Republic v The Chief Magistrate, Engineer Law Courts & 2 others

2. 3. 4. a. That this application be certified as urgent and the same be heard on a priority basis. [Spent] b. That pending the hearing and determination of this application inter partes, this honourable court be pleased to grant a temporary stay of execution of the orders contained in the Ruling delivered on 10th March, 2026. c. Pending hearing and determination of the appeal against the decision of this Honourable Court delivered on 10th March, 2026, this Honourable Court be pleased to stay execution of the orders contained in this said ruling. The application is premised on the following grounds: a. That this Honourable Court delivered a ruling on 10th March, 2026, dismissing the Judicial Review application by the 1st, 2nd, 3rd, 4th and 5th ex parte applicants, exposing them to criminal trial in the Engineer Court. b. That being dissatisfied with the said Ruling, the 1st, 2nd, 3rd, 4th and 5th Exparte Applicants have preferred a substantive Appeal before the Court of Appeal with overwhelming chances of success. c. That the continued prosecution of the 1st, 2nd, 3rd, 4th and 5th Exparte applicants in Engineer Criminal Court in Criminal Cases Nos. E139, E173, and E127 of 2025 involving the Republic vs Paul Kimani Nyoro and Jesse Mburu and the Republic vs. -John Gitau Kanoga, is a violation of their basic and fundamental constitutional rights to a fair trial as enshrined under Article 50 of the Constitution of Kenya 2010 and is likely to prejudice the outcome of the pending Court of Appeal in Civil Appeal No. E051 of 2023 at Nakuru Court of Appeal. d. Therefore, substantial injustice may occur if the criminal proceedings continue while the Court of Appeal deliberates on the ownership of Land Parcel Number Nyandarua/ Njabini1/615, 10306, 90, 91, and 142. e. The orders of prohibition and certiorari to prevent the DPP from continuing with and an order of Certiorari to quash the decision are now pending on Appeal before the Court of Appeal. The respondents opposed the application on the following grounds: a. There were no negative orders issued in the impugned judgment. b. The application lacks merit. The applicants are requesting that this court's judgment be stayed until their filed appeal is decided. In their rejected application—part of the impugned judgment—they sought to halt proceedings in several cases, but the court refused. Dissatisfied, they appealed to the Court of Appeal, asking for the orders to be suspended. I stated in paragraphs 4 and 5 of the judgment: 4. I have examined the application, the replying affidavit from the interested party, and submissions from both sides. The first point to note is that the applicants wrongly assume the trial magistrates cannot make correct decisions. This is a mistaken conclusion, as the magistrates are in a better position than this court to decide the issues at hand, for they will be seized of all the material evidence. The applicants need only present their arguments and evidence to the trial courts, which are presided over by competent judicial officers. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8435/eng@2026-06-17 2

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5. 5. The application before me will not only convolute the issues but also delay the resolution of the disputes before the courts. The application, therefore, lacks merit and is accordingly dismissed. Section 193A of the Criminal Procedure Code provides: Notwithstanding the provisions of any other written law, the fact that any matter in issue in any criminal proceedings is also directly or substantially in issue in any pending civil proceedings shall not be a ground for any stay, prohibition or delay of the criminal proceedings. 6. Negative orders are orders that are incapable of execution orders that are incapable of execution. The Court of Appeal in Co-operative Bank of Kenya Limited v Banking Insurance & Finance Union (Kenya) [2015] eKLR held that: “ Following that approach of looking at the nature of the orders even before delving into the said principles in a rule 5(2) (b) application the Court has identified negative orders as orders that are incapable of execution. Consequently, an order for stay of execution cannot be issued in respect of such an order. That was the position in Executive Estates Limited v Kenya Posts & anor [2005] 1 EA 53 where it was stated: ‘… The order which dismissed the suit was a negative order which is not capable of execution…’ 7. The dismissal orders in the challenged judgment cannot be executed. 8. This court cannot determine the likelihood of the appeal's success. That falls under the jurisdiction of the Court of Appeal, where this application should have been filed. 9. Based on the analysis above, I conclude that the requested orders cannot be granted. Therefore, I find the application lacks merit and dismiss it with costs. DELIVERED AND SIGNED AT NYANDARUA, THIS 17TH DAY OF JUNE 2026 KIARIE WAWERU KIARIE JUDGE. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8435/eng@2026-06-17 3

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