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Court of AppealDismissedCourt of Appeal Criminal Application (Mombasa) arising from Memorandum of Appeal dated 18th December 2025· [2026] KECA 1004 (KLR)

Shivji Jadva Parbat Varsani & 2 others v Republic

Court of Appeal of Kenya
29 May 2026
2,809 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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The Court of Appeal in Mombasa dismissed a bid to pause a criminal trial, confirming it cannot stay orders it cannot enforce or courts outside the appeal chain.

What this practically means

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Executive summary

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The applicants, facing forgery and uttering charges in Mombasa Chief Magistrate's Court Criminal Case No. E1007 of 2021, moved to the High Court by way of revision seeking to set aside the trial court's ruling of 3rd September 2025 dismissing their application of 29th July 2025 concerning production of exhibits. The High Court (W. K. Micheni, J.) dismissed the revision application on 14th November 2025, finding no bias, noting a pattern of adjournments, and directing the trial to proceed expeditiously. The applicants then filed a Motion dated 18th December 2025 under rule 5(2)(a) of the Court of Appeal Rules, 2022, seeking stay of execution of the High Court orders and stay of the criminal trial pending their intended appeal. The respondent filed no reply or submissions. The Court identified two issues: whether the intended appeal is arguable, and whether it would be rendered nugatory absent stay. On the first limb, the Court found the draft memorandum raised substantive issues and that even one bona fide ground suffices. However, stay of execution failed because the High Court's dismissal was a negative order incapable of execution, applying Western College, Co-operative Bank and George Ole Sangui. Stay of proceedings failed on jurisdiction: following Diana Kethi Kilonzo, Mary Ngechi Ngethe and Benson Khwatenge Wafula, the Court held that rule 5(2) jurisdiction is confined to proceedings and orders of the court appealed from, and it cannot stretch downward to stay criminal proceedings in a subordinate court outside the appellate chain, save in exceptional cases of malice or abuse of process, none of which was demonstrated. The Motion was dismissed on 29th May 2026.

Key legal issues

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01

Whether the intended appeal is arguable under the first limb of the twin principles

Holding

The first limb was satisfied: the draft memorandum of appeal revealed numerous substantive issues of law and fact, and even one bona fide ground suffices.

Reasoning

The Court reviewed the draft memorandum of appeal against the record and found multiple substantive issues deserving inquiry. Consistent with precedent, even a single bona fide arguable ground satisfies the first limb, so the applicants crossed that threshold without the Court descending into the merits under rule 88.

p. 3
02

Whether the High Court's order of 14th November 2025 is capable of being stayed

Holding

No - the order dismissing the revision application was a negative order incapable of execution, so stay of execution does not avail.

Reasoning

Applying Western College and its progeny, the Court noted the High Court merely dismissed the application, ordering no party to do or refrain from doing anything or to pay any sum. Such negative orders confer no enforceable relief and cannot be stayed; the first relief sought therefore fails on principle.

p. 4
03

Whether the Court can stay criminal proceedings in the Chief Magistrate's Court under rule 5(2)(a)

Holding

No - the Court has no jurisdiction to stay criminal proceedings in a subordinate court that is not the court appealed from; rule 5(2) jurisdiction is strictly circumscribed to the appellate chain.

Reasoning

Following Kilonzo, Mary Ngechi Ngethe and Benson Khwatenge Wafula, the Court held that stay reliefs under rule 5(2) relate only to orders or proceedings of the court appealed from. The High Court ruling arose in the appellate chain, but the Magistrate's Court trial stands apart; extending the jurisdiction downward would be an impermissible jurisdictional overreach absent exceptional malice or abuse, none of which was demonstrated.

p. 5

Legal principles established

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  • To obtain stay under rule 5(2)(b) of the Court of Appeal Rules, an applicant must satisfy the twin principles: an arguable appeal and that the appeal would be rendered nugatory absent stay.
  • Negative orders, being incapable of execution, cannot be stayed; stay of execution lies only in respect of positive orders.
  • The Court of Appeal has no jurisdiction under rule 5(2)(a) to stay criminal proceedings pending before a subordinate court; stay powers are tethered to the proceedings or orders of the court appealed from.
  • Any intervention in a criminal trial may only occur in exceptional circumstances of malice and abuse of process, or prosecution in derogation of constitutional rights with improper intent to harass.

Court orders

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  1. 1.The applicants' Notice of Motion dated 18th December 2025 fails and is dismissed
On appeal from
High Court of Kenya at Mombasa
Mombasa High Court Criminal Revision Case No. E220 of 2025
Jurisdiction invoked
Rule 5(2)(a) of the Court of Appeal Rules, 2022 (application for stay pending an intended appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Shivji Jadva Parbat Varsani & 2 others v Republic", Case Analysis (2026). Court of Appeal Criminal Application (Mombasa) arising from Memorandum of Appeal dated 18th December 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1004/eng@2026-05-29

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.