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

be stayed in the interests of justice; that costs and incidentals of this application abide the outcome of the intended appeal, or as the Court may deem just. 2. The application is expressed to be brought under Articles 22(1), 29(a), 29(f), 49(1)(h), and 50 of the Constitution of Kenya, 2010, read together with Rules 1(2), 5(2)(a), and 61 of the Court of Appeal Rules, 2022 (this Court’s Rules). 3. The grounds upon which the application is predicated include: that the applicant, a Major in the Kenya Defence Forces (KDF), is charged before the High Court with the offence of murder; that being a person subject to the KDF Act, he challenged the jurisdiction of the conventional criminal justice system through Constitutional Petition No. E002 of 2023, which was dismissed; that Section 133 of the KDF Act vests jurisdiction in the court-martial and not the High Court in respect of criminal charges against KDF personnel; that the impugned judgment disregarded binding precedent and the doctrine of stare decisis; that unless the stay is granted, the intended appeal will be rendered nugatory as the High Court may proceed to render judgment under Sections 306 or 322 of the Criminal Procedure Code (CPC); and that the applicant stands to suffer irreparable prejudice, while the respondents will suffer no prejudice if the stay is granted. 4. The application is supported by an affidavit and a further supporting affidavit sworn by the applicant on 23rd October 2024 and 4th November 2024, respectively. The 2nd respondent opposed the motion, while learned counsel for the 4th respondent and the 1st Interested Party opposed the motion in his oral submissions at the hearing of the application. Submissions by Counsel 5. Learned counsel for the applicant, Mr. George Morara Gori, submitted that an order for stay of criminal proceedings should issue in exceptional circumstances, as outlined in Wainaina & Another v Republic (Consolidated) [2023] KECA 727 (KLR). 6. Counsel submitted that the jurisdictional question is both arguable and not frivolous, citing Attorney General & 2 Others v L.T. Benjamin Muema [2019] eKLR, which held that persons subject to the KDF Act ought to be tried within the military justice system. Counsel emphasized that jurisdiction is a threshold matter that may be raised at any stage, and unless preserved, the intended appeal will be rendered an academic exercise. 7. Mr. Solomon Naulikha, the learned Senior Assistant Director of Public Prosecution for the 2nd respondent, opposed the application through written submissions. Counsel submitted that, Article 165 of the Constitution confers upon the High Court unlimited original jurisdiction in criminal and civil matters; that Sections 3, 4, and 5 of the Penal Code as read together with the First Schedule designate the High Court as the proper forum for the trial of murder offences; that murder is not a service offence under Part VI of the KDF Act and thus does not fall within the jurisdiction of the courtmartial; that Section 211 of the Act expressly preserves the jurisdiction of civil courts to try persons subject to the Act for offences not provided for in Part VI of the Act. 8. It was further contended that granting a stay would undermine the authority of the High Court, prejudice the victims, and delay justice contrary to Article 159 of the Constitution. 9. Further opposing the application, Mr. Tororey, learned counsel for the 4th respondent and the 1st Interested Party, submitted that while the applicant was a KDF personnel at the time the offence of murder was committed, the victims were civilians. Counsel cited Article 165 of the Constitution, which grants the High Court unlimited original jurisdiction in both criminal and civil matters. Counsel concluded by submitting that the applicant’s intended appeal has no merit and should be dismissed. https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2146/eng@2025-11-28 2

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Determination 10. We have considered the application, the rival affidavits, submissions, and authorities cited. The sole issue for determination is whether the applicant has satisfied the threshold for grant of a stay of proceedings in a criminal matter. 11. This Court in the case of National Assembly of Kenya vs. Njiru & 41 others [2025] KECA 494 (KLR) stated as follows: “Stay of proceedings is a serious and grave judicial intervention because it has the effect of suspending or delaying pending proceedings.” 12. In an application of this nature, the applicable principles are settled. Rule 5(2)(a) of the Court of Appeal Rules empowers this Court to grant stay orders only in exceptional circumstances. The two limbs that must be satisfied are: a. That the intended appeal is arguable; and b. That unless a stay is granted, the appeal will be rendered nugatory. 1. This Court in Waithaka v Tribunal appointed to investigate the conduct of the Honourable Lady Justice Lucy Njoki Waithaka & another; Kenya Magistrates & Judges Association (Interested Party) (Civil Application 8 of 2020) [2020] KECA 571 (KLR) (19 June 2020) (Ruling) succinctly stated as follows: “ We note that stay of proceedings is a serious, grave and fundamental judicial action which interferes with the right of any party to conduct litigation. (See: Francis N. Githiari v Njama Limited [2006] eKLR. It impinges on the right of access to justice, right to be heard without delay and the right to a fair trial. While addressing the issue of stay of proceedings in the persuasive case of Global Tours and Travels Limited (supra), Ringera, J as he then was stated thus: “As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a degree or order appealed from is a matter of judicial discretion to be exercised in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order stay, the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal in the sense of whether or not the intended appeal will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously.” 14. While we recognize that jurisdiction is a fundamental issue, we are not persuaded that the intended appeal raises an arguable ground. Article 165 of the Constitution clothes the High Court with original jurisdiction in criminal matters, including murder, while Article 169 recognizes the court-martial as a https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2146/eng@2025-11-28 3

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subordinate court. Sections 56 and 211 of the KDF Act further preserve the jurisdiction of civil courts to try such offences. 15. Accordingly, we find no basis for the argument that the High Court lacks jurisdiction. The applicant has therefore failed to satisfy the first limb under Rule 5(2)(a). Having failed on the first limb, the Court need not consider the second. 16. For the foregoing reasons, the Notice of Motion dated 23rd October 2024 is devoid of merit and is hereby dismissed with costs to the 2nd and 4th respondents and the Interested Party. 17. Orders accordingly. DATED AND DELIVERED AT NYERI THIS 28TH DAY OF NOVEMBER, 2025. JAMILA MOHAMMED ....................................... JUDGE OF APPEAL J. LESIIT ........................................ JUDGE OF APPEAL ALI - ARONI ............................................. JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2146/eng@2025-11-28 4

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