) confers no power to stay criminal proceedings before a magistrate's court; the High Court decision appealed from made no positive order and there were no High Court proceedings capable of being stayed. However, the court confirmed that under its inherent jurisdiction, criminal proceedings in a subordinate court may be stayed pending an appeal where the prosecution is actuated by malice, constitutes abuse of process, is instituted for an improper motive such as harassment, or derogates from constitutional rights - a jurisdiction sparingly exercised. On the merits, the court doubted the arguability of the intended appeal, holding that the Constitution does not compel disclosure of documents a party does not possess and will not rely upon, noting the documents were held by third parties including the IEBC. On nugatory-ness, the court found the Article 50 fair-trial safeguards, the availability of appeals and compensation, and applications against third parties made a stay unnecessary. The application was dismissed with costs in the intended appeal.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Court of Appeal has jurisdiction under rule 5(2)(a) of its Rules to stay criminal proceedings before a Chief Magistrate's Court pending an intended appeal
  2. 2.Whether the intended appeal is arguable
  3. 3.Whether the intended appeal, if successful, would be rendered nugatory unless a stay is granted

Key legal issues

#
01

Jurisdiction under rule 5(2)(a) to stay criminal proceedings before a subordinate court

Holding

Rule 5(2)(a) does not confer jurisdiction to stay criminal proceedings in a magistrate's court; the sub-rule relates only to release on bail or suspension of a warrant of distress. The applicant improperly invoked it.

Reasoning

The court examined the text of rules 5(2)(a) and (b) and held that stay of execution, injunction or stay of further proceedings language belongs to sub-rule (b). Since the notice of appeal was against a High Court revision decision in which the Judge made no positive order, and no proceedings remained pending before the High Court, there was nothing capable of being stayed. Criminal proceedings before the magistrate's court could not be stayed under rule 5(2)(a).

p. 4
02

Scope of the Court's inherent jurisdiction to stay criminal proceedings

Holding

Stay of criminal proceedings in a subordinate court can issue, under the Court's inherent jurisdiction pending an appeal from the High Court, only on demonstration of malice, abuse of process, improper motive such as harassment, or prosecution in derogation of constitutional rights.

Reasoning

Relying on its prior decisions in Mary Ngechi Ngethe and Eng. Michael Sistu Mwaura Kamau, the court confirmed that this exceptional jurisdiction is exercised sparingly, where trumped-up charges, prosecutions not undertaken according to law, or prosecutions actuated by malice and meant to harass are demonstrated. Those circumstances were not shown here, as the applicant did not invoke them.

p. 5
03

Arguability of the intended appeal on the scope of prosecutorial disclosure

Holding

The intended appeal was doubtful in arguability: the court entertained doubt that the Constitution compels a party, even the State, to disclose evidence not in its custody and upon which it does not intend to rely.

Reasoning

The court identified the simple controversy as whether the respondent can be compelled to disclose evidence it does not have and will not rely upon. The trial magistrate answered in the negative and the High Court agreed. The court doubted that the Constitution envisages compelling disclosure of that which a party does not have. That finding alone was sufficient to dispose of the application.

p. 6
04

Nugatory aspect of the application

Holding

Even if the appeal were arguable, it would not be rendered nugatory if stay were refused, given the fair trial safeguards under Article 50, the availability of subsequent appeals, claims for compensation, and applications against third parties such as the IEBC.

Reasoning

The court noted the applicant would enjoy the presumption of innocence and all Article 50(2) protections, could challenge inadmissible evidence at trial and on appeal, could seek appropriate applications in the trial court regarding documents held by third parties including the IEBC, and could claim compensation for any constitutional breach. Damages being a sufficient remedy, stay would not normally be granted.

p. 6

Legal principles established

#
  • Rule 5(2)(a) of the Court of Appeal Rules confers no jurisdiction on the Court to stay criminal proceedings pending before a Chief Magistrate's Court.
  • Under its inherent jurisdiction, pending appeals from the High Court, the Court of Appeal may stay subordinate court criminal proceedings only where the prosecution is actuated by malice, amounts to abuse of process, is instituted for an improper motive such as harassment, or is in derogation of the applicant's constitutional rights; the jurisdiction is sparingly exercised.
  • The Constitution does not envisage compelling any party, including the State, to disclose evidence which it does not have in its custody and upon which it does not intend to rely.
  • An applicant under rule 5(2)(b) must demonstrate that the appeal is arguable and that, if successful, it would be rendered nugatory unless the stay is granted; where damages would be a sufficient remedy, stay will not normally be granted.

Court orders

#
  1. 1.The application for stay of proceedings pending the intended appeal was dismissed
  2. 2.Costs of the application were awarded to the respondent, to be in the cause of the intended appeal

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

GK
majority
FA
majority
FS
majority
On appeal from
High Court of Kenya at Nairobi
H.C. Cr. Revision No. 47 of 2014
Jurisdiction invoked
Rules 1(2), 5(2)(a) and 42(1) of the Court of Appeal Rules, together with the Court's inherent jurisdiction

Relief refused

#

Stay of proceedings in Nairobi Chief Magistrate's Court Criminal Case No. 1325 of 2013 pending the intended appeal

Rule 5(2)(a) does not confer jurisdiction to stay criminal proceedings in a subordinate court; the intended appeal was doubtful in arguability and would not be rendered nugatory without a stay

p. 4

Costs

The application was dismissed with costs being in the intended appeal

Quotable passages

#

Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Mr. Ondari was plainly right that this Court has no jurisdiction to grant stay of criminal proceedings pending before the Chief Magistrate's Court under rule 5(2) (a) of our Rules.
p. 4Jurisdiction - rule 5(2)(a) and criminal proceedings in subordinate courts
The subordinate court criminal proceedings will also be stayed if it is demonstrated that the prosecution is instituted in derogation of the applicant's constitutional rights. The jurisdiction is sparingly used and only where the justice of the matter so demands.
p. 5Inherent jurisdiction to stay criminal proceedings - exceptional circumstances
We have our doubts that however modern democratic or progressive our Constitution is, it envisages compelling any party even if that party has the awesome power of State to disclose that which it does not have.
p. 6Scope of prosecutorial disclosure obligations
We have said enough to show that this application cannot succeed. It is dismissed with costs being in the intended appeal.
p. 6Final orders - dismissal of the application

Issues in the judgment

#
minor

The judgment inconsistently renders the name of the same cited case, appearing as 'Manilal, Jamnadas Ramji -v- D.P.P.' and 'Manilal Jamnades Gohil -v- D.P.P.' with the same citation (Cr. Application No. 57 of 2013 (UR)).

minor

The judgment inconsistently renders the cited case 'Rerkely Northmarket' and the applicant's counsel is also referred to as 'learned DPPO' in one passage while elsewhere described as appearing for the Republic.

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (4)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Kilonzo v Republic (Criminal Appeal 129 of 2016) [2016] KECA 19 (KLR)", Case Analysis (2016). Criminal Appeal (Application) No. 129 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/19/eng@2016-12-09

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