Republic v Bwanamaka & 4 others (Criminal Miscellaneous Application E005 of 2023) [2024] KECA 825 (KLR)
The bottom line
#Kenya's Court of Appeal refused to pause a cargo firm's acquittal and rice reshipment because KRA gave no evidence of flight risk, even though the appeal itself was arguable.
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 under rule 5(2)(b) of the Court of Appeal Rules
- 2.Whether the appeal would be rendered nugatory if stay of the High Court's orders (acquittal, refund of fines, reshipment of condemned rice) is not granted
- 3.Whether the Court has jurisdiction to stay an order of acquittal
Key legal issues
#Whether the intended appeal is arguable
The ground that the High Court failed to consider the ingredients of the offences and whether they were proved to the required standard is arguable
The Court need only identify a single bona fide arguable ground. The applicant contended the High Court erred in acquitting without determining whether the ingredients of the charged offences under the East African Community Customs Management Act were proved. The Court found this a bona fide ground worthy of ventilation, satisfying the first limb.
Whether the appeal would be rendered nugatory absent a stay of the acquittal
The nugatory test was not satisfied because there was no evidence of flight risk and some respondents had already left the jurisdiction
While an appellate court may stay an acquittal following Republic v Ahmad Abolfathi Mohammed, the prosecution must demonstrate concrete risk of flight. Mere assertion that the 5th respondent was a flight risk, unaccompanied by evidence, and the concession that some respondents had already left the jurisdiction, meant the prerequisites for stay of acquittal were not met.
Stay of refund of fines and reshipment of rice
No stay possible on refund of fines (already paid out) and stay of reshipment of the condemned rice was not shown to be necessary to avoid rendering the appeal nugatory
Both counsel agreed the fines had been refunded, leaving nothing to stay. On the rice, the applicant gave no explanation of how allowing reshipment of rice declared unfit for human consumption would render the intended appeal nugatory. Both limbs of relief thus failed the nugatory test.
Correct rule for the application
The application was brought under rule 43, which was inapposite; the Court treated it as one under rule 5(2)(b)
The motion invoked rule 43 of the Court of Appeal Rules, 2022, which bears no relation to the principles advanced. The Court surmised the intention was to invoke rule 5(2)(b) and determined the application on that basis, ensuring the application was not defeated on a technicality of rule selection.
Legal principles established
#- Stay orders in criminal proceedings can only be sought in this Court on appeal arising from a decision of the High Court
- An appellate court may stay an acquittal pending appeal, but only sparingly and on demonstrated risk of flight that would render the appeal academic
- To succeed on rule 5(2)(b), the applicant must satisfy the twin tests of an arguable appeal and nugatory aspect
Court orders
#- 1.The Notice of Motion dated 9th November 2023 is dismissed
- 2.Costs in the appeal (i.e. costs of the application to await the outcome of the intended appeal)
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Mombasa High Court Criminal Appeal No. E43 of 2021
- Jurisdiction invoked
- Article 164(3)(a) of the Constitution; sections 3A and 3B of the Appellate Jurisdiction Act; rule 5(2)(b) of the Court of Appeal Rules, 2022 (application mis-invoked rule 43)
Relief refused
#Stay of the respondents' acquittal
No evidence that the 5th respondent is a flight risk; some respondents had already left the jurisdiction
Stay of the refund of fines
Fines already refunded; the issue was overtaken by events
Stay of the order for reshipment of the condemned rice
No demonstration of how declining a stay would render the appeal nugatory
Costs
Costs in the appeal.
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.
In effect, the applicant has failed to satisfy the nugatory aspect in respect of a rule 5 (2) (b) application with the result that the Notice of Motion dated 9th November 2023 is without merit and is hereby dismissed. Costs in the appeal.
The jurisdiction of the Court under Rule 5(2)(b) is original and discretionary and it is trite law that to succeed an applicant has to show firstly that his appeal or intended appeal is arguable
Orders of stay and remand of an accused-respondent should be sparingly granted. The prosecution must demonstrate to the court the risk of flight likely to render the appeal or intended appeal an academic exercise
Issues in the judgment
#The judgment inconsistently renders the flight-risk passage in the quoted Supreme Court excerpt ('fiight' in the body vs 'flight' later in the same quotation), an apparent typographical error in the source
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Bwanamaka & 4 others (Criminal Miscellaneous Application E005 of 2023) [2024] KECA 825 (KLR)", Case Analysis (2024). Notice of Motion dated 9th November 2023 in intended appeal from Mombasa High Court Criminal Appeal No. E43 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/825/eng@2024-07-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.