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Court of AppealDismissedCriminal Application No. 7 of 2015 (UR 6/2015)· [2016] KECA 699 (KLR)

John Njenga Kamau v Republic [2016] KECA 699 (KLR)

Court of Appeal
11 March 2016
AVAlnashir VisramWKW. KaranjaGKG. B. M. Kariuki
1,108 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 refused to pause a 90-day compensation order because winning on 'arguable appeal' alone is not enough.

What this practically means

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Executive summary

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The applicant, convicted in the Chief Magistrate's Court of obtaining Kshs.1,175,000 by false pretences contrary to section 313 of the Penal Code, was sentenced to three years' probation with an order to refund the amount, which he undertook to pay at Kshs.35,000 per month. On appeal to the High Court, he sought stay of execution under section 356 of the Criminal Procedure Code; Kimaru, J. dismissed that application on 8th October 2015 and directed payment of the full amount within 90 days, failing which the prosecution could seek review of the non-custodial sentence. The applicant then moved the Court of Appeal under Rule 5(2)(a) for stay of that ruling pending appeal, contending that the Judge lacked jurisdiction to vary the trial court's sentence and that the appeal would be rendered nugatory. The Court restated the twin principles governing such applications - arguability and nugatory effect - and held that whether the Judge could reduce the repayment period under section 356(1) was an arguable point. However, on the nugatory limb it found the applicant had not defaulted on his installments, had not deposed on affidavit to inability to pay the lump sum, and had produced no evidence that the complainant could not refund monies paid if the appeal succeeded. Having established only one of two adjunctive principles, the applicant failed, and the application was dismissed with no costs order recorded.

Key legal issues

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01

Whether the intended appeal against the High Court ruling under section 356 of the Criminal Procedure Code was arguable

Holding

Yes - whether the Judge could reduce the repayment period under section 356(1) raises an arguable point

Reasoning

The applicant argued the Judge varied the sentence by reducing the repayment term from three years to 90 days without jurisdiction under section 356(1). Without delving into the merits, the Court found this raised an issue fit for argument on appeal.

p. 2
02

Whether the appeal would be rendered nugatory absent stay

Holding

No - the nugatory principle was not established

Reasoning

The applicant had not defaulted on his monthly payments and did not depose on affidavit that he could not pay the lump sum; the assertion was made only from the bar. There was also no evidence the complainant could not refund monies paid if the appeal succeeded.

p. 2
03

The final disposal of the application

Holding

The application was dismissed in its entirety

Reasoning

Having established only one of the two adjunctive principles, the Court declined to exercise its discretion in the applicant's favour and dismissed the application, leaving the High Court ruling intact.

p. 2

Legal principles established

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  • An applicant under Rule 5(2)(a) must satisfy the twin prerequisites that the intended appeal is arguable and that, if stay is not granted, the appeal would be rendered nugatory; failure to establish either limb is fatal.
  • An arguable appeal need not be one that will succeed; it suffices that it raises an issue that should be argued before the Court.

Court orders

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  1. 1.The application for stay of execution pending the hearing and determination of the appeal is dismissed

Authorities

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Legislation

  • Penal Codesection 313
  • Criminal Procedure Codesection 356
  • Criminal Procedure Codesection 356(1)
  • Court of Appeal RulesRule 5(2)(a)

Cases cited (2)

  • R -vs- The Kenya Anti-Corruption Commission & 2 Others
    [2009] eKLR
  • Helmuth Rame -vs- R
    (2015) eKLR
On appeal from
High Court of Kenya at Nairobi
Misc. Criminal Appl. No. 355 of 2015
Jurisdiction invoked
Rule 5(2)(a) 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, "John Njenga Kamau v Republic [2016] KECA 699 (KLR)", Case Analysis (2016). Criminal Application No. 7 of 2015 (UR 6/2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/699/eng@2016-03-11

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