Oscar Kipchumba Sudi v Ethics & Anti-Corruption Commission & 2 others [2018] KECA 222 (KLR)

Court of Appeal of Kenya

26 October 2018

RNR.N. Nambuye

1,349 words in judgment

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The bottom line

The Court of Appeal refused to fast-track Oscar Sudi's attempt to halt his corruption trial, ruling his one-year delay disqualified the application from urgency.

What this practically means

Executive summary

This is a single-Judge ruling of the Court of Appeal at Nairobi by Nambuye, JA on a request to certify as urgent an application under Rule 5(2)(b) of the Court of Appeal Rules seeking stay of criminal proceedings in Chief Magistrate's Anti-Corruption Court ACC No. 14 of 2016 pending an intended appeal. The applicant's constitutional petition challenging his prosecution had been dismissed by Ong'udi, J of the High Court on 27th July 2017, lapsing stay orders and exposing him to resumed criminal hearings. The application for certification of urgency was first declined on 24th September 2018; the applicant invoked Rule 47(5) to seek an inter-partes hearing on certification. Counsel for the respondents opposed, citing inordinate unexplained delay of over a year since the impugned judgment and alleging the application was brought in bad faith to forestall the criminal hearing. After considering submissions, the court held there was no sufficient reason to recall the earlier refusal: the applicant had delayed over a year, did not need typed proceedings to file the application, and the application was lodged only days before fixed hearing dates. The court took judicial notice that criminal prosecutions are lengthy processes and that the applicant could file his intended appeal and have it fast-tracked under the Court's practice directions. The order declining certification was affirmed. This is an interlocutory single-Judge ruling, not a decision of the full Court, and creates no binding precedent.

Key legal issues

Whether the refusal to certify the application as urgent should be recalled upon inter-partes hearing under Rule 47(5)

Holding

The refusal to certify the application as urgent was affirmed; no sufficient reasons were shown to vary the earlier order of 24th September 2018.

Reasoning

The court took account of the applicant's delay of over one year since the impugned judgment, the fact that no typed proceedings were needed to file the application, the lapsing of stay orders upon dismissal of the High Court petition, and the filing of the application only days before fixed hearing dates. It also took judicial notice that a criminal prosecution is a lengthy process, so the applicant would not be prejudiced and could file and fast-track the intended appeal under relevant practice directions.

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Legal principles established

A refusal by a Judge of the Court of Appeal to certify an application as urgent under Rule 47(5) is not subject to a reference to the full Court, but the applicant may apply informally for the matter to be placed before a single Judge for hearing inter-partes; the single Judge may affirm the refusal.
Inordinate and unexplained delay in seeking urgency certification, particularly where the applicant did not need typed proceedings to file the application, justifies refusal to certify an application as urgent.

Court orders

1.The order of 24th September 2018 declining to certify the application as urgent is affirmed

Authorities

Legislation

Court of Appeal RulesRule 5(2)(b)
Court of Appeal RulesRule 47(5)
Court of Appeal RulesRule 55
Constitution of Kenya, 2010Article 50

On appeal from: High Court of Kenya at Nairobi, Anti-Corruption and Economic Crime Division; Anti-Corruption and Economic Crime Division Constitutional Petition No. 11 of 2017
Jurisdiction invoked: Rule 47(5) of the Court of Appeal Rules (application for certification of urgency before a single Judge)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Oscar Kipchumba Sudi v Ethics & Anti-Corruption Commission & 2 others [2018] KECA 222 (KLR)", Case Analysis (2018). Civil Application No. 274 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/222/eng@2018-10-26

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