Erdemann Property Limited & 2 others v Ethics and Anti-Corruption Commission & 5 others
The bottom line
#Kenya's Court of Appeal refused to pause an anti-corruption prosecution, confirming criminal trials continue during appeals unless exceptional circumstances are proven.
What this practically means
#Executive summary
#Key legal issues
#Availability of stay of criminal proceedings under Rule 5(2)(b)
The Court has jurisdiction under Rule 5(2)(b) to stay criminal proceedings where they form the substratum of the appeal, even though the judgment below was a negative order incapable of execution.
Although the dismissal of the constitutional petition was a negative order incapable of execution, the criminal proceedings sought to be stayed formed the substratum of the suit in the High Court. Because the proceedings bear directly on the appeal, the Court has jurisdiction to entertain the stay application under Rule 5(2)(b).
Arguability of the intended appeal
The applicants need only establish one arguable issue; the grounds raised were bona fide issues capable of argument and not frivolous.
The memorandum of appeal raised several issues including the applicable law, the propriety of the prosecution, alleged violation of constitutional rights, and the existence of an arbitration clause. The Court held that a single arguable issue suffices and found the grounds bona fide and capable of argument.
Nugatory aspect and exceptional circumstances
Criminal prosecution is not an irreversible event since the Court can set aside trial court findings; the applicants failed to demonstrate exceptional circumstances and were merely jumping the gun.
The nugatory test asks whether what the applicants seek to stop is irreversible and not compensable in damages. A criminal prosecution is reversible on appeal. The criminal trial court is obliged to ensure a fair trial, and the applicants retain appeal rights; mere speculation of prejudice does not constitute exceptional circumstances.
Legal principles established
#- Under Rule 5(2)(b), the Court of Appeal has power to grant stay of criminal prosecution proceedings where those proceedings have a bearing on the appeal before it.
- An applicant under Rule 5(2)(b) must satisfy the twin requirements of arguability and that the appeal would be rendered nugatory absent a stay.
- Stay of criminal proceedings pending appeal is granted only in exceptional circumstances.
Court orders
#- 1.The application for stay of proceedings in CM A.C.E.C. No. 26 of 2019 is dismissed with costs
- On appeal from
- High Court of Kenya, Anti-Corruption and Economic Crimes Division
- HC ACEC PET 20 OF 2019
- Jurisdiction invoked
- Sections 3, 3A & 3B of the Appellate Jurisdiction Act and Rule 5(2)(b) of the Court of Appeal Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Everlyne Awuor Ochieng v Pauline Adhiambo Oginga & 1 other[2026] KECA 1006 (KLR)29 May 2026followed
- Chabeda v Director of Public Prosecutions (Criminal Application E051 of 2025) [2025] KECA 1827 (KLR)[2025] KECA 1827 (KLR)7 Nov 2025followed
Cite this brief
#Cite this brief
Caselaw, "Erdemann Property Limited & 2 others v Ethics and Anti-Corruption Commission & 5 others", Case Analysis (2022). Civil Application E372 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/860/eng@2022-06-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.