[2018] KEHC 5377 (KLR)
The court found that, in the interests of fairness, the proceedings in ACC No. 9 of 2015 should be temporarily stayed to allow the High Court to hear and determine the appeal on whether the applicant's prosecution was valid in light of the EACC's constitution at the material time. The court held that the...
Source-derived case information.
- Citation
- [2018] KEHC 5377 (KLR)
- Parties
- Appellant: Ibrahim Haji Isaac; Respondent: Director of Public Prosecution
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Anti-Corruption and Economic Crimes Case 8 of 2018
- Procedural Posture
- Criminal Appeal / Ruling on Application for Stay of Proceedings Pending Appeal
- Outcome
- Application for stay of proceedings allowed.
- Legal Topics
- Stay of Proceedings, Constitutionality of Prosecution, Proper Constitution of Eacc, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ibrahim Haji Isaac
Appellant
Director of Public Prosecution
Respondent
Procedural Posture
Criminal Appeal / Ruling on Application for Stay of Proceedings Pending Appeal
Legal Issues
- 1 Whether the applicant's prosecution should be stayed pending determination of the appeal.
- 2 Whether the applicant's case falls within the category of cases affected by the Court of Appeal decision in Engineer Kamau case (C.A. No. 102 of 2016).
Ratio Decidendi
The court found that, in the interests of fairness, the proceedings in ACC No. 9 of 2015 should be temporarily stayed to allow the High Court to hear and determine the appeal on whether the applicant's prosecution was valid in light of the EACC's constitution at the material time. The court held that the determination of whether the applicant's case falls within the category affected by the Engineer Kamau decision cannot be made at the interlocutory stage, but a stay is warranted to prevent prejudice to the applicant and to ensure the appeal is not rendered nugatory.
Court Disposition
Application for stay of proceedings allowed.
Orders
- Temporary stay of proceedings in Nairobi ACC No. 9 of 2015 granted.
- Record of appeal to be prepared and served within 7 days.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
ANTI-CORRUPTION AND ECONOMIC CRIMES DIVISION
ACEC CRIMINAL APPEAL NO. 8 OF 2018
IBRAHIM HAJI ISAAC...............APPELLANT/APPLICANT
VERSUS
DIRECTOR OF PUBLIC PROSECUTION....RESPONDENT
(Being an appeal arising from Milimani Chief Magistrate's Court
Anti-Corruption Court in Anti-corruption Case No.9 of 2015 delivered
by Hon. L.N. MUGAMBI Chief Magistrate on 9th April 2018. )
RULING
1 The Appellant/Applicant filed the application dated 25th April, 2018 alongside the appeal herein. The appeal is against a ruling by the trial court dated and delivered on 9th April 2018.
2 In the said Ruling the trial court discharged the applicant’s five(5) co-accused on the ground that the recommendation to charge and the decision to charge them fell within the period when the EACC was not properly constituted.
3 It was however ordered that the case against the Applicant proceeds. This is the core of the appeal. It was Hon. Mugambi’s (C.M.) view that the decision to have the Applicant charged was made vide the DPP’s letter dated 9th October 2014, and not much later.
4 The hearing of the said matter has been rescheduled to 29th June 2018, before the Chief Magistrate. The Appellant/Applicant has expressed his fears in the matter proceeding before the appeal is heard.
5 I have considered the application, affidavit, grounds of opposition and the submissions by both counsel. I have had a chance to peruse the lower court file and in particular the following:
(i) Charge sheet
(ii) The letter from the D.P.P dated 9th October 2014 and the response by the EACC dated 6th May 2015.
6 In the appeal filed this court has to make a determination as to whether the Applicant’s case falls within the category of cases affected by the Court of Appeal Engineer Kamau case (C.A. No. 102 of 2016)or not.
7 That decision cannot be made vide this application. The court has been informed that two (2) witnesses have been scheduled to testify in the criminal case tomorrow.
8 I find that in all fairness the proceedings in this case ACC No. 9 of 2015 should be temporarily stayed to allow this court hear the appeal and make a determination. The same will be heard within the shortest time possible.
9 I therefore allow the application dated 25th April 2018 and grant a temporary order of stay of proceedings in Nairobi ACC No. 9 of 2015.
(a) Record of appeal to be prepared and served within 7 days.
(b) Counsel may file written submissions limited to 3 pages.
(c) Appeal to be heard on 12th July 2018 when Counsel will highlight their submissions before Justice Onyiego.
(d) The lower court case ACC No. 9 of 2015 to be mentioned before Mr. Mugambi Chief Magistrate on 30th July 2018 for further orders and/or directions.
Orders accordingly.
Signed, dated and delivered this 28th day of June 2018 in open court at Nairobi.
........................................
HEDWIG I. ONG’UDI
JUDGE