Hafedi Zubeidi v Director of Public Prosecution & 2 others [2019] KECA 312 (KLR)
The bottom line
#The Court of Appeal refused to pause five criminal cases against a former bank chairman, ruling that disputes about his actual role are questions of evidence for trial, not constitutional petitions.
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 and not frivolous
- 2.Whether, if stay is not granted, the appeal would be rendered nugatory
Key legal issues
#Whether the intended appeal was arguable
The court held the intended appeal was not arguable; the claim that the applicant, as non-executive chairman, was not involved in day-to-day management raised factual questions for the trial court, not determinable on affidavit in a constitutional petition.
The material before the High Court consisted of the applicant's own statements that he was a non-executive chairman uninvolved in daily management. The court found such allegations inherently evidentiary, requiring examination and cross-examination in the criminal trial. A constitutional petition supported by affidavits was not the forum to test evidence, so the judge could not be faulted.
Whether the Githunguri principle on abuse of prosecutorial power justified a stay
The court acknowledged the Githunguri principle remains good law under Article 157(6), but distinguished the facts and held it could not determine allegations of abuse of prosecutorial power at the interlocutory stage.
While the discretion to prosecute, now vested in the DPP by Article 157(6) of the Constitution, must be exercised judiciously and not arbitrarily or oppressively, the facts of Githunguri were distinguishable. The allegations about the applicant's role in the bank could not be resolved at this stage, so the principle did not avail him on the twin tests.
Whether the nugatory limb needed consideration
Having found the appeal not arguable, the court declined to consider the nugatory aspect.
The twin tests under Rule 5(2)(b) are conjunctive; failure on the first limb renders consideration of the second unnecessary. As the applicant failed to demonstrate an arguable appeal, the court did not discuss whether the criminal proceedings would render the appeal nugatory.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy the twin tests: the appeal is arguable and not frivolous, and the appeal will be rendered nugatory if stay is not granted.
- The jurisdiction to stay civil or criminal proceedings is sparingly exercised, only in clear cases of harassment or abuse of process.
- Whether an accused's involvement in the day-to-day management of a company is a matter of evidence to be tested by examination and cross-examination at trial, not determinable on a constitutional petition at an interlocutory stage.
Court orders
#- 1.Application for stay of proceedings in Criminal Cases Nos. 1897 of 2015, 983 of 2018, 984 of 2018, 1109 of 2018 and 1652 of 2018 dismissed
- 2.Costs of the application to abide the outcome of the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi, Constitutional and Human Rights Court
- Consolidated Petition No. 361 of 2017
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (application for stay of proceedings pending intended appeal)
Relief refused
#Stay of proceedings in the five criminal cases pending the hearing and determination of the intended appeal
Applicant failed to demonstrate that the intended appeal is arguable; allegations about his role as non-executive chairman were matters of evidence for the trial court
Costs
Costs of this application shall abide the outcome of the intended appeal.
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.
Accordingly, the applicant has failed to satisfy the court that the intended appeal is arguable, we find that the application lacks merit and is hereby dismissed. Costs of this application shall abide the outcome of the intended appeal.
The jurisdiction to stay a proceeding either of civil or criminal nature before any court is always sparingly exercised. When this Court has done so, it is always in a very clear cases to nip from the bud any attempt to circumvent or use the law to harass an applicant.
Certainly, in our view we cannot fault the Judge for holding that these were matters of evidence to be subjected to court room processes of examination and cross examination.
The Attorney-General is given unfettered discretion to institute and undertake criminal proceedings by section 26 of the constitution but this discretion should be exercised in a judicious way. It should not be exercised arbitrarily, oppressively or contrary to public policy.
Issues in the judgment
#Duplicate/typographical bracket numbering in paragraph marker ("[6] ]") and inconsistent spelling of Githunguri ("Githuguri Case")
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hafedi Zubeidi v Director of Public Prosecution & 2 others [2019] KECA 312 (KLR)", Case Analysis (2019). Civil Application No. 60 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/312/eng@2019-10-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.