Wafula v Prosecutions; Anti-Corruption & 2 others (Interested Parties) (Civil Appeal 388 of 2018) [2020] KECA 462 (KLR)

Rule 5(2)(b) expressly authorises stay of execution, injunction or stay of further proceedings in civil proceedings where a notice of appeal has been lodged. Such reliefs must relate to orders or proceedings of the court appealed from. Here the proceedings sought to be stayed were before the Bungoma Chief Magistrate's Court, not the High Court whose decision was the subject of the intended appeal. The High Court had merely dismissed the petition and issued no order capable of being stayed, reinforcing the incompetence of the motion.

A perusal of the grounds and the draft memorandum of appeal led the Court to conclude that the intended appeal was arguable, since the applicant raised the bona fide complaint that having been previously treated as a prosecution witness, it was unfair for the prosecution to resile and charge him as an accused, implicating his right to a fair trial. An arguable appeal need only raise a single bona fide point worthy of consideration and need not necessarily succeed.

The applicant's complaint was stigmatization and shame from criminal proceedings. The Court held that criminal proceedings inherently bring anxiety, publicity and embarrassment, but that unpleasantness does not render an appeal nugatory. No allegation was made that the applicant would not receive his full rights as an accused or that the trial court would be unfair; an acquittal would vindicate him. Both limbs being required, the application failed.