David Kipruto Chingi & another v Director of Public Prosecutions & 2 others [2016] KECA 593 (KLR)
The bottom line
#The Court of Appeal refused to halt corruption prosecutions, ruling that you cannot 'stay' a dismissal because there is nothing to enforce.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the intended appeal is arguable under the twin principles of Rule 5(2)(b)
- 2.Whether the intended appeal would be rendered nugatory if stay of execution and conservatory orders are not granted
- 3.Whether stay of execution can be granted in respect of a negative order dismissing a judicial review application
- 4.Whether this Court can stay criminal proceedings pending appeal
Key legal issues
#Whether the application for stay of execution of a negative order is maintainable
Stay of execution cannot be granted where the intended appeal is against a negative order dismissing a judicial review application, as there is nothing to execute.
The ruling of the High Court dismissed the applicants' judicial review petition for certiorari and prohibition. No positive order was made in favour of the respondents capable of execution. The court relies on Devani v Joseph Ngindari and Western College of Arts & Applied Sciences v Ornaga to hold that it has no jurisdiction to stay an unenforceable order, and such relief can only follow hearing of the appeal.
Whether the intended appeal would be rendered nugatory if criminal proceedings are not stayed
The appeal would not be rendered nugatory because the trial magistrate's court has competence to consider constitutional defences, and an aggrieved accused retains remedies including damages for unfair trial.
The court adopts the Supreme Court dictum in Peter O. Ngoge that the chain of courts up to the Court of Appeal has the professional competence to resolve matters of technical complexity, and the Uwe Meixner dictum that the trial court is best equipped to deal with the quality and sufficiency of evidence. Following Helmuth Rame, an appeal is not nugatory where criminal proceedings continue, as unfair trial carries a damages remedy.
Whether the arguability threshold was met
The court found the intended appeal arguable, holding that it was arguable whether Section 138 of the Public Procurement and Disposal Act and Articles 75(2)(d) and 236 protect the applicants from prosecution and whether EACC may investigate outside Chapter Six.
Despite finding arguability, the court dismissed the application because the nugatory limb failed and the stay sought was of a negative order. Arguability alone does not entitle an applicant to relief under Rule 5(2)(b); both twin principles must be satisfied.
Legal principles established
#- Stay of execution cannot be granted under Rule 5(2)(b) where the intended appeal is against a negative order
- The twin guiding principles for relief under Rule 5(2)(b) are that the intended appeal is arguable and that it would be rendered nugatory absent the orders sought
- An intended appeal is not rendered nugatory merely because criminal proceedings are not stayed, since the trial court is competent to resolve constitutional issues and a remedy in damages exists for unfair trial
Court orders
#- 1.The Notice of Motion dated 24th February 2016 is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya, Constitutional and Judicial Review Division
- Judicial Review Misc. Appl. Nos. 375 of 2013 and 362 of 2013 as consolidated with Jud. Rev. Appl. Nos. 363 of 2013 and 405 of 2013
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Stay of execution of the ruling of Lenaola, J. dismissing the judicial review application
The order appealed against is a negative order incapable of execution
Injunction and conservatory orders restraining continuation of Anti-Corruption Cases Nos. 12 and 18 of 2013
The intended appeal would not be rendered nugatory without the stay; the trial court is competent to resolve the issues and a remedy in damages exists for unfair trial
Costs
The Notice of Motion dated 24th February 2016 is dismissed with costs to the respondents
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.
This Court has often times stated that stay of execution cannot be granted when the intended appeal is against a negative order.
For the applicant to succeed, he must satisfy the twin guiding principles that the intended appeal is arguable; it is not frivolous and that unless a stay or injunction is granted, the appeal or the intended appeal, if successful, would be rendered nugatory
In totality, we are of the view that the intended appeal shall not be rendered nugatory if stay of proceedings and conservatory orders are not granted. The present application seeks to stay a negative order which we cannot do. Accordingly, we find that the Notice of Motion dated 24th February 2016 has no merit and is hereby dismissed with costs.
Issues in the judgment
#The judgment inconsistently cites 'Section 35 of the Anti-Corruption and Economic Crimes Act' as repealed by the applicants and 'Section 35 of the Ethics and Anti-Corruption Act' in submissions, and the respondents contend it was never repealed; the court does not resolve the statutory identity or repeal status.
The grounds in the Motion refer to Article 75 (2) (a) while the submissions and holding refer to Article 75 (2) (d), an internal inconsistency in the constitutional provision relied on.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "David Kipruto Chingi & another v Director of Public Prosecutions & 2 others [2016] KECA 593 (KLR)", Case Analysis (2016). Civil Application No. 45 of 2016 (UR 34/2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/593/eng@2016-05-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.