Gitonga & another v County Government of Mombasa & 5 others (Civil Appeal (Application) E211 of 2024) [2025] KECA 1082 (KLR)
The bottom line
#The Court of Appeal refused to shield Mombasa bar and liquor business owners from criminal prosecutions while their challenge to county liquor laws continues on appeal.
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 (not frivolous)
- 2.Whether, unless the orders sought are granted, the appeal or any part thereof will be rendered nugatory
Key legal issues
#Arguability of the intended appeal
The intended appeal is arguable and not frivolous, given the question of compliance with Article 199(1) of the Constitution regarding gazettement of county legislation
Applying the principles in Stanley Kangethe Kinyanjui v Tonny Ketter & 5 others, the Court found a bona fide argument on the interpretation of Article 199(1), which provides that county legislation does not take effect unless published in the Gazette, and whether there was compliance in enacting the impugned statutes. Arguability was therefore satisfied.
Nugatory value of the appeal if orders are declined
Declining the orders sought will not render the appeal nugatory; the application for stay of prosecutions fails
The Court held that the merits of criminal charges are for the trial courts, and a blanket prohibition on instituting charges would be disproportionate. The applicant did not fit within the Diana Kethi Kilonzo parameters (malice, abuse of process, improper motive, or derogation of constitutional rights), and granting the orders would pre-judge the substance of the appeal. The expedited-hearing alternative was left to administrative channels.
Legal principles established
#- Under the Court's inherent jurisdiction and Rule 5(2), a blanket order barring or prohibiting the institution of criminal charges pending an appeal will not issue; it is disproportionate and inappropriate, as the merits of such charges fall to be determined by the trial courts
- Stay or suspension of criminal proceedings pending appeal is granted only sparingly, where the prosecution is actuated by malice, abuse of process, improper motive, or in derogation of the applicant's constitutional rights
Court orders
#- 1.The application dated 8th November 2024 is dismissed
- 2.No orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Mombasa
- Mombasa High Court Petition No. E059 of 2023
- Jurisdiction invoked
- Rule 5(2) of the Court of Appeal Rules (discretionary interlocutory relief pending determination of an intended appeal)
Relief refused
#Extension of the status quo order issued on 20th September 2024 by Olga Sewe, J., so as to prohibit the respondents from instituting or conducting criminal prosecutions under the Mombasa County Liquor Licensing Act 2014, the Mombasa County Trade License Act 2014 and the Alcoholic Drinks Control Act 2010, pending determination of the appeal
A blanket order barring institution of criminal charges would be disproportionate and inappropriate; such orders are sparingly granted only where prosecution is actuated by malice, abuse of process or improper motive, and granting the order would pre-judge the substance of the appeal
Expedited hearing and determination of the appeal (alternative prayer)
A matter the parties can take up administratively with the Presiding Judge of the Station through the Deputy Registrar; the Court made no order on it
Costs
We make no orders as to costs (each party to bear their own costs).
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 conclusion, the application fails and is hereby dismissed. We make no orders as to costs.
It is within the province of the trial courts where criminal charges may be instituted to determine the merits or otherwise of such charges, and a blanket order barring or prohibiting institution of charges would be disproportionate and inappropriate.
The jurisdiction is sparingly used and only where the justice of the matter so demands.
we are satisfied that the intended appeal is not frivolous
Issues in the judgment
#The application seeks to extend a 'status quo order issued on 20th September 2024 by Lady Justice O. A. Sewe as per 19th September 2024', yet the judgment elsewhere states the High Court judgment was delivered on 19th September 2024; the dates are internally inconsistent (the applicant marked the date '(sic)')
The applicant organization is referred to as the '2nd applicant' in the opening paragraph, but the 1st applicant is not clearly identified until the hearing record (Mr. Oloo appearing for the '1st applicant'); the identity of the 1st applicant is not stated in the judgment
The full names of the 1st to 6th respondents are never stated in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gitonga & another v County Government of Mombasa & 5 others (Civil Appeal (Application) E211 of 2024) [2025] KECA 1082 (KLR)", Case Analysis (2025). Not stated in the judgment (Civil Application under Rule 5(2) of the Court of Appeal Rules, arising from intended appeal against Mombasa High Court Petition No. E059 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1082/eng@2025-06-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.