The applicant in this notice of motion dated and filed on 21^st October, 2010, Nicholas Muriuki Kangangi is a police officer. The record shows that as he was in the course of investigating alleged commission of crimes by certain people, a complaint was raised against him and he was in turn arrested by the Kenya Anti Corruption Commission personnel and charged in the subordinate court with two counts of soliciting for a benefit contrary to Section 39 (3) as read with Section 48 (1) of the Anti Corruption and Economic Crimes Act No. 3 of 2003, and a third count of receiving a benefit contrary to Section 39 (3) (a) as read with Section 48 (1) of the Anti Corruption and Economic Crimes Act No. 3 of 2003. When he was called upon to plead to the offences, he raised constitutional issues claiming that his rights under the Constitution had been violated in that he was held in police custody for over 5 days without him being produced in court as required by the law, which delay was not explained; that he was taken to court by the Anti-Corruption officers contrary to Section 35 of the Anti Corruption Action No. 3 of 2003 which required the matter to be referred to the Attorney General first; that he was being unlawfully prosecuted by police officers who are not persons envisaged to prosecute under the Anti Corruption and Economic Crimes Act – Act No. 3 of 2003. The learned magistrate was at that juncture required normally, to see if there were constitutional issues raised which the High Court, being the Constitutional court could decide, and if so, to frame the same issue(s) for determination of the High Court. However, the subordinate court, instead of doing so, in a ruling delivered on 28^th April, 2008, dismissed the complaints raised and directed the hearing to proceed. The applicant was not satisfied. He moved to the superior court through his advocates vide a letter dated 23^rd May, 2008 seeking a revision of the subordinate court’s ruling. That letter, together with the subordinate court’s ruling were placed before Ojwang J. who, after hearing the applicant’s counsel, Mr. Mogeni and Mr. Makura, the learned State Counsel who conceded the review application, allowed the review, making four orders the most important ones being that:

“1.     The applicant shall forthwith and in any case within 14 days of the date hereof – lodge an application in the High Court on the relevant constitutional question.

“In this case, I find that there was no unlawful arrest or detention and I find that the Petitioner has not proved that there was any violation of his rights as pleaded. I therefore dismiss the Petition with costs to the Respondent”.

“1.     The application be certified urgent and the same be heard on priority basis.

          We have set out above the facts of the matter before us. The law that guides this Court in deciding a matter brought like this matter pursuant to Rule 5 (2) (b) of this Court’s Rules is now well settled. The applicant needs to demonstrate first that the appeal or the intended appeal, if one has not been filed, is arguable, that is to say, it is not frivolous. Second, if the appeal is arguable, then the applicant has to further demonstrate that, the success of the appeal, were it to succeed, would be rendered nugatory by our refusal of the application. We have considered the issues raised in the application which we are told are the same issues raised in the appeal. We do accept that the issues as to whether in law, the officers of the Kenya Anti Corruption Commission should arrest and directly produce into the court for purposes of prosecution, a suspect, without referring the matter to the Attorney General pursuant to the provisions of the Kenya Anti Corruption Act – Act No. 3 is a matter that is arguable. In saying so, we are not in any way saying it is a matter that must succeed on appeal. All we are saying is that it is an issue that this Court needs to deliberate upon. We do not need more than one arguable point as in law one arguable point is enough – see Judicial Commission of Inquiry into the Goldenberg Affairs & 3 others v. Kilach [2003] KLR 249 at page 264.

          On the nugatory aspect, much as we detest the delay that has been occasioned by the wrangles in court, we note that the applicant has all along acted promptly in pursuit of his legal rights. However, it is clear to us that should we reject this application, the proceedings in the subordinate court will proceed with the possible result that he may be sent to prison such that by the time his appeal is finalized, he will have suffered imprisonment, however short the term may be. In those circumstances, though there has been a delay in finalizing the criminal case, we are constrained to stay the hearing till the appeal already filed is finalized. In doing so, we are also anxious to have the criminal case heard and finalized as early as possible. That would only be accomplished if the appeal is finalized early. In the event, and to facilitate the same, we direct the Court of Appeal Registry to set down the appeal already filed for hearing on priority basis.

          The sum total is that the notice of motion dated and filed on 21^st October, 2010 succeeds. There shall be stay of proceedings in Nairobi Chief Magistrate’s Anti Corruption Case No. 3 of 2007 pending the hearing and determination of the appeal filed in this Court. The costs of this application to abide the outcome of the appeal.

          Dated and delivered at Nairobi this 28^th day of January, 2011.

E. O. O’KUBASU