https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1501

Director of Public Prosecutions v Ndinyo alias Pnnoelle (Criminal Appeal (Application) E065 of 2025) [2026] KECA 1501 (KLR) (24 July 2026) (Ruling) Neutral citation: [2026] KECA 1501 (KLR) Republic of Kenya In the Court of Appeal at Mombasa Criminal Appeal (Application) E065 of 2025 AK Murgor, KI Laibuta & JM Ngugi, JJA July 24, 2026 Between Director of Public Prosecutions Applicant and Noel Naliaka Ndinyo alias Pnnoelle alias Noelle Respondent (An application for stay of the orders of the High Court pending hearing and determination of an Intended Appeal from the Ruling and Order of the High Court of Kenya at Mombasa (W. Kagendo, J.) given on 24th October 2025 in High Court Criminal Revision No. E216 of 2025) Ruling 1.The Applicant, the Director of Public Prosecutions, has brought this Notice of Motion dated 20th November 2025 under Article 164(3), Article 27, Article 31 and Article 50(2)(j) of the Constitution, Rule 1(2), Rule 5(2)(a), Rule 33 and Rule 49 of the Court of Appeal Rules, 2022, Section 361(7) of the Criminal Procedure Code seeking, inter alia: orders of stay of the Ruling in High Court Criminal Revision No. E216 of 2025 issued on 24th October 2025 and the criminal proceedings against the Respondent in Shanzu MCCR/E359/2025 - Republic vs Noel Naliaka Ndinyo alias Pnnoelle alias Noelle pending hearing and determination of this application and the intended appeal; and that there be no orders as to costs. 2.The Applicant’s Motion is brought on the grounds that: the Respondent is charged in criminal proceedings in Shanzu MCCR/E359/2025, Republic vs Noel Naliaka Ndinyo alias Pnnoelle alias Noelle, instituted on 6th May 2025; that she faces three counts, namely: online child exploitation contrary to Section 22(3)(c) of the Children’s Act No. 29 of 2022; child pornography contrary to Section 24(1)(c) of the Computer Misuse and Cybercrimes Act No. 5 of 2018; and a further count of child pornography contrary to Section 24(1)(d) of the same Act; that the matter is currently pending at the pre-trial stage before the trial court; and that the prosecution has supplied all documentary exhibits to the defence, save for the digital images and videos, which are obscene and indecent images of a minor victim. 3.It was contended that, on 15th September 2025, the Applicant brought an application before the trial court seeking orders to grant the Respondent reasonable access to the explicit images and videos in accordance with Article 53(2) and Article 50(1)(j) of the Constitution. The application was aimed at protecting the privacy and dignity of the minor victim, and preventing redistribution of the indecent material; that however, the trial court declined the prosecution’s application and instead directed that the Respondent be physically supplied with certified digital images and videos in CD format. It was contended that the impugned images and videos depict explicit defilement and sexual abuse of a minor, allegedly uploaded by the Respondent via the Snapchat platform, which acts constitute both online child exploitation and child pornography. 4.Aggrieved by that decision, the Applicant filed a review application before the High Court, which application was dismissed. It was contended that the effect of the High Court’s Ruling permits physical supply of the explicit images and videos to the defence counsel by way of a CD or flash disk format, which to facilitates redistribution and further spread of indecent material involving a minor, and contravenes the strictures of Article 53(2) and Article 50(1)(j) of the Constitution; that the Applicant has already obtained copies of the ruling delivered by the learned Judge on 24th October 2025 and the order issued by Hon. Mbogo on 15th September 2025, and has requested certified copies of the typed proceedings from both the High Court and the trial court, which are yet to be supplied. 5.Finally, it was contended that the Applicant is ready and willing to provide the Respondent with “reasonable access” to the digital evidence at the DCI Anti-Human Trafficking and Child Protection Unit Offices in Mombasa, thereby safeguarding the Respondent’s right to a fair hearing without compromising the privacy and dignity of the minor victim; that it is in the best interests of the victim minor; and that the intended appeal raises issues of general public importance touching on the protection and best interests of children, and bears significant public interest implications. It was also contended that the appeal is merited and has a high chance of success, and that it is therefore in the interests of justice that the orders sought be granted. 6.The Application is supported by the affidavit of Kernae A. Nyawinda, a Prosecution Counsel, which substantially reiterates the grounds of the application and adds that although interim stay orders were initially granted, the High Court ultimately dismissed the revision application on the basis that the identity and age of the minor victim had not been verified, and raised concerns regarding possible artificial intelligence manipulation of the images; that the High Court misapprehended the law, as proof of age is not a prerequisite under Section 24 of the Computer Misuse and Cybercrimes Act and that such offences may proceed even where the minor victim has not been traced. Annexed to the application is a Notice of appeal dated 5th November 2025 and a Memorandum of Appeal raising the following grounds: that the learned judge failed to appreciate that Article 53 (2) of the Constitution provides that a child’s best interests are of paramount importance in every matter concerning the child; misconstrued Article 50 (2) (j) which provides for “reasonable access” of Child Sexual Abuse Material (CSAM) which is a contraband without imposing mandatory safeguards to its possession, redistribution and reproduction which amounts to an offence, hence blatantly ignoring the risk of dissemination of CSAM; in holding that the fundamental right of the accused person under Article 50(2) of the Constitution will be compromised on the pretext of unverified and unascertained information, when all the ingredients for proving the offence the Respondent was charged with was available; in misinterpreting the provisions of Section 24 of the Computer misuse and Cybercrimes Act by holding that the age of the victim minor in the digital images and videos was not proved when that was an issue determinable at trial, and in overlooking the victims right to privacy and dignity under Article 28 and 32 of the Constitution which would be resultant of the exposure of explicit digital images; and in misconstruing Article 48 and Article 35(2) of the Constitution thereby infringing on the victim’s equal right to access to justice by denying her a right to be forgotten through exposure of explicit digital images, among other grounds. 7.The Respondent, through a Replying Affidavit sworn on 4th February 2026, opposed the application and deposed that she was arrested on 26th April 2025 and presented before the Chief Magistrate's Court on 28th April 2025, where orders were sought for her detention for fourteen days to complete investigations; and that, on 6th May 2025, she was formally charged with two offences and pleaded not guilty. 8.She averred that, on the hearing date, the prosecution unexpectedly sought leave to amend the charge sheet, to introduce further documentary evidence, and alleged that her advocate had refused to attend the DCI offices to inspect material extracted from her phone; that the trial court ordered that the extracted material be supplied to the defence within seven days and fixed the matter for mention on 6th October 2025. According to the Respondent, it was this order that prompted the Applicant to seek review before the High Court. 9.In particular, the Respondent objected to the allegations introduced in the Applicant’s motion concerning an unidentified victim allegedly known to her, and to the assertions that she lived with the victim’s mother, and claims that the alleged victim had been transported elsewhere. She argued that these allegations were never raised before the High Court and amount to an attempt to fill evidentiary gaps identified in the High Court's ruling. She therefore urged the Court to strike out the impugned material from the record. 10.The Respondent also contended that Rule 5(2)(a) of the Court of Appeal Rules primarily relates to post-conviction situations involving bail pending appeal and that there is no order capable of execution since the High Court merely dismissed the prosecution’s application; that the Applicant remains under an obligation to comply with the trial court's directions requiring disclosure of the alleged video content to the defence; and that any stay of proceedings would further delay the criminal trial and undermine the constitutional requirement that criminal proceedings be conducted without unreasonable delay. 11.When the application came up for hearing on a virtual platform, learned prosecution counsel Ms. Keya Ombele appeared for the Applicant while learned counsel Mr. Ngari appeared for the Respondent. Through its written submissions, the Applicant submitted that the intended appeal raised substantial constitutional questions and matters of general public importance requiring authoritative pronouncement by this Court. Relying on the principles set out in Hermanus Phillipus Steyn vs Giovanni Gnecchi-Ruscone, Application No. 4 of 2012 [2013] KESC 11 (KLR), it was submitted that the issues transcended the circumstances of the individual case, had significant bearing on the public interest and involved substantial questions of law; that the appeal raised novel issues concerning the handling of Child Sexual Abuse Material (CSAM) in Online Child Sexual Exploitation and Abuse (OCSEA) prosecutions, particularly whether the Director of Public Prosecutions is constitutionally obligated to seek orders granting the defence “reasonable access” to such material rather than physically supplying copies. It was submitted that this Court should determine whether the physical disclosure of CSAM evidence infringes Article 53(2) of the Constitution by undermining the best interests of the child; whether such disclosure compromises the dignity and privacy rights protected under Articles 28 and 31 of the Constitution; whether it undermines the right to be forgotten under Articles 48 and 35(2); and whether it offends Article 50(1) by denying victims equal protection under the law. 12.The Applicant further argued that requiring the prosecution to physically provide CSAM evidence without safeguards created a risk of redistribution, reproduction and dissemination of such material contrary to the interests of justice and the protection owed to child victims. It was submitted that no prejudice would be occasioned to the Respondent if the stay orders were granted; and that, on the contrary, the public interest favoured preservation of the subject matter of the appeal given the constitutional and legal issues raised and the principle that the best interests of the child are of paramount importance in every matter concerning a child. The Applicant therefore urged the Court to exercise its discretion in favour of granting the stay sought, observing that there was presently no judicial precedent from the superior courts in Kenya addressing the unique constitutional questions arising from the management and disclosure of CSAM evidence in OCSEA prosecutions. 13.In their written submissions, the Respondent submitted that the Applicant had failed to satisfy the legal requirements for the grant of the orders sought, and that the application should be dismissed. Counsel argued that the Applicant sought to introduce new evidence that had never been presented before either the trial court or the High Court, and that the proposed evidence related to matters that could, with due diligence, have been placed before those courts. It was submitted that the application was an attempt to cure evidentiary deficiencies exposed in the High Court proceedings and did not meet the threshold governing admission of additional evidence on appeal. Reliance was placed in Ian Gakoi Maina & 3 Others vs Republic, Kisumu Criminal Application Nos. 73 and 74 of 2019, for the proposition that additional evidence should only be admitted in exceptional circumstances. 14.The Respondent further submitted that Rule 5(2)(a) of the Court of Appeal Rules was inapplicable to the present circumstances, relying on Juvinalis Onno vs Attorney General, Nakuru Criminal Application No. 8 of 2002, and Peter Juma Simiyu vs Republic & Another, Mombasa Criminal Application No. 8 of 2002, for the proposition that the provision was intended to address situations involving bail pending appeal after conviction. Counsel also maintained that there was no executable or positive order capable of being stayed because the High Court had merely dismissed the prosecution's application. It was further submitted that the intended appeal was not arguable since it was predicated on allegations concerning an unnamed and unidentified victim whose age and identity had not been established. It was also submitted that the Applicant had equally failed to demonstrate that the appeal would be rendered nugatory if the stay sought was refused. 15.We have considered the motion as well as the parties’ submissions. The Court’s jurisdiction to grant stay orders is derived from Rules 5 (2) (a) and (b) of the Court of Appeal Rules. At the outset, it is necessary to point out that the instant application is not concerned with a bail application as premised under Rule 5 (2) (a). But, in so far as stay of the orders of the High Court in criminal cases is concerned, the case of Ian Gakoi Maina & 3 Others vs Republic & Another [2020] eKLR clarified the scope of Rule 5(2)(a) as compared to Rule 5(2)(b) of the Rules, and also addressed the circumstances in which the Court can grant stay when criminal proceedings are pending. The Court stated:“The applicants have not sought bail before us, nor is there a warrant of distress that they seek to have suspended. Furthermore, they have not been convicted or a warrant of distress issued against them as was the case in Jayendra Khimji Malde & 2 Others v Republic Criminal Application No. Nai 14 of 2010 (unreported) where Githinji, JA held that:‘It is apparent from the wording of Rule 5 (2)(a) as read with Rule 59 that the rule applies to cases where the applicant has already been convicted and sentenced either by the subordinate court, or by the High Court.’” 16.However, we note that this Court may grant stay orders in criminal proceedings pending before the subordinate court only on appeal arising from the decision of the High Court. In Republic v The Kenya Anti- Corruption Commission & 2 Others Civil Application No. Nai 51 of 2008 (Unreported) Tunoi, JA. (as he was then) in dealing with the issue of the jurisdiction of this Court to grant an order of stay of criminal proceedings, expressed himself as follows:“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.” 17.The Judge then concluded that:“From my consideration of the above somewhat conflicting decisions I would hold therefore that whether rule 5(2) (b) of the Rules does apply to criminal proceedings and as to whether this Court can issue an order for prohibition in a criminal case against the magistrate’s court pending appeal depends on what prayers an applicant is seeking under the rule and the particular circumstances of each case.I am therefore called upon to exercise my discretion on whether or not to grant the prayers sought in the application which I proceed to do.” 18.Makhandia, JA. also noted in the same decision the fact that an order staying criminal proceedings would only be granted in exceptional circumstances. 19.In the case of Juma vs Republic (Criminal Application E035 of 2022) [2023] KECA 557 (KLR), the applicant similarly invoked Rule 5(2)(a) while seeking stay orders pending appeal. The Court observed that Rule 5(2)(a) was inapplicable because the applicant sought neither bail pending appeal nor suspension of a warrant of distress. Rather than striking out the application, however, the Court invoked its inherent jurisdiction and held:“Given this error on the applicant's part, we will invoke our inherent powers and apply Rule 5(2)(b) to the circumstances of this case so as to ensure that the ends of justice are served." 20.In the instant application, the Applicant seeks a stay of the Ruling delivered by the High Court in Criminal Revision No. E216 of 2025 on 24th October 2025 arising out of proceedings in the trial magistrates court pending hearing and determination of an Intended Appeal. The Applicant has sought the orders of stay under Rule 5 (2) (a) that is concerned with bail applications rather than under Rule 5 (2) (b). However, in adherence to the edicts of Article 159 of the Constitution, we will refrain from dwelling on procedural technicalities, and proceed to determine the application by applying the principles pertaining to Rule 5 (2) (b) of the Court’s rules, which make provision for stay of execution, injunctions and stay of proceedings. The principles governing the grant of relief under Rule 5(2)(b) require an applicant to satisfy two concurrent requirements: first, that the appeal is arguable; and, second, that unless the stay or injunction sought is granted, the appeal will be rendered nugatory—that is, useless, illusory, academic, or devoid of practical effect. An arguable appeal does not mean one that must ultimately succeed; rather, it is an appeal that is not frivolous and raises at least one genuine issue worthy of consideration, and requiring a reasoned response from the Respondent. 21.As to whether the intended appeal is arguable, we have considered the grounds set out in the Memorandum of appeal pertaining to Child Sexual Abuse Material (CSAM) in Online Child Sexual Exploitation and Abuse (OCSEA) prosecutions and what amounts to “reasonable access”, and we are satisfied that they are arguable. 22.As to whether the intended appeal will be rendered nugatory, the Applicant has argued that, if the High Court’s directions requiring the prosecution to physically supply the defence with certified copies of the explicit digital images and videos were implemented before the appeal was heard, the concerned Child Sexual Abuse Material (CSAM) would leave the controlled custody of the prosecution and be disseminated to third parties. According to the Applicant, once the material was copied onto a CD or flash disk and handed over to the defence, the disclosure would be irreversible. The Applicant maintains that there would be no practical way of preventing further reproduction, redistribution or circulation of the indecent images and videos involving the minor victim. Consequently, even if the intended appeal were ultimately to succeed and this Court were to hold that only “reasonable access” should have been granted, the child victim's privacy, dignity and best interests under Articles 28, 31 and 53(2) of the Constitution would already have been irretrievably compromised, and would render the appeal nugatory 23.Given that there is the possibility of disclosure of Child Sexual Abuse Material (CSAM) if physical access is granted in the form ordered by the High Court, and given that the consequences of further reproduction and dissemination could not be undone in the event the appeal succeeds, we are also satisfied that the intended appeal will be rendered nugatory. 24.Accordingly, we are satisfied that the twin requirements of Rule 5 (2) (b) of this Court’s rules have been met and, given that it cannot be doubted that the circumstances alluded to are exceptional, we find that the stay orders sought are warranted. 25.In sum, the Notice of Motion dated 20th November 2025 is merited and is hereby allowed. An order for stay of the Ruling in High Court Criminal Revision No. E216 of 2025 issued on 24th October 2025 and the criminal proceedings against the Respondent in Shanzu MCCR/E359/2025 - Republic vs Noel Naliaka Ndinyo alias Pnnoelle alias Noelle – is hereby made pending the hearing and determination of the intended appeal. We also order that the appeal be heard on a priority basis. We make no orders as to costs.It is so ordered. DATED AND DELIVERED AT MOMBASA THIS 24TH DAY OF JULY, 2026.A.K. MURGOR…………………………JUDGE OF APPEALDR. K. I. LAIBUTA CArb, FCIArb.…………………………JUDGE OF APPEALJOEL NGUGI…………………………...JUDGE OF APPEALI certify that this is the true copy of the originalsignedDEPUTY REGISTRAR