Director of Public Prosecution v Coco & 9 others (Civil Appeal E029 of 2025) [2026] KECA 928 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that courts cannot stop criminal investigations or prosecutions just because there's a related civil dispute.
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 learned Judge was wrong in granting the orders staying further proceedings in Kilifi Chief Magistrate's Court Criminal Case No. E328 of 2024 pending the hearing and determination of the Petition.
- 2.Whether the learned Judge wrongly prohibited the Appellant and investigative agencies from conducting further criminal investigations against the 1st to 3rd Respondents, and whether such orders unlawfully interfered with the constitutional and statutory mandates of the Director of Public Prosecutions and the National Police Service.
- 3.Whether the learned Judge was wrong in staying the trial court's orders of 20th November 2024, and in directing the Director-General of Immigration Services not to comply with the orders relating to surrender of passports without first calling for the lower court file or properly invoking the High Court's supervisory jurisdiction.
Key legal issues
#Whether the High Court properly stayed ongoing criminal proceedings pending determination of the constitutional petition
The Judge misdirected herself; there was no material showing the prosecution was patently unlawful, oppressive or an abuse of process warranting a stay.
The Court invoked the settled principles for conservatory orders and the Dande authority that stays of criminal proceedings are sparingly granted. Parallel civil disputes do not bar criminal proceedings, as confirmed by section 193A of the Criminal Procedure Code and Kuria v AG. Nothing on record demonstrated malice or abuse; the stay prematurely arrested an ongoing criminal process before a court of competent jurisdiction.
Whether the blanket prohibition on further criminal investigations was lawful
It was not; the order effectively conferred immunity from investigations and interfered with the constitutional functions of the National Police Service and the DPP.
The Court traced the investigative mandate of the DCI under Articles 239, 243 and 245 of the Constitution and sections 24 and 35 of the National Police Service Act, and authorities requiring ulterior motive or abuse before intervention. The impugned orders were broad, far-reaching and indeterminate, precluding investigation of even future complaints, going beyond preserving the substratum of the Petition.
Whether the 2nd Ruling could properly reverse the trial court's passport-deposit orders without calling for the lower court file
The Judge failed to lay any basis for reversing the trial court's orders and misdirected herself in the exercise of discretion.
The record showed the trial court had, after a reasoned ruling on 20th November 2024, vacated earlier orders delegating travel approval to the DCI. The 1st Ruling did not address passport deposit at all, so no basis supported the reversal. Applying Mbogo v Shah, Price v Hilder and Apungu Arthur Kibira, the appellate court was entitled to interfere since the Judge failed to consider relevant matters and arrived at a wrong decision.
Legal principles established
#- Courts should not intervene in criminal investigations and prosecutions absent clear evidence of illegality, malice, or abuse of process; parallel civil disputes do not bar criminal proceedings.
- An order for stay of criminal proceedings is granted only in exceptional circumstances upon sparing exercise of judicial discretion.
- Conservatory relief in constitutional proceedings requires a prima facie case with likelihood of success, the substratum of the petition being rendered nugatory, and public interest favouring the relief.
- Blanket orders prohibiting future investigations into matters that may arise are impermissible; they exceed preserving the substratum of a petition.
- An appellate court will only interfere with a discretionary decision where the judge misdirected himself, acted on wrong matters or failed to consider relevant ones, and arrived at a wrong decision causing injustice.
Court orders
#- 1.The Ruling dated 29th August 2024 (1st Ruling) is set aside.
- 2.The Ruling dated 25th April 2025 (2nd Ruling) is set aside.
- 3.Costs to the 1st and 4th to 10th Respondents.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Malindi
- Constitutional Petition No. E006 of 2024
- Jurisdiction invoked
- First appeal to the Court of Appeal against High Court rulings in a constitutional petition
Relief refused
#Respondents' application dated 31st May 2024 (as allowed by the 1st Ruling) - stay of criminal case and prohibition of further investigations
No material demonstrated the prosecution was unlawful, oppressive or an abuse of process; the orders conferred immunity from investigations and interfered with constitutional mandates.
Respondents' Notice of Motion dated 20th November 2024 (as allowed by the 2nd Ruling) - stay of trial court's passport-deposit orders and bar on Immigration compliance
The learned Judge misdirected herself by reversing the trial court's passport orders without considering matters she ought to have taken into consideration.
Costs
Costs to the 1st and 4th to 10th Respondents.
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 sum, the appeal succeeds and is allowed, with the result that the Ruling dated 29th August 2024 and the Ruling dated 25th April 2025 are hereby set aside. Costs to the 1st and 4th to 10th Respondents. It is so ordered.
Civil and criminal liability are not mutually exclusive, and the existence of one process does not automatically invalidate the other.
an order for stay of criminal proceedings is not granted as a matter of course but upon the sparing exercise of judicial discretion and only in exceptional circumstances.
the courts will interfere with the exercise of discretion sparingly and in the exceptional and clearest of cases.
the orders went beyond preserving the substratum of the Petition and instead efiectively conferred immunity from investigations upon the 1st, 2nd and 3rd Respondents.
An appellate court will interfere if the exercise of the discretion is clearly wrong because the judge has misdirected himself or acted on matters which he should not have acted upon or failed to take into consideration matters which it should be taken into consideration and in doing so arrived at a wrong conclusion.
Issues in the judgment
#The judgment refers inconsistently to the Notice of Motion instituting the 1st Ruling as dated 31st May 2024 in one passage and 30th May 2024 in another.
The judgment refers to the criminal case variously as No. E328 of 2024, No. E0328 of 2024 and No. 328 of 2024, and to the earlier case as both E506 of 2023 and 506 of 2023.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Director of Public Prosecution v Coco & 9 others (Civil Appeal E029 of 2025) [2026] KECA 928 (KLR)", Case Analysis (2026). Court of Appeal, Malindi (delivered at Mombasa) - appeal against High Court Constitutional Petition No. E006 of 2024 rulings. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/928/eng@2026-05-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.