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Court of AppealDismissedCivil Application E154 of 2022· [2022] KECA 1087 (KLR)

Kithinji v Director of Public Prosecutions & another

Court of Appeal
7 October 2022
HOHA OmondiKLKI LaibutaPGPM Gachoka
1,769 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 a criminal trial, confirming that facing your defence is not unfairness and stay applications face a high bar.

What this practically means

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Executive summary

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The applicant, charged with assault causing actual bodily harm in Kibera Chief Magistrate's Criminal Case No 743 of 2018, failed in a High Court revision and then in a constitutional petition (Petition Miscellaneous E011 of 2021, Mrima J, delivered April 4, 2022) seeking declarations that his arrest, charge and trial violated articles 27, 28, 29(a) and 50 of the Constitution, that the P3 report was inadmissible, and an order terminating the prosecution. He then moved the Court of Appeal under rule 5(2)(b) for stay of the trial proceedings pending an intended appeal on 33 grounds. A three-judge bench (Omondi, Laibuta and Gachoka JJA) applied the settled twin principles: the applicant must show the appeal is arguable and that it would be rendered nugatory absent stay. The court found the appeal arguable, noting that one arguable point suffices and success need not be demonstrated. However, it held the second limb failed: the trial proceedings, then at defence-hearing stage, would give the applicant the opportunity to present his defence and enjoy his right to fair trial, and could not render the appeal worthless, futile or invalid. The court further held that criminal proceedings may only be stayed where continuation amounts to abuse of process, would produce an unfair trial, or would undermine the integrity of the criminal justice system - none of which applied to merely putting an accused on his defence. The application was dismissed with no orders as to costs.

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The court found the intended appeal arguable, satisfying the first limb

Reasoning

The court summarised the 33 grounds of appeal, including alleged misapprehension of facts on the arrest, arbitrariness of the charge, inadmissibility of the P3 report, and unfairness of trial. It held that whether the appeal would succeed was not for it to judge at the stay stage, and that the grounds disclosed arguable issues.

p. 3
02

Whether the appeal would be rendered nugatory absent stay

Holding

No - declining stay would not render the appeal worthless, futile or invalid

Reasoning

The trial proceedings, at defence-hearing stage, give the applicant the opportunity to present his defence and challenge prosecution evidence, and to enjoy his right to fair trial. The court could discern no prejudice, injustice, discrimination or dignity violation from requiring him to continue with his defence.

p. 3
03

Circumstances in which criminal proceedings may be stayed pending appeal

Holding

Stay requires abuse of process, unfairness of the resultant trial, or undermining the integrity of the criminal justice system - none present here

Reasoning

Relying on Chris Corns' article, the court set out three conditions for judicial termination of defective prosecutions. It found that being put on one's defence satisfies none of them, and that the DPP's constitutional discretion should not be lightly interfered with, trial courts being best placed to take evidence.

p. 3

Legal principles established

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  • To obtain stay of execution or further proceedings under rule 5(2)(b), an applicant must show the appeal is arguable and that it would be rendered nugatory absent stay
  • A single arguable point suffices and the applicant need not show the point will succeed
  • Being put on one's defence in criminal proceedings does not amount to abuse of process, unfairness, or undermining the integrity of the criminal justice system

Court orders

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  1. 1.The applicant's notice of motion dated May 12, 2022 seeking stay of proceedings in Criminal Case No 743 of 2018 is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Penal Codesection 251
  • Constitution of Kenya, 2010article 29(a)
  • Constitution of Kenya, 2010article 27(1)
  • Constitution of Kenya, 2010article 27(4)
  • Constitution of Kenya, 2010article 28
  • Constitution of Kenya, 2010article 50(1)
  • Constitution of Kenya, 2010article 50(2)
  • Constitution of Kenya, 2010article 50(4)
  • Court of Appeal Rulesrule 5(2)(b)

Cases cited (3)

  • Anne Wanjiku Kibeh vs Clement Kungu Waibara and IEBC
    [2020] eKLR

    Restating the twin principles for stay: arguability and nugatory-ness

  • Yellow Horse Inns Limited vs AA Kawir Transporters & 4 others
    [2014] eKLR

    One arguable point suffices; applicant need not show the point will succeed

  • Reliance Bank Ltd vs Norlake Investments Ltd
    (2002) 1 EA p 227

    Definition of 'nugatory' - worthless, futile, invalid or trifling; context-specific inquiry

On appeal from
High Court of Kenya at Nairobi
Petition Miscellaneous E011 of 2021
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (stay of proceedings pending intended 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, "Kithinji v Director of Public Prosecutions & another", Case Analysis (2022). Civil Application E154 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1087/eng@2022-10-07

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