Perry Mansukh Kansagara & 3 others v Director of Public Prosecutions [2021] KECA 941 (KLR)
The bottom line
#The Court of Appeal refused to pause the Solai dam tragedy retrial, ruling that stopping it would waste time and harm co-accused persons' right to a speedy trial.
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 under Rule 5(2)(b) of the Court of Appeal Rules
- 2.Whether the appeal, if successful, would be rendered nugatory if stay of proceedings is not granted
Key legal issues
#Arguability of the intended appeal
The intended appeal is not frivolous; the applicants demonstrated arguability by raising, among others, whether the Judge could overturn an acquittal while sitting on revision.
The draft memorandum of appeal raised questions including whether the learned Judge erred in invoking constitutional supervisory powers when moved under the revisionary jurisdiction of sections 364 and 365 of the Criminal Procedure Code, and whether he had jurisdiction to overturn an acquittal on revision. Since only one arguable point is required, arguability was satisfied.
The nugatory aspect
The applicants failed to demonstrate that the appeal would be rendered nugatory if the criminal trial proceeds, since the acquittal can be restored if the appeal succeeds.
If the appeal is allowed, the hearing before the trial court would simply be stopped and the acquittal restored, so nothing irreversible occurs. A stay would scuttle ongoing plea bargaining negotiations, compromise the speedy-trial rights of six co-accused who did not appeal, and, if the appeal failed, require recalling witnesses - an uneconomical use of judicial time. The matter also engages the public interest.
Legal principles established
#- An applicant under Rule 5(2)(b) must demonstrate both that the intended appeal is arguable and that it will be rendered nugatory if stay is not granted; demonstrating only one limb will not suffice.
- An applicant need only establish one arguable point to satisfy the arguability limb of the Rule 5(2)(b) test.
- The term 'nugatory' bears an expanded meaning beyond worthless, futile or invalid, and also means trifling; whether an appeal will be rendered nugatory depends on whether what is sought to be stayed is reversible or compensable in damages.
- Each stay application must be considered within its own peculiar circumstances, including the effect on co-accused persons and the public interest.
Court orders
#- 1.Application dismissed with costs in the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Naivasha
- H.C. CR. Revision No. 4 of 2020
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (application for stay of proceedings pending an intended appeal from a decision made under the High Court's revisionary jurisdiction under Sections 362, 364 and 365 of the Criminal Procedure Code)
- Consolidated with
- Nakuru Criminal Appeal (Application) No. 3 of 2020, Nakuru Criminal Appeal (Application) No. 4 of 2020
Relief refused
#Stay of proceedings in Naivasha MCR No. 977 of 2018 pending the hearing and determination of the intended appeal
The applicants failed to demonstrate the nugatory aspect; any reversal is achievable since the acquittal can be restored on appeal, public interest and the right of co-accused to a speedy trial weigh against a stay
Costs
The application is dismissed with costs in 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.
the law enjoins the applicants to demonstrate both arguability and the nugatory aspect as demonstrating only one limb will not suffice
Whether or not an appeal will be rendered nugatory depends on whether or not what is sought to be stayed if allowed to happen is reversible; or if it is not reversible whether damages will reasonably compensate the party aggrieved.
The term “nugatory” has to be given its full meaning. It does not only mean worthless, futile or invalid. It also means trifling.
each case must be considered within its own peculiar circumstances
we find that this application fails to meet the threshold set for applications under Rule 5(2) b of the Court of Appeal Rules. The application is therefore dismissed with costs in the intended appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Perry Mansukh Kansagara & 3 others v Director of Public Prosecutions [2021] KECA 941 (KLR)", Case Analysis (2021). Nakuru Criminal Appeal (Application) No. 2 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/941/eng@2021-02-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.