https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1025

Director of Criminal Investigations & another v Muturi Gakuo & Kibara Advocates & 3 others (Civil Application E079 of 2025) [2026] KECA 1025 (KLR) (29 May 2026) (Ruling) Neutral citation: [2026] KECA 1025 (KLR) Republic of Kenya In the Court of Appeal at Mombasa Civil Application E079 of 2025 AK Murgor, KI Laibuta & GW Ngenye-Macharia, JJA May 29, 2026 Between Director of Criminal Investigations 1st Applicant The Land Registrar Mombasa 2nd Applicant and Muturi Gakuo & Kibara Advocates 1st Respondent Gabriel N Gakuo 2nd Respondent Kenneth N Kibara 3rd Respondent Naomi H Kinuva 4th Respondent (An application for injunction and stay pending Appeal against the Ruling in Mombasa High Court Criminal Division (W. K. Micheni, J.) delivered on 24th July 2025 in Mombasa HCCR Revision No. E018 of 2025) Ruling 1.The Applicants, the Director of Criminal Investigations and The Land Registrar, Mombasa, have brought this Notice of Motion dated 21st August 2025 against the Respondents, Muturi Gakuo & Kibara Advocates, Gabriel N Gakuo,Kenneth N Kibara and Naomi H Kinuva pursuant to Articles 50, 159 (2) of the Constitution, Section 26(2) and 38(d) of The Court of Appeal (Organization and Administration) Act, Rules 5(2)(a), 20(2), 40, 43, 44, 49 and 61 of the Court of Appeal Rules seeking inter alia:a.That there be a stay of the Ruling and Orders of 24th July 2025 delivered by the High Court allowing the Respondents’ application dated 10th March 2025 and at the same time dismissing the Applicants application for joinder dated 18th March 2025 pending the hearing and determination of the application and the intended Appeal; andb.That there be an injunction and stay of execution of Ruling and Orders of 24th July 2025 allowing the Respondents’ application dated 10th March 2025 and at the same time dismissing the Applicants’ application for joinder dated 18th March 2025 pending the hearing and determination of the application and the intended Appeal. 2.The Applicants’ Motion is brought on grounds that: on 24th July 2025, the High Court delivered a ruling allowing the Respondents’ application dated 10th March 2025, while at the same time dismissing the Applicants’ application for joinder dated 18th March 2025; that the Applicants were aggrieved by the ruling and promptly filed a Notice of Appeal dated 1st August 2025; that the High Court below is yet to supply the Applicants with a certified copy of the typed proceedings and the ruling to enable them to file their Memorandum and Record of Appeal; that the intended appeal challenges the entire ruling and orders as they will hinder or obstruct ongoing investigations, and pose a risk of disposal, interference with, or alteration of crucial evidence which the Applicants intend to preserve and rely upon to prosecute the matter to its logical conclusion; that, should the Respondents proceed to execute the decree, the intended appeal shall be rendered nugatory; and that, unless the present Application is heard forthwith and an order of injunction, stay of proceedings and execution of the impugned orders is issued pending the hearing of this application and the intended appeal, the Applicants stand to suffer great prejudice. 3.The application is supported by the affidavit of Detective Sergeant Nicolaus Osuri Otieno, which reiterated the grounds in the application, and further deposed that: the Applicants are apprehensive that there is an imminent and real threat of execution as the Respondents have already extracted a decree dated 19th August 2025. It was further contended that the Respondents’ actions shall hinder and obstruct ongoing investigations contrary to Article 245 of the Constitution; and that execution poses a real risk of disposal, interference with, or alteration of crucial evidence, including destruction of the impugned title documents, which are exhibits in the ongoing criminal investigation. 4.It was further contended that the Deed of Registration recovered is partially a State Department for Lands and Physical Planning document containing entries numbered 1 to 13, whereas the attached paper containing entries numbered 14 to 16 are forgeries, and that the Chief Land Registrar has further confirmed that the person of Omar Awadh was never registered as proprietor of L.R. No. 287 Section V South East Mazeras CR. No. 6302 (the subject property); and that the referenced title document ceased to exist as one parcel upon the resultant subdivisions into 17 sub-plots, which have been duly registered by the State Department for Lands and Physical Planning, besides the earlier surrender of Sub-division No. 1076 measuring 16.19 Ha to the Government of Kenya (now Sub-divisions Nos. 1077, 1078 and 1079). 5.Furthermore, the allegation and finding of lack of full disclosure before the trial Court was unmeritorious, since the Notice of Motion dated 6th March 2025 candidly disclosed, at paragraphs 11 and 12, the pending matters before the Mombasa Chief Magistrate’s Court. 6.The Applicants went on to contend that the High Court was in error in dismissing the application for joinder of the Interested Party, given the disclosures made at paragraphs 3 to 6 of High Court Criminal Revision Case No. E018 of 2025; that the Respondents were informed of the ongoing investigations under DCI Headquarters Inquiry File No. 116 of 2024 in respect of the Title to the subject property, which is also the subject of Mombasa Miscellaneous Criminal Application No. E174 of 2025; and that, in the public interest, the orders of injunction and stay of the entire Ruling in Mombasa High Court Criminal Revision No. E018 of 2025 be granted. 7.Annexed to the application is a Notice of Appeal dated 1st August 2025 and a draft memorandum of appeal in which the Applicants asserted that the learned Judge was in error in finding that the Respondents had met the threshold for review on the basis of alleged non-disclosure of matters, and in holding that the Applicants failed to satisfy the requirements for joinder despite having demonstrated that they had a legitimate personal interest in the matter, and would suffer irreparable prejudice; and that the Judge also failed to pronounce herself on the doctrine of res judicata, particularly given that the parties and issues before the trial court were neither similar to nor directly in issue with those previously canvassed before the Environment and Land Court, this Court and the Supreme Court. 8.The Applicants further asserted that the Judge disregarded the clear principle and rationale underlying Section 193A of the Criminal Procedure Code, thereby improperly conflating criminal proceedings with civil disputes, and erroneously relied on matters not forming part of the court record or within the court’s purview; and that the Judge failed to appreciate the nature and significance of the impugned document relating to the subject property, which was the subject of search and seizure orders issued in MSA CM’s Criminal Misc. Application No. E174 of 2025. 9.The learned Judge was further faulted for elevating advice of the Office of the Director of Public Prosecutions under Article 157(4) of the Constitution, notwithstanding that investigations were still ongoing, and disregarded critical issues concerning missing land records belonging to the 2nd Applicant allegedly in the possession of the Respondents, and by subsequently declaring the Applicants’ assertions an abuse of court process, among other grounds. 10.In response, the 1st to 4th Respondents filed a Replying Affidavit sworn by Naomi H. Kinuva, in which she deposes that this matter emanates from Mombasa HCCRREV No. E018 of 2025, a criminal revision and that, therefore, the provisions invoked were in respect of Criminal Procedure Code. It was averred that the impugned proceedings arose from an ex parte order issued on 7th March 2025 in Mombasa Misc. Criminal Application No. E174 of 2025, whereby the Magistrate’s Court directed the 1st Applicant to take custody of the original title deed to the subject property from the 1st Respondent; that, in response, the Respondents sought revision before the High Court and, owing to the criminal nature of the underlying proceedings, this Court’s jurisdiction to entertain a civil application arising from criminal proceedings does not arise, thereby rendering the present application incurably defective for offending the mandatory provisions of Rule 60 of the Court of Appeal Rules, 2022, and therefore a nullity ab initio, and incapable of being cured by the inherent jurisdiction of the Court. 11.It was further deposed that the application demonstrated the Applicants’ and the Attorney General’s improper willingness to abuse the court process with the aim of interfering with the subject matter of Supreme Court Petition No. E009 of 2024, which is currently pending judgment before the Apex Court, and that, on this basis alone, the Application should be struck out; and that the Applicants have not demonstrated that the intended appeal is arguable or that it would be rendered nugatory. 12.Furthermore, it was deposed that the Applicants were in deliberate and continuing disobedience of a subsisting order in HCCRREV No. E018 of 2025, which required the release of the title deed to the subject property and that, therefore, they are not entitled to benefit from this Court’s discretionary protection; that the ownership of the suit property had already been the subject of litigation before the Environment and Land Court and subsequently in Mombasa Civil Appeal No. E028 of 2022, where this Court in a Judgment dated 23rd February 2024 confirmed that the subject property belonged to the 1st Respondent’s client; that an appeal from this Court’s decision is currently pending judgment in Supreme Court Petition No. E009 of 2024 and that, therefore, this Court is functus officio on the issue of ownership of the subject property; and that there is no risk of interference with the title deed by the Respondents or the legal owner, and no evidence of interference has been adduced beyond bare assertions. 13.On the Applicants’ claim of ongoing investigations, it was averred: that the Applicants’ prayers for injunction pending appeal are wholly misplaced, as they have not specified the nature of the injunction sought; and that the 2nd Applicant and the Attorney General did not disclose to the High Court that the Supreme Court had already barred the introduction of new evidence through the 2nd Applicant in Petition No. E009 of 2024, yet they nonetheless filed a Notice of Motion dated 28th August 2024 seeking to adduce such evidence, and which was dismissed on 13th December 2024, and which decision remains unreviewed and unvaried. 14.Both parties filed written submissions and, when the application came up for hearing on a virtual platform, learned counsel Mr. Kimei appeared for the Applicants while learned counsel Ms. Kinuva appeared for the Respondents. 15.In their written submissions, the Applicants submitted that, although the matter arises from criminal proceedings, more specifically, an investigation in which they obtained orders in Mombasa Misc. Criminal Application No. E174 of 2024 to recover a document referred to as the “original title deed”, there is no express legal provision outlining the procedure for stay applications arising from criminal review decisions, such as this application before the Court. They therefore urged the Court to exercise its inherent jurisdiction to prevent injustice, notwithstanding that they had invoked Rules 5(2)(a), 20(2), 40, 43, 44, 49, and 61 of the Court of Appeal Rules. On jurisdiction, the Applicants relied on the case of Mutune vs Republic (Criminal Application E290 & E292 of 2024) where this Court disallowed an objection grounded on the limited scope of Rule 5(2)(a). Rule 60 was also cited to support the proposition that the Court has jurisdiction to entertain appeals and related applications arising from criminal matters; and that the Respondents’ argument that the matter is civil has no basis, since the dispute arose directly from a criminal investigation into alleged unlawful possession of public documents. 16.Regarding the question of whether the appeal was arguable, the Applicants submitted that the draft Memorandum of Appeal raises nine substantial grounds impugning the decision of the High Court, including errors of fact and law, and improper exercise of judicial power. They contended that the appeal was arguable. 17.As to whether the appeal would be rendered nugatory, the Applicants submitted that the “original title deed” in question is actually a closed office copy that legally remains in the custody of the Land Registrar, as it constitutes a public record. They contend that handing this document to private persons undermines the integrity of public land records, which cannot be remedied by damages; that, further, the document is a critical exhibit in an ongoing criminal investigation; and that releasing it created a real risk of destruction, tampering, or loss, which would irrevocably impair the investigation. This Court’s decision in the case of County Secretary of Kajiado & 47 Others vs SRC [2021] eKLR was relied upon for the proposition that the nugatory effect should be assessed by asking whether the act sought to be stayed is reversible or compensable by damages. Applying that reasoning, it was submitted that handing over the document to the Respondent is neither reversible nor compensable, and would therefore render the appeal nugatory unless stay is granted. 18.On their part, the Respondents oppose the Applicants’ Motion on the grounds that it is misconceived, incompetent, and an abuse of the court process; that the reliefs sought are civil injunctive orders and stay arising from Mombasa High Court Criminal Revision No. E018 of 2025, a criminal proceeding initiated under the Criminal Procedure Code rather than a civil dispute. To support the principle that procedural compliance is indispensable, the Respondents rely on the cases of Telkom Kenya Limited vs John Ochanda [2014] KECA 600, where the Court held that disregard of proper procedure undermines substantive justice, and the foundational decision in Owners of the Motor Vessel “Lillian S” vs Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR), which established that jurisdiction is everything and that, once a court determines that it lacks jurisdiction, it must immediately down its tools. 19.Regarding the question of whether the Applicants have satisfied the criteria for stay or injunction pending appeal, the Respondents submitted that, even if the Court were to assume jurisdiction, the Applicants have failed to demonstrate that the appeal is arguable with a likelihood that it could be rendered nugatory; that the Applicants have not demonstrated any genuine grounds of appeal, particularly because the ownership of the subject property is already secured and preserved under the authority of the Supreme Court in Petition No. E009 of 2024; that, in addition, the Applicants have engaged in continued disobedience of the High Court’s orders in HCCRREV No. E018 of 2025 requiring them to release the title deed; and that their blatant refusal to comply with lawful court orders disqualifies them from seeking equitable relief from this Court. 20.We have considered the motion as well as the parties’ submissions. Before determining the question of whether or not to grant the orders of injunction and stay of execution sought, it is necessary for us to first determine the preliminary objection on jurisdiction that has been raised. It is the Respondents’ argument that the impugned decision emanated from criminal revision proceedings, but that the Applicants have improperly invoked Rule 5 (2) (b) of this Court’s Rules,which is only applicable to civil proceedings. They further contend that, although Rule 5(2)(a) of this Court’s rules could be invoked for criminal proceedings, it is limited to applications for release on bail and suspension of warrants of distress, and was therefore inapplicable to the circumstances of this application; and that, given the foregoing, this Court lacked jurisdiction to grant the orders sought. 21.In the case of Republic vs The Kenya Anti-Corruption Commission & 2 Others, [2009] KECA 387 (KLR) Tunoi, JA. (as he then was), dealing with the jurisdiction of the Court to grant an order of stay in criminal proceedings, expressed:“It would appear logical to say that it seems that the Court can [grant an order of stay] if petitioned on time to stay the order and/or decree of the superior court which will in turn have the effect of staying the criminal proceedings in the superior court. Further, as to whether it can do so or not depends on the particular circumstances of each case and especially so, what exactly the applicant is asking the Court to do and how the Court is approached.” 22.More recently, this Court addressed an objection similar to the one raised here in the case of Mutune vs Republic (supra) and held:“We begin with the determination of the question as to whether the applications are incompetent for being brought pursuant to rule 5 (2)(a) of the Court of Appeal Rules… In as much as we would agree with the respondents that the scope of rule 5 (2) (a) is limited, we are reluctant to bar the prosecution of these applications on that ground alone when the Court itself has held divergent views as to whether a similar application can be brought under rule 5 (2) (b)… Further, acceding to the objection by the respondents would amount to burying substantive issues under a heap of technicalities… This objection is therefore disallowed.” 23.Though arising from criminal proceedings, the instant application brought under Rule 5 (2) (a) of the Court of Appeal Rules seeks orders of injunction and stay of execution, which are ordinarily granted under Rule 5 (2) (b). However, given the peculiar nature of the application and the orders sought, Rule 5 (2) (b) is the more appropriate provision to apply in the circumstance. Guided by the afore-cited authorities and the orders sought, we consider it efficacious to invoke the inherent jurisdiction of this Court to apply Rule 5 (2) (b) and the attendant principles to this application in view of the issues raised. Consequently, the objection is dismissed. 24.That said, the principles governing applications for stay or injunctive relief pending appeal are well settled. An applicant must demonstrate that the intended appeal is arguable, and that it will be rendered nugatory if the orders sought are not granted. 25.On Arguability, this Court held in the case of R.F.S. vs J.D.S,[2013] KECA 366 (KLR)“Now an appeal is said to be arguable when it contains grounds, points or issues that can genuinely be asserted, on which there can be divergent legal or factual positions of some merit worthy of juridical investigation and determination. To succeed, it is enough that even a single, solitary ground of such description exists and the same need not be one that must necessarily succeed in an appeal.” 26.In the case of Cleophas Wasike vs Mucha Swala [1984] KECA 55 (KLR) this Court held that an applicant need not show that his appeal has an overwhelming probability of success, but it need only be sufficiently demonstrated that there is merit in the appeal. 27.In the draft memorandum of appeal, among the issues raised is that, notwithstanding the stipulations of Section 193A of the Criminal Procedure Code, the learned Judge improperly conflated criminal proceedings with civil disputes, and impermissibly relied on matters not forming part of the court record; and that, further, the Judge failed to appreciate the nature and significance of the impugned document relating to the subject property, which was the subject of search and seizure orders. Without interrogating them or making definitive findings at this interlocutory stage lest we embarrass the bench that will ultimately determine the issues on appeal, we are satisfied that these are arguable issues. 28.On the nugatory limb, the Applicants are called upon to demonstrate that, unless the orders sought are granted, the intended appeal will be rendered nugatory. The Applicants claim that release of the title deed will compromise ongoing investigations and risk destruction or alteration of evidence. The Respondents argue on the other hand that these claims are speculative and unsupported by evidence. 29.It is settled law that to satisfy the nugatory test, an applicant requires to show real and likely prejudice, rather than speculative conjecture. See Michael Sistu Mwaura Kamau vs Ethics and Anti-Corruption Commission, Public Prosecutions, Attorney General & Inspector General of the National Police Service [2015] KECA 331 (KLR) where the court held that proceedings before a court of law should not be stopped based on speculation or apprehension, and that an applicant must be able to point out an outright illegality or breach, or violation which does not require protracted arguments. 30.In this case, the Applicants’ claim is that, in the event the title document is handed over to the Respondents, there is the risk that it will be tampered with or destroyed. The Applicants have not told us in what way or for what reason the Respondents would go to lengths to interfere with the document, particularly since they rely on the same title document to establish their registered ownership to the subject property. No concrete material has been placed before us establishing imminent risk of destruction or tampering as claimed. But, in the event the intended appeal was to succeed, when called upon, the Respondents can always return it to the Applicants. As a consequence, without any basis whatsoever established for such claims, we are not satisfied that the nugatory aspect of the orders sought has been surmounted by the Respondents. 31.In sum, the Applicants have failed to satisfy the twin requirements of Rule 5 (2) (b) with the result that the Notice of Motion dated 21st August 2025 is without merit and is hereby dismissed with costs to the Respondents.It is so ordered. DATED AND DELIVERED AT MOMBASA THIS 29TH DAY OF MAY, 2026.A. K. MURGOR.................................JUDGE OF APPEALDR. K. I. LAIBUTA CArb, FCIArb..................................JUDGE OF APPEALG. W. NGENYE-MACHARIA.................................JUDGE OF APPEALI certify that this is the true copy of the originalSignedDEPUTY REGISTRAR