Mutune v Republic (Criminal Application E290 & E292 of 2024 & Criminal Appeal (Application) E124 of 2024 (Consolidated)) [2025] KECA 496 (KLR)
The bottom line
#The Court of Appeal refused to halt the Baby Pendo criminal case, ruling that fear of interdiction does not justify stopping criminal prosecutions in Kenya.
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 applications are incompetent for being brought under rule 5(2)(a) of the Court of Appeal Rules
- 2.Whether there is a competent notice of appeal before the Court
- 3.Whether the National Police Service should be joined as a party in Nairobi COA Criminal Appeal No. E124 of 2024
- 4.Whether the victims are properly before the Court
- 5.Whether an order of stay should be granted
Key legal issues
#Whether applications for stay in criminal matters can be brought under rule 5(2)(a) of the Court of Appeal Rules
The objection was disallowed. Although the scope of rule 5(2)(a) is limited, the Court declined to bar the applications on that technical ground given divergent views within the Court on whether such applications can be brought under rule 5(2)(b).
The Court noted varying views on the scope of rule 5 in criminal proceedings, adopted the holding in Republic v Kenya Anti-Corruption Commission that the applicability of rule 5(2)(b) to criminal proceedings depends on the prayers sought and the circumstances of each case, and held that acceding to the objection would bury substantive issues under a heap of technicalities.
Whether there is a competent notice of appeal before the Court
The Court held that contested facts about a notice of appeal do not permit it to venture into the validity or otherwise of the notice when determining a stay application under rule 5(2).
Rule 5(2) refers to the filing of a 'notice of appeal', not a 'valid notice of appeal'. Relying on National Industrial Credit Bank Ltd v Wasike, the Court held that validity of a notice of appeal is determined under rule 80 and need not be resolved when a rule 5(2) application is being considered.
Whether the National Police Service should be joined as a party to the appeal
The application for joinder was dismissed in its entirety on the ground that the NPS lacks juridical capacity to be a party to proceedings.
The Court distinguished the NPS established under Article 243 from the NPSC established under Article 246(1). Only the NPSC wields powers of a body corporate under section 3(1)(b) of the NPSC Act. The expectation is that the Inspector General, who commands the NPS and was a party below, sues or is sued on its behalf; having elected not to join the appeal, the NPS could not be admitted.
Whether the victims' representative organisations were properly before the Court
The KNCHR, Utu Wetu, IJM and LSK were held to be properly before the Court as parties who participated in the proceedings before the High Court, representing victims of the crimes being tried.
The respondents participated in the proceedings before the High Court and are entitled to be heard on appeal. The objection to their participation was not raised in the pleadings, denying them a chance to respond substantively, and the Supreme Court has bindingly held under the Victims Protection Act that victims have a right to participate actively in criminal and auxiliary proceedings.
Whether the intended appeal is arguable
The Court readily accepted that the intended appeal is arguable because the invocation of command responsibility under the International Crimes Act and the Rome Statute is a novel occurrence within the jurisdiction.
The Court observed that applying the doctrine of command responsibility (superior responsibility) in the prosecution of accused persons under the International Crimes Act and the Rome Statute is unprecedented in Kenya, and the respondents could not deny that the issues raised deserve their day in an appeal.
Whether the appeal would be rendered nugatory if stay is not granted
The appeal would not be rendered nugatory. Potential interdiction, loss of pay and stigma are not irreversible; no malice, abuse of process or improper motive was demonstrated; and the trial court is obliged to protect the suspects' constitutional rights.
The consequences feared befall every public servant facing a criminal trial. The applicants did not pinpoint any specific act giving rise to a fear of injustice. Criminal proceedings should not be stopped on speculation or apprehension; a violation must be plain and obvious. Further delay would also erode the quality of justice for victims of the 2017 events, whose right of access to justice the Court had to balance against the applicants' rights.
Legal principles established
#- The National Police Service, being distinct from the National Police Service Commission and not clothed with body corporate powers, has no capacity to sue or be sued in its own name; the Inspector General sues or is sued on its behalf.
- Pending an appeal from the High Court, criminal proceedings may only be stayed where the prosecution is actuated by malice, constitutes an abuse of process or is instituted for an improper motive, and where the appeal would otherwise be rendered nugatory; apprehension of interdiction or of being tried under a novel doctrine does not suffice.
- When considering an application under rule 5(2), the Court will not inquire into the validity or otherwise of a notice of appeal; that question falls under rule 80.
- Victims of crimes have a right to participate actively in criminal and auxiliary proceedings concerning the crimes they suffered, as bindingly interpreted under the Victims Protection Act.
Court orders
#- 1.The respondents' objection that the applications were incompetent for being brought under rule 5(2)(a) is disallowed
- 2.The NPS' motion dated 19th December 2024 lodged in Nairobi COA Criminal Appeal No. E124 of 2024 is dismissed in its entirety
- 3.The applications for stay of execution of the ruling delivered by Kimondo, J. on 25th July 2024 and of the trial in Nairobi High Court Criminal Case No. E074 of 2022 are dismissed
- 4.Nairobi COA Criminal Appeal No. E124 of 2024 is certified urgent and directed to be listed before the Registrar of the Court within 14 days for issuance of directions on the hearing of the appeal, with a view to having the appeal listed for hearing in the coming term
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Criminal Case No. E074 of 2022 (ruling appealed against in Nairobi COA Criminal Appeal No. E124 of 2024)
- Jurisdiction invoked
- Rule 5(2) of the Court of Appeal Rules and the inherent jurisdiction of the Court pending appeal from the High Court
- Consolidated with
- Criminal Application No. E292 of 2024, Criminal Appeal (Application) No. E124 of 2024
Relief refused
#Stay of execution of the ruling of Kimondo, J. delivered on 25th July 2024
Although the intended appeal is arguable, the applicants failed to demonstrate that it would be rendered nugatory; interdiction upon taking plea befalls every public servant facing a criminal trial and is not an irreversible event
Stay of proceedings in Nairobi High Court Criminal Case No. E074 of 2022
No malice, abuse of process or improper motive was demonstrated; no imminent injustice was shown; further delay would prejudice the victims' right to access justice
Joinder of the National Police Service as a party to Nairobi COA Criminal Appeal No. E124 of 2024
The NPS lacks juridical capacity to sue or be sued; the Inspector General, who commands the NPS, was a party below and should be a party to the appeal as of right
Costs
No costs order was made in the judgment.
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.
Consequently, the NPS’ motion dated 19th December 2024 lodged in Nairobi COA Criminal Appeal No. E124 of 2024 is dismissed in its entirety.
The applications are bound for dismissal, which we hereby do. We also reafirm our dismissal of the application by the National Police Service to be made a party to Nairobi COA Criminal Appeal No. E124 of 2024.
In that regard, we certify Nairobi COA Criminal Appeal No. E124 of 2024 urgent, and direct that the same be listed before the Registrar of the Court within 14 days from the date hereof for issuance of directions on the hearing of the appeal.
the NPS does not have statutory or constitutional authority to sue or be sued and cannot, therefore, be made a party to the appeal
Proceedings before a court of law should not be stopped on the basis of speculation or apprehension.
If the Court were to halt every other criminal trial on such grounds, then the objectives of criminal trials will be lost.
The jurisdiction is sparingly used and only where the justice of the matter so demands.
Issues in the judgment
#The issues as framed in paragraph 40 combine the fourth and fifth issues in one line and appear to frame the fourth issue as whether the victims are properly before the Court, whereas paragraph 46 presents the fourth issue as the NPS' application for joinder; the Court answers both questions.
The judgment does not record any costs order despite determining three applications.
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.
- Magnoy Communications Ltd v Absa Bank Kenya PLC & another (Civil Application E477 of 2025) [2026] KECA 705 (KLR)[2026] KECA 705 (KLR)25 Mar 2026followed
- Gitonga & another v County Government of Mombasa & 5 others (Civil Appeal (Application) E211 of 2024) [2025] KECA 1082 (KLR)[2025] KECA 1082 (KLR)20 Jun 2025
Cite this brief
#Cite this brief
Caselaw, "Mutune v Republic (Criminal Application E290 & E292 of 2024 & Criminal Appeal (Application) E124 of 2024 (Consolidated)) [2025] KECA 496 (KLR)", Case Analysis (2025). Criminal Application No. E290 of 2024 (with Criminal Application No. E292 of 2024 and Criminal Appeal (Application) No. E124 of 2024, consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/496/eng@2025-03-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.