Major Peter Mwaura Mugure v Director of Public Prosecutions & 3 others

The court held that although jurisdiction is a fundamental issue, the intended appeal did not raise an arguable ground. Article 165 confers unlimited original criminal jurisdiction on the High Court, including over murder, while Article 169 recognizes the court-martial as a subordinate court. Sections 56 and 211 of the KDF Act expressly preserve civil courts' jurisdiction to try persons subject to the Act for offences outside Part VI. The applicant therefore failed the first limb of the Rule 5(2)(a) test, and the second limb need not be considered.

The court reiterated the settled two-limb test: the intended appeal must be arguable, and unless a stay is granted the appeal will be rendered nugatory. Because stay of proceedings is a serious judicial action interfering with rights of access to justice and fair hearing, courts must weigh the pros and cons, including expeditious disposal, the prima facie merits, judicial time and expedition in bringing the application. Failure on the first limb disposes of the application.