Director of Public Prosecutions v Daniel Lo Coco & 8 others

The Court perused the draft Memorandum of Appeal and identified grounds that were not frivolous and merited consideration. It emphasised that on a rule 5(2)(b) application it must not delve into the merits or demerits of the appeal so as not to embarrass the bench hearing the appeal; the significance of the rule is to preserve the substratum of the appeal. A single bona fide arguable ground suffices.

The Court noted the blanket order staying investigations against the 1st to 3rd respondents and the danger of jeopardising both the petition and the criminal proceedings. It declined to second-guess the outcome of the pending passport ruling and held that, to preserve the integrity of the appellate process and avoid a pyrrhic victory, justice lay in staying the petition proceedings and expediting the appeal.

The Court reasoned that the criminal proceedings before the Kilifi Magistrate's Court remain active, and this Court, being at the second tier of any appeal arising from the trial Magistrate's decision, has no business micro-managing how the Magistrate conducts his proceedings. Acceptable appellate practice is to restrain from micro-managing lower courts, relying on Joseph Nduvi Mbuvi vs. Republic and Kenya Deposit Insurance Corporation vs. Richardson & David Limited.

The 1st to 3rd respondents had argued the appeal was incompetent because the Notice of Appeal was filed by the applicant and the 5th respondent while the Record of Appeal was filed by the Republic. The Court held it was not within its purview at that juncture to determine competence, reserving that issue for the pending application under rule 86.