The Republic v Raphael Muoki Kalungu
The bottom line
#Kenya's Court of Appeal refused to block a convict's release or fast-track the State's appeal, stressing that certain applications must first go before a single judge.
What this practically means
#Executive summary
#Key legal issues
#Whether the full bench could determine prayers reserved by rule 55 for a single judge
The court declined to determine the three prayers that under rule 55 must be heard by a single judge, confining itself to the prayers properly before the full bench.
Rule 55(2) reserves applications for leave to appeal, stay of execution/injunction/stay of proceedings, and striking-out applications to a single judge. Since the application mixed such prayers with others, the full bench could only address the latter. Counsel was prodded to reflect on this but did not, so the court confined itself to issues properly before it and invited counsel to move the court appropriately before a single judge.
Whether the respondent's release on remission should be stayed pending the intended appeal
The prayer for stay of release was dismissed as speculative and unfounded in nugatory- prejudice.
The court found the prayer speculative because the letter annexed to the application was not conclusive of the respondent's impending release. It further held that release would not interfere with the appeal: if the restoration prayers before a single judge succeeded, the appeal would proceed, and if the sentence were altered on appeal, the relevant State organ would implement the outcome. Thus no nugatory- prejudice was established.
Whether the appeal should be fast-tracked
The request to fast-track was refused as unnecessary and premature.
Criminal hearings in Nairobi are real-time, so an order fast-tracking the appeal would serve no purpose. Further, it would be premature to fast-track an appeal that had not yet been restored, since the notice of withdrawal of the notice of appeal had not yet been withdrawn and the appeal remained unrestored. The court therefore declined to make the order.
Legal principles established
#- Where an application contains a mixture of prayers, some of which are reserved for a single judge under rule 55 of the Court of Appeal Rules, a full bench cannot determine those prayers; counsel must move the court appropriately before a single judge.
- A stay of release pending appeal will not be granted where release of the convict on remission would not render the intended appeal nugatory.
Court orders
#- 1.The entire application dated 11th July 2024 (and the encompassed application dated 21st February 2024) was dismissed
- On appeal from
- High Court
- Not stated in the judgment
- Jurisdiction invoked
- Section 379 of the Criminal Procedure Code and rules 4, 5(2)(a), 61(7), 70(1) and 70(3) of the Court of Appeal Rules, 2022
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "The Republic v Raphael Muoki Kalungu", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/900/eng@2025-05-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.