Daniel Kimani Kariuki v Director of Public Prosecution & another
The bottom line
#Kenya's Court of Appeal refused to stop a criminal prosecution, confirming courts will only halt the DPP where illegality is plain and obvious.
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
- 2.Whether the appeal would be rendered nugatory absent conservatory orders
- 3.Whether the applicant has shown a plain and obvious illegality, breach of law or violation of right warranting restraint of the DPP's prosecution
Key legal issues
#Standard for staying criminal proceedings under rule 5(2)(b)
A heightened threshold applies: the applicant must show an outright illegality or rights violation that is plain and obvious, applicable also to Article 157(12) prosecuting authorities.
Because the application seeks to prevent the DPP from exercising an independent constitutional mandate, a public-interest element arises. The ordinary rule 5(2)(b) twin principles are therefore overlaid with a requirement that the illegality or breach be overt and demonstrable without protracted argument before criminal proceedings will be halted.
Whether conservatory orders are available despite the order below being a negative order
Although the judgment appealed dismissed an injunction request and is a negative order, rule 5(2)(b) empowers the Court to grant an injunction or conservatory order, so the application was properly before the Court.
The Court distinguished conservatory orders from interlocutory injunctions following Munya v Kithinji, but held that under rule 5(2)(b) both serve one ultimate purpose: ensuring an arguable appeal is not rendered nugatory. The negative-order objection therefore did not defeat the application at the threshold stage.
Arguability of the intended appeal
The complaint that the trial judge determined the entire petition when only a motion for conservatory orders was before her was not frivolous and alone established arguability.
On arguability, a single bona fide arguable ground suffices. The applicant's contention that the High Court exceeded the scope of what was before it, deciding the substantive petition rather than only the motion, was accepted as not frivolous, satisfying the first limb of the rule 5(2)(b) test.
Nugatory aspect and alleged rights violations
Reputational prejudice was not reversible in the relevant sense given ongoing proceedings since 2018, and the alleged violations were not plain and obvious; the claimed defences could be raised at trial.
The Court found the applicant had already suffered reputational exposure from the existing part-heard proceedings since 2018. Alleged defects in the charges, such as the complainant's standing and the timing of court orders relative to alleged offences, were contestable at trial and did not amount to obvious violations justifying restraint of the DPP.
Legal principles established
#- The Court of Appeal will not invoke rule 5(2)(b) to stay criminal proceedings instituted by the DPP unless the applicant shows a plain and obvious illegality or rights violation not requiring protracted argument; this extends to prosecutions by other Article 157(12) authorities.
- The rule 5(2)(b) power to grant an injunction is also the power to grant conservatory orders, both serving the ultimate purpose of preserving an arguable appeal.
Court orders
#- 1.The notice of motion dated 14th August 2023 is dismissed
- 2.Costs of the application to the 2nd respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court at Kiambu
- Petition No. E022 of 2021
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (conservatory orders/injunction pending appeal)
Relief refused
#Conservatory order restraining the DPP from prosecuting the applicant in Kiambu Chief Magistrate's Court Criminal Case No. 1591 of 2018
No plain and obvious illegality, breach of law or violation of right shown; arguments can be deployed in defence at trial
Conservatory order on the High Court judgment and order of 3rd August 2023 pending the intended appeal
Application failed the rule 5(2)(b) twin principles on the heightened public-law standard applicable to restraining the DPP
Costs
Dismissed with costs to the 2nd respondent
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.
This Court will not invoke its rule 5(2)(b) jurisdiction to stay criminal proceedings pending before a trial court instituted and undertaken by The Director of Public Prosecutions (DPP) unless the applicant points out an outright illegality or breach of law in the institution or conduct of the proceedings, or a violation of right which does not require protracted arguments; the illegality, breach or violation must be plain and obvious.
This holds true to prosecutions instituted and undertaken by other authorities contemplated by Article 157(12) of the Constitution.
Undoubtedly, therefore, this Court’s jurisdiction to grant an order of injunction under rule 5(2)(b) is also the power to grant Conservatory Orders.
The application is without merit and the notice of motion dated 14th August, 2023 is hereby dismissed with costs to the 2nd respondent.
Issues in the judgment
#Petition number inconsistently stated
Criminal case number inconsistent with arraignment date
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Daniel Kimani Kariuki v Director of Public Prosecution & another", Case Analysis (2023). Civil Application E394 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1671/eng@2023-12-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.