Kerema v Republic & another
The bottom line
#Kenya's Court of Appeal refused to pause a criminal trial, confirming that criminal cases continue unless malice and abuse of process are clearly proven.
What this practically means
#Executive summary
#Key legal issues
#Stay of criminal proceedings pending intended appeal
Stay refused; the twin principles of arguability and nugatory-ness were not demonstrated
The court applied the established test that subordinate court criminal proceedings are stayed only where malice, abuse of process or improper motive is demonstrated, and that an applicant must also show the appeal is arguable and its success would not be rendered nugatory. On a cursory look, none of these was established, and the orders sought circumvented the High Court's orders.
Abuse of process / improper motive by prosecution
Not demonstrated; forgery as a charge could not be subsumed into civil proceedings over the same dispute
The court found no evidence that the prosecution was an abuse of process or instituted for an improper motive. The High Court had earlier agreed with the magistrate that forgery being one of the charges, the criminal case was not an abuse of the court process notwithstanding a parallel civil action.
Circumvention of High Court orders
The stay application was an attempt to circumvent the High Court's orders declining revision and stopping the applicant's attempt to halt his prosecution
The applicant's appeal before the High Court was incompetent, filed out of time and against an interlocutory ruling barred by section 347 of the CPC. Even when treated as revision, the High Court agreed with the trial court. Seeking stay of the trial pending an intended appeal would circumvent those orders.
Legal principles established
#- Criminal proceedings before a magistrate's court will not generally be stayed pending an appeal from a High Court decision unless the prosecution is actuated by malice and there is an abuse of the court process
- An applicant for stay of criminal proceedings must demonstrate the twin principles that the appeal is arguable and that its success would not be rendered nugatory unless stay is granted
Court orders
#- 1.The Notice of Motion dated 23rd July, 2021 seeking stay of criminal proceedings in Thika Chief Magistrate's Court Criminal Case No. 7344 of 2020 is dismissed
- 2.No orders as to costs
- On appeal from
- High Court of Kenya at Kiambu
- HC Criminal Appeal No. E012 of 2020
- Jurisdiction invoked
- Rule 1(2), 41 and 47 of the Court of Appeal Rules (inherent jurisdiction of the Court of Appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kerema v Republic & another", Case Analysis (2022). Criminal Appeal E016 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/173/eng@2022-02-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.