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Court of AppealDismissedCriminal Application E001 of 2022· [2022] KECA 607 (KLR)

Zein v Republic

Court of Appeal
24 June 2022
WKW. KaranjaHOHannah OkwenguMAM. S. Asike-Makhandia
2,068 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to stop the transfer of a terrorism case to Kahawa Law Courts, confirming the High Court's broad power to transfer criminal cases.

What this practically means

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Executive summary

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The applicant, Waleed Ahmed Zein, faced terrorism-related charges before the Chief Magistrate's Court at Milimani. Following the gazettement of Kahawa Law Courts as a specialised counter-terrorism court, the ODPP requested transfer of partly heard counter-terrorism matters, and the Chief Magistrate compiled a list and made a report to the High Court, which on 29th November 2021 (G. Nzioka, J) dismissed the applicant's objection and directed transfer of the cases to Kahawa Law Courts. The applicant filed a notice of appeal and a notice of motion under rules 5(2)(b) and 42(1) of the Court of Appeal Rules seeking stay of execution of the High Court ruling and consequential proceedings pending the application and the intended appeal. The respondent, though not filing a replying affidavit, filed submissions opposing the motion. The Court of Appeal (W. Karanja, Hannah Okwengu and M. S. Asike-Makhandia, JJA) applied the twin conjunctive principles for stay: arguability of the intended appeal and whether it would be rendered nugatory absent a stay. The court held that the entire application turned on whether section 81(2) of the Criminal Procedure Code was complied with, and that the section is clear and unambiguous, permitting the High Court to transfer a case on a lower court's report, on an interested party's application, or on its own initiative. The High Court acted on the magistrate's report and had inherent power to make the transfer orders. Finding no arguable issues and no demonstrated prejudice, the court declined to consider the nugatory limb and dismissed the application. No costs order was recorded.

Key legal issues

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01

Compliance with section 81(2) CPC in the transfer of the applicant's case to Kahawa Law Courts

Holding

Section 81(2) was complied with; the High Court acted on the Chief Magistrate's report and had jurisdiction to transfer the case regardless of how the matter was initiated.

Reasoning

The court found section 81(2) clear and unambiguous, permitting transfer on a lower court report, an interested party's application, or the court's own initiative. The Chief Magistrate acted on the ODPP's request letter and made a report to the High Court, which then ordered the transfer. The court held the High Court had inherent power to entertain the matter and make the orders it did.

p. 4
02

Arguability of the intended appeal

Holding

The intended appeal raises no arguable issues and fails the first limb of the rule 5(2)(b) test.

Reasoning

The court held that the entire application turned on whether section 81(2) was complied with, and since the section is clear and the transfer was properly initiated by report, no triable issue arose. The applicant's complaints about delay and prejudice were not demonstrated; indeed the stay application itself contributed to the delay.

p. 4
03

Nugatory aspect of the application

Holding

Having failed the arguability limb, the court found it unnecessary to consider the nugatory limb, the two being conjunctive.

Reasoning

The court reiterated that an applicant must demonstrate both arguability and nugatory aspect; demonstrating only one limb is of no assistance. Since the first limb failed, the application could not succeed and was dismissed without considering the second limb.

p. 4

Legal principles established

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  • Section 81(2) of the Criminal Procedure Code empowers the High Court to transfer a criminal case on a report of the lower court, on the application of an interested party, or on its own initiative; the mode of initiation does not oust the High Court's jurisdiction.
  • An applicant under rule 5(2)(b) must satisfy both the arguability and nugatory limbs, which are conjunctive; satisfying only one is insufficient.

Court orders

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  1. 1.The application for stay of execution is dismissed

Authorities

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Legislation

  • Criminal Procedure Codesection 81(2)
  • Criminal Procedure Codesection 82(2)
  • Constitution of KenyaArticle 47
  • Constitution of KenyaArticles 19, 20, 21, 25, 27, 28, 48, 50(1)(2), (a), (e) and 157
  • Court of Appeal Rulesrule 5(2)(b)
  • Court of Appeal Rulesrule 42(1)
  • Terrorist Act 2012section 5(a)

Cases cited (3)

  • Berkely North Markel & 2 Others v Attorney General & 3 others
    [2005] eKLR

    Requirements for stay: arguable appeal and appeal rendered nugatory in absence of stay

  • Githunguri v Jimba Credit Corporation Ltd (no. 2)
    [1988] KLR 838

    Twin principles of arguability and nugatory aspect for stay applications

  • K. J. Industries Ltd v Kenya Commercial Bank Ltd
    [1982-1988] I KAR 1088

    Twin principles of arguability and nugatory aspect for stay applications

On appeal from
High Court of Kenya at Nairobi
HC Cr. Applications Nos. 225, 226, 227 & 228 of 2021
Jurisdiction invoked
Rule 5(2)(b) and 42(1) of the Court of Appeal Rules (application for stay of execution 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, "Zein v Republic", Case Analysis (2022). Criminal Application E001 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/607/eng@2022-06-24

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