https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1006

Ochieng v Oginga & another (Criminal Application E013 of 2025) [2026] KECA 1006 (KLR) (29 May 2026) (Ruling) Neutral citation: [2026] KECA 1006 (KLR) Republic of Kenya In the Court of Appeal at Mombasa Criminal Application E013 of 2025 AK Murgor, KI Laibuta & GW Ngenye-Macharia, JJA May 29, 2026 Between Everlyne Awuor Ochieng Applicant and Pauline Adhiambo Oginga 1st Respondent Director Of Public Prosecutions 2nd Respondent (An application arising from the ruling of the High Court of Kenya at Mombasa (W. Micheni, J.) delivered on 24th July 2025 at Mombasa in HCCR Misc Application No. E184 of 2024) Ruling 1.The Applicant, Everlyne Awuor Ochieng, was charged before the Chief Magistrate’s Court at Mombasa in Mombasa MCCR No. E344 of 2023 with the offence of threatening to kill. Before the case was heard and determined, the prosecution entered a nolle prosequi based on an exculpatory report dated 9th August 2024. Upon considering the nolle prosequi, the trial court acquitted the Applicant on 17th September 2024. 2.On 19th September 2024, the 1st Respondent, who was the complainant in the criminal case, filed a revision application before the High Court in HCCR MISC APPL/E184 OF 2024 seeking to revise the acquittal orders. The Applicant was not joined as a party in those proceedings, but the High Court allowed the revision application in a ruling delivered on 20th February 2025 and directed that the trial court proceeds with the hearing of the defence case. 3.Upon learning of the revision ruling, the Applicant filed a review application dated 21st March 2025 challenging, inter alia, the High Court’s jurisdiction and the failure to accord her an opportunity to be heard pursuant to Section 364(1)(b) of the Criminal Procedure Code and Articles 25(c), 47, 48 and 50 of the Constitution. In a ruling delivered on 24th July 2025, the High Court dismissed the review application and reaffirmed its earlier orders. 4.Aggrieved, the Applicant filed a Notice of Appeal dated 26th July 2025 and, by a Notice of Motion dated 28th July 2025 brought pursuant to Articles 25 (c), 47, 48, 50 and 159 of the Constitution, Section 4 of the Fair Administrative Action Act, 2015, Section 364 (1)(b) and 364 (2) of the Criminal Procedure Code, the Applicant sought orders, inter alia, that, pending the hearing and determination of the Appeal against the ruling of the High Court of 24th July 2025 in HCCR Misc App. No. E184/2024 - Pauline Adhiambo Oginga v ODPP, the proceedings before the subordinate trial Court in Mombasa Criminal Case No. E344 of 2023 - Republic v Everlyne Awuor Ochieng be stayed pending hearing and determination of the intended appeal; that, in the alternative to the above order, an order of prohibitory injunction do issue prohibiting further hearing and determination by the subordinate trial court of the proceedings in Mombasa Criminal Case No. E344 of 2023 - Republic v Everlyne Awuor Ochieng; and that costs abide the outcome of the intended appeal. 5.The Applicants’ Motion was brought on several grounds which largely repeated the facts as presented, save to add that, unless the impugned orders of the High Court delivered on 24th July 2025 are stayed, the substratum of the intended appeal will be rendered nugatory, as it was against public interest for the High Court to arrogate to itself jurisdiction expressly barred by Section 364(1)(b) of the Criminal Procedure Code because the crux of the Applicant’s defence had already been judicially watered down, and because the Applicant will be subjected to a trial process whose outcome has been effectively predetermined through supervisory precedent, thereby exposing her to an unavoidable conviction notwithstanding her defence; that the proportionality of the hardship of undergoing a prejudged trial far outweighed any inconvenience that may be occasioned to the Respondent by the granting of stay, and that the prejudice of undergoing a potential custodial sentence cannot be remedied by damages. It was further urged that the constitutional powers of the ODPP under Article 157(6)(c) be respected, and that courts should refrain from undermining the exculpatory evidence relied upon by the ODPP in entering a nolle prosequi. 6.The Applicant also asserted that the Respondent would suffer no prejudice if the application is heard on a priority basis, and that the Court has both original and inherent jurisdiction to hear the motion and grant the orders necessary to safeguard the substratum of the appeal and the interests of justice. 7.The Application was supported by the applicant’s Affidavit in which she deposed that, on 26th February 2025, she received a text message from the Judiciary through her phone number 0720903994 informing her that her criminal matter—already concluded eight months earlier—had been fixed for mention on 12th March 2025; that she came to learn that the 1st Respondent— the complainant in her case—had filed a revision application dated 19th September 2024 seeking to revise the acquittal orders made on 17th September 2024; that the 1st Respondent had failed to join her in the revision proceedings, and instead joined only the ODPP and the trial court; that the revision application had proceeded unopposed, and that the High Court had allowed the revision; that, in doing so, the High Court had: (i) assumed jurisdiction it did not have under Section 364(1)(b) of the Criminal Procedure Code because the orders sought to be revised were orders of acquittal by a subordinate court; (ii) failed to order her joinder to the proceedings as required by Section 364(2) of the Criminal Procedure Code; and (iii) trivialised the prosecution’s report dated 9th August 2024, the basis of the nolle prosequi; that as a consequence she filed the motion seeking to review the ruling of 20th February 2025; that the High Court, in its ruling delivered on 24th July 2025, dismissed her review application and reaffirmed its earlier orders; that she is apprehensive that, if the trial proceeds, she would face an inescapable conviction as the charge she faced carries a sentence of ten years’ imprisonment without the option of a fine. 8.The Applicant further deponed that she has an arguable appeal as evidenced in her draft memorandum of appeal; that her appeal raises weighty issues of constitutional and legal significance, including want of jurisdiction, violation of rights to fair trial, violation of statutory joinder requirements, violation of the principles of natural justice, disregard of binding precedent, and exposure to unlawful conviction; that, unless the application is allowed and the proceedings stayed, the substratum of her intended appeal would be rendered nugatory because allowing the trial to proceed would expose her to a conviction; the hardship of undergoing a trial with a predetermined outcome far outweighed any inconvenience to the Respondent; she faced a potential ten-year term of imprisonment if convicted; and that the Respondent would suffer no prejudice if the Application was heard on priority and the appeal ventilated. 9.Annexed to the application is a Notice of Appeal dated 25th July 2025 and a draft Memorandum of Appeal setting out the grounds of appeal. 10.In a Replying affidavit, the 1st Respondent, Pauline Adhiambo Oginga, deposed that she was aware, from her personal knowledge, that the High Court had delivered its ruling on 27th July 2025 in HCCR MISC APPL/E184/2024 pursuant to a review application filed by the Applicant; that the present Notice of Motion was fatally defective for having been brought under the wrong provisions of the law; that the Application ought to have been filed under Rules 5 and 44 of the Court of Appeal Rules (2022) and that the intended appeal was in reality an appeal against the Revision Ruling delivered on 20th February 2025, which the Applicant had already unsuccessfully sought to review. 11.It was averred that, having chosen to pursue review of the ruling on the revision application, the Applicant was precluded from taking a second bite at the cherry by filing an appeal; that the intended appeal—although framed as an appeal against the review ruling delivered on 27th July 2025—was in essence an appeal against the revision ruling delivered on 22nd February 2025, and that the grounds relied upon in the current Notice of Motion were substantially the same grounds the Applicant had relied upon in seeking review of the ruling of 22nd February 2025. 12.She further averred that, having sought review of the ruling delivered on 20th February 2025, the Applicant could not now purport to appeal against the same ruling and could only appeal against the review ruling delivered on 24th July 2025; that the High Court, in its ruling of 24th July 2025, had properly exercised its supervisory jurisdiction under Article 165 of the Constitution by calling for the records of the lower court, examining them and quashing the trial court’s decision for impropriety; that the High Court had correctly found that the Applicant had wrongly invoked the Civil Procedure Rules in her review application. It was also averred that the Applicant would not suffer any prejudice if the proceedings before the trial court were to continue, as the Applicant was presumed innocent until proven guilty, and that the intended appeal would not be rendered nugatory if the orders sought were not granted because the Applicant still had various available avenues, including review and appeal, should she be convicted by the trial court. 13.In a further affidavit, the Applicant deposed that the 1st Respondent served me with a ruling delivered on 20/02/2025 in HCCR MISC APPL/E184/2024 - Pauline Adhiambo Oginga v ODPP - on 12th March 2025 during mention; that, as per the affidavit of service filed by the 1st Respondent in HCCR MISC APPL/E184/2024 - Pauline Adhiambo Oginga v ODPP - indicates that she was not served with pleadings before the superior court. 14.When the application came up for hearing, learned counsel Mr. Mangale appeared for the Applicant while learned counsel Mr. Sang appeared for the 1st Respondent, and learned prosecution counsel Mr. Sirma appeared for the 2nd Respondent. Counsel for the Applicant relied on the written submissions and the grounds set out in the motion to assert that the application was arguable, and that it would be rendered nugatory were the orders sought not granted 15.On their part, counsel for the 1st Respondent also reiterated the averments of the affidavit in reply to argue that the appeal was not arguable, and would not be rendered nugatory; and that the Application lacked merit in both form and substance. 16.Learned prosecution counsel for the 2nd Respondent supported the application. 17.We have considered the application, the affidavits and the submissions. The Applicant is seeking orders of stay of the proceedings in Mombasa Criminal Case No. E344 of 2023 - Republic v Everlyne Awuor Ochieng - pending hearing of an intended appeal. Yet, the Application is brought pursuant to Articles 25 (c), 47, 48, 50 and 159 of the Constitution, Section 4 of the Fair Administrative Action Act, 2015, Sections 364 (1)(b) and 364 (2) of the Criminal Procedure Code, and has failed to cite the relevant provisions of law to be relied upon. We deem it good practice for parties to invoke the relevant provisions of the law as pertains the Court’s jurisdiction. This is because it provides the basis on which the Court is empowered to ‘make such orders as may be necessary for the ends of justice, or to prevent abuse of the process of the Court. 18.However, notwithstanding the grave inadvertence on the Applicant’s part, in terms of the edicts of Article 159 of the Constitution, we 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. 19.These principles are now well settled in a host of decisions of this Court, including Trust Bank Limited and Another v Investech Bank Limited & 3 Others (Civil Application No. Nai 258 and 315 of 1999 (unreported) where the Court expressed itself thus:“The jurisdiction of the Court under rule 5 (2) (b) is … discretionary and it is trite law that to succeed an applicant has to show first that his appeal or intended appeal is arguable, [or that it is not frivolous] and secondly that unless he is granted a stay the appeal or intended appeal, if successful will be rendered nugatory. These are the guiding principles but these must be considered against facts and circumstances of each case.” 20.In this case, the Applicant is seeking orders to stay criminal proceedings pending hearing and determination of an intended appeal in this Court. In Republic v The Kenya Anti-Corruption Commission & 2 Others [2009] eKLR (Civil Application No. Nai 51 of 2008), Tunoi, JA. (as he then was) who, in dealing with the issue of the jurisdiction of the Court to grant an order of stay of criminal proceedings, expressed himself on the Court’s jurisdiction to grant an order of stay in criminal proceedings thus:“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.” 21.It is trite that an order staying criminal proceedings would be granted only in the most exceptional of circumstances. In illustration of this point in the case of Goddy Mwakio & Another v Republic [2011] eKLR, this Court stated that:“An order for stay of proceedings, particularly stay of criminal proceedings is made sparingly and only in exceptional circumstances”.See also Halsbury’s Laws of England, 4th Edition Re-issue page 290 paragraph 926. 22.Further, this Court in the case of Waithaka v Tribunal appointed to investigate the conduct of the Honourable Lady Justice Lucy Njoki Waithaka & another; Kenya Magistrates & Judges Association (Interested Party) (Civil Application 8 of 2020) [2020] KECA 571 (KLR) succinctly stated:“We note that stay of proceedings is a serious, grave and fundamental judicial action which interferes with the right of any party to conduct litigation. (See: Francis N. Githiari v Njama Limited [2006] eKLR. It impinges on the right of access to justice, right to be heard without delay and the right to a fair trial. While addressing the issue of stay of proceedings in the persuasive case of Global Tours and Travels Limited (supra), Ringera, J as he then was stated thus: 23.As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a degree or order appealed from is a matter of judicial discretion to be exercised in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order stay, the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal in the sense of whether or not the intended appeal will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously.” 24.And in the case of Berkeley North Market & Others v Attorney General & Others, Civil Application No. Nai. 74 of 2005 (unreported), the Court rendered itself on the factors to be considered in an application for stay of criminal proceedings in the following manner:“At this stage, on an application to stay criminal proceedings, it is not for this Court to make a final determination: we only need to be satisfied that a sole bonafide contention is not unarguable or frivolous.” 25.Bearing in mind the above principles, on the first limb, the Applicant contends that the High Court assumed jurisdiction it did not possess under Section 364(1)(b) of the Criminal Procedure Code when it revised an order of acquittal and that, in doing so, it violated Section 364 (2) of the Code and Articles 25(c), 47, 48 and 50 of the Constitution by failing to accord her an opportunity to be heard. Jurisdiction is a foundational issue, and any arguable question touching on it cannot be lightly discarded. Without expressing any conclusive view on the merits, we are satisfied that the intended appeal raises bona fide issues of law regarding the scope of the High Court’s revisionary powers and the right to be heard in revision proceedings and, as such, we consider the intended appeal to be arguable. 26.As to whether the appeal would be rendered nugatory if stay of proceedings is not granted, the Applicant asserts that, unless the proceedings before the subordinate court are halted, she will be placed on her defence pursuant to the High Court’s findings, and will be exposed to an inevitable conviction carrying a severe custodial sentence. 27.However, the mere fact of being required to undergo a criminal trial does not of itself amount to irreparable prejudice. Criminal proceedings are conducted before courts of competent jurisdiction which are mandated to independently evaluate the evidence before them and apply the law impartially. The apprehension that the trial court will feel bound or embarrassed by the High Court’s observations is speculative. The trial court remains duty-bound to determine the case on the evidence and the law. 28.Further, should the Applicant ultimately be convicted, the law provides adequate avenues of redress through appeal. The possibility of a custodial sentence, though serious, is a consequence contemplated by statute and does not, of itself, constitute exceptional circumstances warranting halting of criminal proceedings. We are not satisfied that continuation of the trial would destroy the substratum of the intended appeal or render it nugatory. In the case of Erdemann Property Limited & 2 Others v Ethics and Anti-Corruption Commission & 5 Others [2022] KECA 860 (KLR), this Court observed:“… It cannot be said that the criminal prosecution will be an irreversible event as the Court can set aside the findings of the trial court if the appeal is successful. 17.We also take note of the fact that the proceedings being of a criminal nature, there must be demonstration of exceptional circumstances to justify interference with the prosecution. The applicants are apprehensive that if the criminal proceedings against them proceed, they may be severely prejudiced. However, it is common ground that the court hearing the criminal proceedings has the obligation of ensuring that the applicants get a fair trial. The applicants also could appeal, should they not be satisfied with the decision of the Chief Magistrates’ Court or the High Court. We find that the applicants are simply jumping the gun, as other than mere speculation, they have not demonstrated any exceptional circumstances to justify interference with the criminal prosecution.” See also Chabeda v Director of Public Prosecutions (Criminal Application E051 of 2025) [2025] KECA 1827 (KLR). 29.In sum, the Applicant has failed to satisfy the twin requirements of Rule 5 (2) (b) of the Court’s Rules, with the result that the Notice of Motion dated 28th July 2025 is without merit and is hereby dismissed with costs to the 1st Respondent.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 originalsigned DEPUTY REGISTRAR