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Court of AppealDismissedCriminal Application No. 3 of 2019· [2020] KECA 663 (KLR)

Kuldip Madan & another v Director of Public Prosecutions [2020] KECA 663 (KLR)

Court of Appeal
22 May 2020
1,929 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 refused to pause criminal charges against the Madan brothers, confirming courts rarely halt prosecutions just because an accused fears an unfair trial.

What this practically means

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Executive summary

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The applicants, charged in Criminal Case No. 2005 of 2017 before the Chief Magistrates' Court at Nairobi with falsely acquiring Letters of Administration in the Estate of the Late Yogaish Madan Mohan Sapra, had the charges rejected by the magistrate in a ruling dated 23rd May 2018 as defective under Section 89(5) of the Criminal Procedure Code, the magistrate also finding inadequate investigations and that the dispute was an offshoot of a pending succession cause. The DPP invoked the High Court's revisionary jurisdiction under Section 362 of the Criminal Procedure Code and Article 165(6) and (7) of the Constitution, but Ngenye, J. in a ruling of 11th March 2019 revised the magistrate's order, holding that the charges disclosed a cognizable offence and that under Section 193A civil and criminal proceedings may run concurrently. The applicants then sought a stay of that order pending appeal under Rule 5(2)(b) of the Court of Appeal Rules. Applying the twin Trust Bank tests, the Court of Appeal (Ouko, P., Koome and J. Mohammed, JJ.A) found the appeal not arguably arguable - the fear of an unfair trial from incomplete investigations not being a bona fide contention, since procedural failures can be raised on appeal - and found no nugatory prejudice, holding that criminal courts must perform their duty under Article 159(2). The application was dismissed with costs in the appeal.

Key legal issues

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01

Twin prerequisites for a stay under Rule 5(2)(b)

Holding

The applicants satisfied neither the arguability nor the nugatory limbs; the discretion was declined and the application dismissed.

Reasoning

The court reaffirmed the Trust Bank principles, holding that the same twin tests govern applications to stay criminal proceedings. On arguability, the apprehension of an unfair trial due to incomplete investigations was not a bona fide arguable point, and any procedural failure could be raised on appeal after trial. On nugatory aspect, the court held it is the duty of criminal courts to try cases per Article 159(2), which the Court will not interfere with.

p. 3
02

Whether fear of an unfair trial due to incomplete investigations is an arguable ground

Holding

No - the offence charged is recognised under the Penal Code, and any failure to comply with law or procedure at trial constitutes grounds of appeal thereafter, not a basis for a stay.

Reasoning

The court acknowledged that fair-trial rights are constitutionally ring-fenced, but held that should a trial disclose non-compliance with the law or procedure, that would be grounds of appeal before the High Court by the aggrieved party. The mere apprehension or fear of an unfair trial, where the charged offence is cognizable under the Penal Code, does not disclose a bona fide arguable contention.

p. 2
03

Interference with the duty of criminal courts

Holding

The Court will not interfere with the function and duty of criminal courts to try and determine cases before them, guided by Article 159(2) of the Constitution.

Reasoning

Rejecting the nugatory limb, the court reasoned that criminal courts are mandated by law to try cases before them, guided by the purpose and principles of the Constitution under Article 159(2). The prospect that a High Court revision ruling would cause confusion in subordinate courts, given that High Court decisions bind them, was not a reason to find the appeal nugatory.

p. 3

Legal principles established

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  • To succeed on a Rule 5(2)(b) application an applicant must show both that the appeal is arguable and that it will be rendered nugatory unless a stay is granted; these principles apply equally to stays of criminal proceedings.
  • On an arguability assessment the court need only find a single bona fide contention worthy of further interrogation; fear of an unfair trial based on incomplete investigations is not, by itself, an arguable ground.

Court orders

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  1. 1.The application dated 19th March 2019 be and is hereby dismissed
  2. 2.Costs to be in the appeal

Authorities

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Legislation

  • Criminal Procedure CodeSection 89(5)
  • Criminal Procedure CodeSection 362
  • Criminal Procedure CodeSection 364(5)
  • Criminal Procedure CodeSection 361(7)
  • Criminal Procedure CodeSections 134 to 137
  • Criminal Procedure CodeSection 193A
  • Penal Code
  • Constitution of KenyaArticle 157(7)
  • Constitution of KenyaArticle 165(6) & (7)
  • Constitution of KenyaArticle 159(2)
  • Court of Appeal RulesRule 5(2)(b)

Cases cited (3)

  • Trust Bank Limited & Another vs. Investech Bank Ltd & 3 Others
    [2000] eKLR (Civil Application Nos. Nai. 258 & 315 of 1999)
  • Berkeley North Market & Others vs. Attorney General & Others
    [2005] eKLR (Civil Application No. Nai. 74 of 2005)
  • Timothy Isaac Bryant & 2 Others vs. Inspector General of Police & 7 others
    [2015] eKLR (Criminal Application No. Nai. 3 of 2014 (R))
On appeal from
High Court of Kenya at Nairobi
Cri. Rev. Appl. No. 809 of 2018
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (application for stay pending appeal)

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, "Kuldip Madan & another v Director of Public Prosecutions [2020] KECA 663 (KLR)", Case Analysis (2020). Criminal Application No. 3 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/663/eng@2020-05-22

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