Michael Sistu Mwaura Kamau v Director of Public Prosecutions & another [2018] KECA 487 (KLR)

The Court distinguished the considerations applicable under Rules 5(2)(a) and 5(2)(b), holding that the twin arguability and nugatory-principles apply only to civil applications under 5(2)(b). A party seeking a stay of execution or an injunction in civil proceedings must move under 5(2)(b), while a party in criminal proceedings is confined to bail or suspension of a warrant under 5(2)(a). The applicant's application was brought and argued as if anchored on 5(2)(b), rendering it incompetent.

By asking the Court to stay the orders of the High Court or issue conservatory orders, the applicant presumed the High Court had made positive orders. In fact the learned Judge had only rejected the invitation to revise the orders of the Chief Magistrate, finding no error on the face of the record and holding that the discharge-versus-acquittal question lay in appeal, not revision. Such rejection is not a positive order and cannot be stayed.

The Court held that the application sought relief the Court could not grant: prohibiting the respondents from investigating, arresting and charging the applicant when that was not the question before the High Court. The Court also noted that its appellate jurisdiction runs from the High Court, courts of equal status and tribunals prescribed by Parliament, not from the Magistrates' Court. Accordingly, the application was dismissed with costs to abide the appeal.