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Court of AppealDismissedCivil Application No. 22 of 2017 (UR 13/2017)· [2017] KECA 11 (KLR)

Julius Otieno Polo & another v Director of Public Prosecutions & 7 others [2017] KECA 11 (KLR)

Court of Appeal
20 July 2017
DMD.K. MusingaSKS. Gatembu KairuAMA.K. Murgor
1,953 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 confirmed it cannot delay criminal prosecutions pending appeal, so the applicants must face their corruption charges.

What this practically means

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Executive summary

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The applicants, Homa Bay County public officers facing corruption charges over the irregular award of a Moi Stadium refurbishment tender, had obtained a High Court conservatory order prohibiting their prosecution. On 23 February 2017 Cherere, J dismissed their consolidated petitions, and they filed a notice of appeal and this application under sections 3A and 3B of the Appellate Jurisdiction Act and rule 5(2) of the Court of Appeal Rules, seeking stay of the judgment and a stay of the taking of pleas in Kisumu Chief Magistrates Court Criminal Case No. 5 of 2014. The DPP and the EACC opposed, the EACC arguing that the Court had no jurisdiction under rule 5(2)(b) to stay criminal proceedings and that a negative order could not be stayed. The Court first addressed jurisdiction, applying the Owners of the Motor Vessel 'Lilian S' principle that jurisdiction is everything. Holding that the application, though styled civil, concerned criminal proceedings and was therefore governed by rule 5(2)(a), the Court - following Goddy Mwakio v Republic - held that rule confers only power to admit an appellant to bail or suspend a warrant of distress, neither of which was sought. It further held, following Western College of Arts & Applied Sciences v Orange, that the dismissal of the petition was a negative order incapable of being stayed. In the alternative, the Court found the appeal arguable but not nugatory, since the trial with 19 prosecution witnesses would not conclude before the appeal. The application was dismissed in its entirety with no order as to costs.

Key legal issues

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Jurisdiction of the Court of Appeal under rule 5(2)(a) in criminal proceedings

Holding

Rule 5(2)(a) confers only two powers in criminal matters: release of an appellant on bail and suspension of a warrant of distress; neither stay of proceedings nor stay of taking of plea falls within it.

Reasoning

Although brought as a civil application, the orders sought pertained to criminal proceedings, engaging rule 5(2)(a) rather than 5(2)(b). Relying on Goddy Mwakio v Republic, the Court held that rule 5(2)(a) is confined to bail and suspension of warrants of distress, and the applicants had neither invoked the Court's inherent jurisdiction nor sought any order within the rule's scope.

p. 3
02

Stay of a negative order

Holding

A dismissal, being a negative order, is incapable of being stayed.

Reasoning

The High Court had dismissed the petition seeking to prohibit prosecution; it issued no positive order. Following Western College of Arts & Applied Sciences v Orange, the Court agreed with counsel that a negative order cannot be stayed, which independently defeated the application even before considering the nugatory-appeal limb.

p. 3
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Whether the intended appeal would be rendered nugatory

Holding

The appeal would not be rendered nugatory because the criminal trial, with 19 prosecution witnesses, was improbable to conclude before the appeal was determined.

Reasoning

Even if the Court disregarded rule 5(2)(a) and applied rule 5(2)(b) or its inherent jurisdiction, the second limb of the rule 5(2) threshold must be satisfied. The Court found the appeal arguable but accepted the EACC's position that the trial would outlast the appeal, so no irreparable nugatory consequence would flow from allowing plea-taking.

Legal principles established

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  • The Court of Appeal has no jurisdiction under rule 5(2)(a) of the Court of Appeal Rules to stay criminal proceedings or the taking of a plea; that rule permits only release on bail or suspension of a warrant of distress in criminal matters.
  • A negative order, such as the dismissal of a petition, cannot be stayed.

Court orders

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  1. 1.Application dismissed in its entirety
  2. 2.No order as to costs

Authorities

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Legislation

  • Appellate Jurisdiction Actsection 3A
  • Appellate Jurisdiction Actsection 3B
  • Court of Appeal Rules, 2010rule 5(2)(a)
  • Court of Appeal Rules, 2010rule 5(2)(b)
  • Court of Appeal Rules, 2010rule 59
  • Court of Appeal Rules, 2010rule 75

Cases cited (4)

  • GODDY MWAKIO & ANOTHER V REPUBLIC
    [2011] eKLR
  • DAVID KIPRUTO CHINGA & ANOTHER V DPP & 3 OTHERS
    [2016] eKLR
  • OWNERS OF THE MOTOR VESSEL "LILIAN S" V CALTEX OIL (KENYA) LTD
    [1989] KLR 1
  • WESTERN COLLEGE OF ARTS & APPLIED SCIENCES V ORANGE & ANOTHER
    [1976] KLR 63
On appeal from
High Court of Kenya at Kisumu
HC Petition No. 15, 16 & 17 of 2014 (Consolidated)
Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act and rule 5(2) of the Court of Appeal Rules, 2010

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, "Julius Otieno Polo & another v Director of Public Prosecutions & 7 others [2017] KECA 11 (KLR)", Case Analysis (2017). Civil Application No. 22 of 2017 (UR 13/2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/11/eng@2017-07-20

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