Omenda & 6 others v Ethics & Anti-Corruption Commission & 2 others
The bottom line
#Supreme Court granted stay of criminal trial pending appeal, finding arguable case and risk of rights violation.
What this practically means
#The Supreme Court stopped a criminal trial against former Geothermal Development Company employees while their appeal is heard. The Court said the employees showed they have a strong legal argument that would be meaningless if the trial went ahead first. Even though no one opposed the request, the Court still checked that it was justified.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Do the applicants satisfy the criteria for stay of execution of the Court of Appeal decision pending appeal?
- 2.Should the applicants be granted leave to file the petition excluding the certified copy of the order and proceedings of the Court of Appeal?
Key legal issues
#Whether the applicants satisfied the criteria for grant of stay of execution pending appeal.
The applicants demonstrated an arguable case that would be rendered nugatory without a stay, as the Court of Appeal decision subjected them to a criminal trial potentially violating their constitutional rights.
The Court considered that the applicants' appeal raised constitutional issues regarding fair trial and equal protection of the law. The Court found that the applicants had shown an arguable case and that the subject matter of the appeal (their personal freedom) would be rendered nugatory if the stay was not granted, as they would be forced to undergo a criminal trial before the appeal was heard.
Whether the applicants should be granted leave to file the petition excluding the certified copy of the order and proceedings of the Court of Appeal.
The Court declined to consider this prayer as the applicants did not invoke the relevant rules or provide any explanation or justification.
The Court noted that Rules 33(5) and 33(6) of the Supreme Court Rules allow for exclusion or supplementation of documents, but the applicants neither invoked these provisions nor gave any explanation or justification in their application, supporting affidavit, or submissions. Therefore, the Court could not consider the prayer.
Legal principles established
#- Courts do not automatically grant unopposed applications; they must check the application has merit.
- To get a stay pending appeal, you must show an arguable case and that the appeal would be useless without the stay.
- A stay can be granted if the subject matter (like personal freedom) would be lost by going to trial first.
- Applicants must properly cite the court rules and explain any special requests, like filing without certain documents.
- Appeals from the Court of Appeal to the Supreme Court under Article 163(4)(a) can raise constitutional issues like fair trial rights.
Court orders
#- 1.The execution of the decision of the Court of Appeal [Warsame, Makhandia & Murgor JJ.A] in Civil Appeal No.313 of 2017 delivered on 20th September 2019 be and is hereby stayed pending the hearing and determination of the appeal by this Court
- 2.Costs to abide the outcome of the main appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Court of Appeal
- Civil Appeal No. 313 of 2017
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
Relief refused
#Leave to file the petition excluding the certified copy of the order and proceedings of the Court of Appeal
The applicants neither invoked the Court's jurisdiction under Rules 33(5) & 33(6) nor gave any explanation or justification for the prayer sought.
Costs
Costs to abide the outcome of the main appeal.
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.
It is not automatic that for any unopposed application, the Court will as a matter of cause grant the orders sought. It behooves the Court to be satisfied that prima facie, with no objection, the application is meritorious and the prayers may be granted
We therefore find that the applicants have demonstrated an arguable case which would be rendered nugatory in the absence of our intervention by way of granting the orders sought
The execution of the decision of the Court of Appeal [Warsame, Makhandia & Murgor JJ.A] in Civil Appeal No.313 of 2017 delivered on 20th September 2019 be and is hereby stayed pending the hearing and determination of the appeal by this Court
Costs to abide the outcome of the main appeal.
Key timeline
#Practical implications
#Unopposed applications need merit check
Do not assume an unopposed application will be granted. The court must still be satisfied that it is meritorious. Prepare full arguments even if the other side does not respond. Also, when seeking special relief (e.g., filing without a certified order), explicitly invoke the relevant rules and justify the prayer in your application and submissions.
Stay of criminal proceedings for employees
If your company or employees are facing criminal charges based on a procurement decision, you may seek a stay of trial from the Supreme Court if the Court of Appeal allowed the prosecution. The key is showing an arguable constitutional point (e.g., fair trial rights) and that the trial would make the appeal pointless. Engage counsel early to build that case.
Protect your rights during appeal
If you are ordered to stand trial after a court initially stopped the case, you can ask the Supreme Court to pause the trial while your appeal is heard. You must show that your appeal raises serious legal issues and that going to trial first would harm your rights in a way that cannot be undone later. The court will weigh the risk of an unfair trial.
Frequently asked questions
#What is a stay of execution in Kenya?+
A stay of execution is a court order that temporarily stops a previous court decision from being enforced. In criminal cases, it can pause a trial or prosecution while an appeal is being decided. The person asking for the stay must show they have a strong case and that without the stay, the appeal would be useless.
Can I appeal a Court of Appeal decision to the Supreme Court in Kenya?+
Yes, but only in certain cases. Under Article 163(4)(a) of the Constitution, you can appeal as of right if the case involves a constitutional issue or a matter of general public importance. The Supreme Court will decide if your case qualifies. This case was allowed because it raised fair trial and equal protection concerns.
What does it mean that an application is unopposed in Kenya?+
An unopposed application means the other party did not file any response or objection. However, the court does not automatically grant it. The judge must still be satisfied that the request has legal merit and is justified. The Supreme Court in this case emphasized that unopposed does not mean automatic approval.
How do I get a stay pending appeal in Kenya?+
You must file an application in the appellate court (e.g., Supreme Court) showing two things: first, that you have an arguable appeal (a legal point worth arguing), and second, that without a stay, the success of your appeal would be rendered nugatory (pointless). The court will also consider the balance of inconvenience and public interest.
Cite this brief
#Cite this brief
Caselaw, "Omenda & 6 others v Ethics & Anti-Corruption Commission & 2 others", Case Analysis (2020). Application 31 of 2019. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2020/71/eng@2020-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.