[2015] KEHC 1848 (KLR)
The court found that the applicants did not meet the threshold for grant of stay of execution as set out under Order 42(6) of the Criminal Procedure Rules. The judgment of 21.9.15 did not direct the respondents to arrest or charge the applicants; such action remains within the respondents' prerogative. The court...
Source-derived case information.
- Citation
- [2015] KEHC 1848 (KLR)
- Parties
- Applicant: Collins Makokha; Applicant: Felix Mbuvi; Respondent: Director of Public Prosecutions; Respondent: Inspector General of Police
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition 6 of 2015
- Procedural Posture
- Constitutional Petition / Ruling on Application for Stay Pending Appeal
- Outcome
- application dismissed
- Legal Topics
- Stay of Proceedings, Right to Fair Trial, Criminal Procedure, Employment Consequences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Collins Makokha
Applicant
Felix Mbuvi
Applicant
Director of Public Prosecutions
Respondent
Inspector General of Police
Respondent
Procedural Posture
Constitutional Petition / Ruling on Application for Stay Pending Appeal
Legal Issues
- 1 Whether the applicants have met the threshold for grant of stay of execution under Order 42(6) of the Criminal Procedure Rules.
- 2 Whether there exists a positive order capable of being stayed.
- 3 Whether the applicants would suffer substantial loss if stay is not granted.
Ratio Decidendi
The court found that the applicants did not meet the threshold for grant of stay of execution as set out under Order 42(6) of the Criminal Procedure Rules. The judgment of 21.9.15 did not direct the respondents to arrest or charge the applicants; such action remains within the respondents' prerogative. The court further held that, even if the applicants are charged, the trial court is equipped to ensure a fair trial, and any loss suffered could be compensated through other mechanisms. Therefore, there was no merit in the application for stay, and it was dismissed.
Court Disposition
application dismissed
Orders
- The application for stay is dismissed.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
CONSTITUTIONAL PETITION NO.6 OF 2015
COLLINS MAKOKHA ….............................................................1ST APPLICANT
FELIX MBUVI................................................................................2ND APPLICANT
VERSUS
THE DIRECTOR OF PUBLIC PROSECUTIONS...................1ST RESPONDENT
THE INSPECTOR GENERAL OF POLICE.............................2ND RESPONDENT
R U L I N G
1. The notice of motion by the applicants dated 28. 9.15 prays for stay of this honourable court's order dated 21. 9.15 in which it dismissed their application.The same is supported by the affidavit of GEOFFREY O. YOGO, Counsel for the applicants. The substance of the said application is that if the orders are not granted herein they stand to be charged with the offence of murder which shall render them loose their employment and accuring benefits.
2. The respondent has filed grounds of opposition arguing that there was no positive order made by this court capable of execution and thus there is nothing to be stayed.
3. I have read both submissions by the parties herein and one fundamental issue is whether the application meets the threshold as set out under Order 42(6) of the Criminal Procedure Rules. The same provides that for an order of stay to be granted:
42(6) (2)(a) “the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay and
(b) Such security as the court orders for the performance of such decree or order as may ultimately be binding on him has been given by the applicant.”
4. According to the applicant the main reason why they are seeking stay pending appeal is because should they be charged in court for the criminal offence they stand to loose their job and other attendant benefits. Whereas this may be true or not, the judgment of 21. 9.15 did not direct the respondent to arrest and charge the applicants. That is the prerogative of the respondent. In any event there are other mechanism which the parties can be compensated presuming that they successfully go through the criminal trial.
5. Further should they be arrested the trail court has the mechanism within the law to process fair trial to the applicants. Both applicants as well as the victims in the alleged criminal act have rights squarely safeguarded by the constitution.
6. I think I have said much to show that I do not find merit in the application. The same is hereby dismissed.
Dated, signed and delivered this 28TH day of OCTOBER 2015.
H. K. CHEMITEI
J U D G E