PM Mwilu, SC Wanjala, NS Ndungu, I Lenaola, W Ouko
Dande & 3 others v Director of Public Prosecutions & 2 others
Dande & 3 others v Director of Public Prosecutions & 2 others (Petition 4 (E005) of 2022)  KESC 23 (KLR) (Civ) (19 May 2022) (Ruling)
The Supreme Court cannot grant an order of stay of proceedings pending hearing in the Magistrates Court
The applicants filed the instant application praying that pending the hearing and determination of Petition No. 4 of 2022, a conservatory order be granted staying the criminal proceedings in Nairobi Chief Magistrates Criminal Case No. 1735 of 2016 Republic v Edwin Harold Dayan Dande & 3 Others. The applicants submitted that; the court had jurisdiction to grant interlocutory reliefs pending the hearing and determination of the appeal; they had an arguable case with a high probability of success; the 1st respondent, in abuse of his prosecutorial powers had instituted charges against them contrary to article 157 of the Constitution of Kenya, 2010 (Constitution); and that unless the criminal proceedings before the subordinate court were stayed, the intended appeal would be rendered nugatory.
- Whether the Supreme Court could grant an order of stay of proceedings pending hearing in the Magistrates Court.
- What was the distinction between the Supreme Courts and the Court of Appeals jurisdiction to grant interlocutory orders of stay in criminal proceedings?
- What were the circumstances in which an order for stay could be issued?
- What was the nature of an arguable appeal?
- What was the effect of failure to file responses to an application within timelines issued by a deputy registrar during pre-trial?
1. At the Court of Appeal, the applicants only challenged the exercise of prosecutorial powers of the 1st respondent under article 157 of the Constitution. Being that the appeal before the Court of Appeal and its determination dealt squarely with the interpretation of article 157, the appeal was properly before the court in terms of article 163(4)(a) of the Constitution.
2. The courts jurisdiction to grant interlocutory orders of stay of proceedings was derived from section 21(2) of the Supreme Court Act which provided that in any proceedings, the Supreme Court could make any ancillary or interlocutory orders, including any orders as to costs that it thought fit to award. Rule 5(2)(a) of the Court of Appeal Rules provided that the consideration was that the applicant could only apply for stay of criminal proceedings upon conviction and sentence either by the subordinate court, or by the High Court.
3. An order for stay of criminal proceedings was not granted as a matter of course but upon the sparing exercise of judicial discretion and only in the most exceptional of circumstances.
4. An order of stay would be granted in the following instances;
- the appeal or intended appeal was arguable and not frivolous;
- unless the order of stay sought was granted, the appeal or intended appeal, were it eventually to succeed, would be rendered nugatory; and
- it was in the public interest that the order of stay be granted.
5. An arguable appeal was not one that had to necessarily succeed, but was simply one that was deserving of the courts consideration; what had to be avoided was to render the appeal, if successful, nugatory or an academic exercise. The court, in exercising its discretion, balanced between the lower and the higher risks of injustice and no definitive conclusions ought to be made as that could only be in the appeal and not in an application for stay.
6. Under article 163(4) of the Constitution and sections 15, 16 and 17 of the Supreme Court Act, only an appeal from the Court of Appeal could be entertained by the Supreme Court, as of right, if it involved the interpretation or application of the Constitution or where it was certified that a matter of general public importance was involved.
7. It was fairly elementary that the court could only grant an order of stay of a decree or order of the Court of Appeal or stay of further proceedings in the Court of Appeal but not of proceedings pending hearing in the Magistrates Court, as sought in the instant application. Reference to any other court or tribunal as prescribed by national legislation in article 163(3)(b)(ii) was definitely not reference to the Magistrates Court.
8. The petition filed by the applicants on March 11, 2022 only challenged the decision of the Court of Appeal and not that of the Magistrates Court. As a matter of fact, no decision was made by the latter to warrant any challenge in the High Court.
9. Pre-trial directions in the instant matter were issued by the Deputy Registrar on March 11, 2022, therein, the respondent was to be served with the application and was in turn to file a response within 7 days. Unfortunately, parties in defiance of the directions, and after being issued with the ruling notice on May 4, 2022, continued to file responses up to the eleventh hour including as late as May 11, 2022. That practice was irregular and unacceptable. The court did not take into consideration in the instant ruling, submissions irregularly filed.