https://new.kenyalaw.org/akn/ke/judgment/keca/2026/961

Saroya v Director of Public Prosecutions & 3 others (Civil Application E659 of 2025) [2026] KECA 961 (KLR) (15 May 2026) (Ruling) Neutral citation: [2026] KECA 961 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Application E659 of 2025 WK Korir, HI Ong'udi & SO Okong'o, JJA May 15, 2026 Between Mohamed Zeshan Saroya Applicant and The Director of Public Prosecutions 1st Respondent The Inspector General of Police 2nd Respondent The Director of Criminal Investigations 3rd Respondent Athi River Steel Plant Ltd 4th Respondent (Being an application for stay of proceedings pending hearing and determination of the intended appeal from the whole of the judgment of the High Court of Kenya at Machakos (Olel, J.) dated and delivered on 19th June, 2024 in HC JR Misc. Application No. E008 of 2022 Judicial Review Miscellaneous Application E008 of 2022 ) Ruling 1.Before us is a notice of motion dated 5th November 2025 through which the applicant, Mohamed Zeshan Saroya, seeks to stay the proceedings in Mavoko Chief Magistrate’s Court Criminal Case No. 1222 of 2022, Republic vs. Mohamed Zeshan Saroya, pending the hearing and determination of his intended appeal against the judgment of the High Court (Olel, J.) delivered on 19th June 2024. The background to the motion is that the applicant, a director of Zan Steel Limited, was charged before the Mavoko Chief Magistrate’s Court with the offences of obtaining credit by false pretences contrary to section 316(a) of the Penal Code and issuing a bad cheque contrary to section 316A(1)(a)(4) of the Penal Code. The charges arose from a commercial transaction between his company and the 4th respondent, Athi River Steel Plant Limited, involving a sum of Kshs. 161,022,020.64. 2.Aggrieved by the institution of criminal proceedings, the applicant moved the High Court at Machakos through a judicial review application seeking to quash the criminal trial. In a judgment delivered on 19th June 2024, Olel, J. dismissed his application hence the applicant’s present motion seeking stay of the judgment of the High Court, as the applicant challenges the impugned judgment before this Court. 3.In support of the motion, the applicant averred that the intended appeal is arguable. He deposed that the High Court erred by criminalizing what is essentially a civil contractual dispute between two companies. Further, that the High Court erroneously relied on an interim ruling by S.N. Mutuku J. dated 23rd December 2022, refusing an interim stay, and conflated the tests for interim and substantive relief without engaging with the merits of his claims of abuse of process and ultra vires action. On the nugatory aspect, the applicant averred that without stay, the ongoing criminal proceedings may be concluded before his appeal is heard, subjecting him to the risk of conviction, loss of liberty, reputational damage, and financial prejudice. It is, therefore, the applicant’s position that should the criminal trial proceed, his intended appeal would be rendered nugatory. 4.The 4th respondent filed a replying affidavit sworn on 20th February 2026 by its Operations Manager, Michael Karanja, opposing the application. Through the affidavit, the 4th respondent asserted that the intended appeal is not arguable and will not be rendered nugatory if the stay is refused. As to why the appeal is not arguable, it was averred that the High Court correctly found that both civil and criminal proceedings can run concurrently as per the provisions of section 193A of the Criminal Procedure Code. Additionally, the 4th respondent deposed that the applicant’s conduct constituted criminal offences separate from any civil claim. On the nugatory aspect, the 4th respondent asserted that the appeal will not be rendered nugatory should stay be declined. Further, that the criminal trial was partly heard, and a stay would unduly delay justice. 5.Although the 1st respondent, the Director of Public Prosecutions (DPP), did not reply to the application, it opposed the same through written submissions. The 2nd and 3rd respondents did not participate in the matter. 6.In the 1st respondent’s brief submissions, it was contended that the applicant has not demonstrated an arguable appeal or that the appeal would be rendered nugatory. In support of this position, the DPP relied on the constitutional independence of the prosecutorial authority as underlined in Article 157 of the Constitution. 7.We have carefully considered the application, the affidavits, the submissions, and the authorities cited by counsel. 8.From the pleadings and submissions placed before us, we identify the sole issue for our determination as to whether the applicant has satisfied the twin principles for the grant of an order under rule 5(2)(b) of the Court of Appeal Rules. The twin principles were restated in Stanley Kangethe Kinyanjui vs. Tony Ketter & 5 Others [2013] eKLR as firstly, whether the applicant has presented an arguable appeal, and secondly, whether the intended appeal would be nugatory if the interim orders sought are denied. 9.Before we proceed, we note the 4th respondent’s argument that this application should be rejected because the applicant had previously filed a similar application, which was withdrawn. On this, we only need to observe that the withdrawal of an application does not, in itself, bar the filing of a similar application. 10.Turning to the substance of the motion, we bear in mind that an arguable appeal is not one that must necessarily succeed, but one that raises a bona fide issue that ought to be argued fully before the Court, and also one that is not frivolous. As this Court held in University of Nairobi vs. Ricatti Business of East Africa [2020] KECA 463 (KLR), it is sufficient if a single bona fide arguable ground is raised. In that decision, the Court held that:“An arguable appeal is also not one which must necessarily succeed, but one which ought to be argued fully before the Court; one which is not frivolous. See Joseph Gitahi Gachau & Another vs. Pioneer Holdings (A) Ltd. & 2 others, Civil Application No. 124 of 2008. From the material before us, we are satisfied that the applicant has established the limb on arguability.On the 2nd limb of nugatory aspect, whether or not an appeal will be rendered nugatory depends on whether what is sought to be stayed, if allowed to happen is reversible; or if it is not reversible whether damages will reasonably compensate the party aggrieved. Where it is alleged by the applicant that an appeal will be rendered nugatory on account of the respondent's alleged impecunity, the onus shifts to the latter to rebut that allegation by evidence. See International Laboratory for Research on Animal Diseases vs. Kinyua, [1990] KLR 403.” 11.The applicant raises several grounds in his memorandum of appeal dated 18th July 2024. The core ground is that the High Court erred in finding that the 1st to 3rd respondents acted within their mandate when the criminal charges arose from a civil contractual dispute. He contends that the criminal process is being used as a tool for debt recovery, which amounts to an abuse of the court process. The 4th respondent counters that the use of dishonoured cheques and obtaining credit by false pretences are distinct criminal offences, and that section 193A of the Criminal Procedure Code expressly permits concurrent civil and criminal proceedings. 12.Without making definitive findings that may embarrass the bench that will hear the substantive appeal, we are satisfied that the intended appeal raises arguable issues. In particular, we are of the opinion that the question whether the High Court properly conflated the interim ruling with the substantive judicial review application, and whether the criminal proceedings in the circumstances of this case constitute an abuse of process, are matters that merit the consideration of this Court on a full hearing. The applicant has also alleged that the criminal charges are malicious and intended to coerce payment of a civil debt. Whether that allegation is substantiated is a matter for the appellate bench. We are therefore satisfied that the appellant has surmounted the first hurdle. 13.Turning to the nugatory aspect, we advert to the holding in Reliance Bank Ltd vs. Norlake Investments Ltd [2002] 1 EA 227 that the term “nugatory” does not only mean worthless, futile or invalid, but also trifling. Therefore, whether or not an appeal will be rendered nugatory depends on whether what is sought to be stayed, if allowed to happen, is reversible; or if not reversible, whether damages will reasonably compensate the party aggrieved. Thus, in Murang’a Road Motor Mart Limited vs. Registrar & 8 Others [2024] KECA 980 (KLR), the Court restated these principles thus:“On the second factor as to whether the appeal would be rendered nugatory if the stay of execution is not granted, the term “nugatory” has to be given its full meaning. It does not only mean worthless, futile or invalid. It also means trifling as was stated in Reliance Bank Ltd vs. Norlake Investments Ltd [2002] 1 EA 227 on page 232. Whether or not an appeal will be rendered nugatory, depends on whether or not what is sought to be stayed if allowed to happen is reversible; or if it is not reversible whether damages will reasonably compensate the party aggrieved. (See Multimedia University & Another) (supra).” 14.We note that this Court has previously held that stay of criminal proceedings may issue in exceptional circumstances where the prosecution is shown to be an abuse of process. In Diana Kethi Kilonzo vs. Republic [2016] KECA 19 (KLR), the Court stated:“The upshot on the issue of jurisdiction is, therefore, that under the inherent jurisdiction of this court and pending disposal of appeals from the High Court, an order of stay of proceedings can issue where it is demonstrated that the prosecution is actuated by malice and there is abuse of the court process and/or where such prosecution is instituted for an improper motive such as to harass and exert improper pressure upon the applicant. The subordinate court criminal proceedings will also be stayed if it is demonstrated that the prosecution is instituted in derogation of the applicant's constitutional rights. The jurisdiction is sparingly used and only where the justice of the matter so demands.” 15.Turning to the facts of the case before us, we observe that the applicant contends that without stay, the criminal trial may proceed to conclusion, resulting in a possible conviction, loss of liberty, irreparable reputational harm, and financial loss. On the other hand, the DPP and the 4th respondent submit that a conviction, if any, can be challenged on appeal and quashed. They rely on the principle that criminal proceedings are not automatically stayed merely because an accused person fears prejudice. In Mutune vs. Republic [2025] KECA 496 (KLR), the Court faced with a similar argument regarding the nugatory aspect in criminal proceedings held that:“Regarding the nugatory aspect, the applicants contend that upon being charged, they risk being interdicted and, as a result, they will lose their pay and promotional opportunities and be subjected to ridicule and emotional distress. The scenario painted by the applicants befalls every other public servant when faced with a criminal trial. In our view, such an eventuality cannot be a ground that renders an appeal nugatory. If the Court were to halt every other criminal trial on such grounds, then the objectives of criminal trials will be lost. On this, we wish to recall the Court's pronouncement in Erdemann Property Limited & 2 others vs. Ethics and Anti-Corruption Commission & 5 Others [2022] KECA 860 (KLR) thus: ‘... 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.’” 16.The Court further went on to add that:“… The applicants have not pinpointed a specific act that has given rise to their fear of an injustice or even an infringement of their rights. We wish to reiterate the obvious fact that the trial court will be under an obligation to protect the suspects' rights as guaranteed under Articles 49 and 50 of the Constitution, and should they be dissatisfied, they will have an opportunity to challenge any aspect of the trial in a substantive appeal to be filed after the trial.” 17.Similarly, in Michael Sistu Mwaura Kamau vs. Ethics and Anti-Corruption Commission, Director of Public Prosecutions, Attorney General & Inspector General of the National Police Service [2015] KECA 331 (KLR), a different bench of the Court held that:“Proceedings before a court of law should not be stopped on the basis of speculation or apprehension. At this interlocutory stage, the applicant must be able to point out an outright illegality or breach, or violation which does not require protracted arguments; the violation based on the illegality must be plain and obvious. What is not plain and obvious is a matter for a full trial.” 18.Applying these principles to the present case, we observe that the applicant has not demonstrated an “outright illegality” or a “plain and obvious” violation of his constitutional rights that would warrant the extraordinary remedy of a stay of criminal proceedings. The applicant’s fears of conviction and loss of liberty are speculative at this stage. The trial court is constitutionally required to accord him a fair hearing under Article 50 of the Constitution. He may cross-examine witnesses, adduce evidence, and mount a full defence. 19.Furthermore, even if the trial proceeds and results in a conviction, the applicant has a constitutional and statutory right of appeal to the High Court. The 1st appellate court has the power to quash the conviction and set aside any orders of the trial court. There is also an opening for a second appeal to this Court. Whatever the outcome of the criminal trial, the same is reversible through the exercise of the right of appeal, if such an appeal becomes necessary and succeeds. A criminal prosecution is not an irreversible event. A stay of proceedings would delay the partly heard trial, potentially to the prejudice of the witnesses and the administration of justice. We also observe, without purporting to determine the appellant’s appeal, that the mere fact that the dispute has contractual underpinnings does not, without more, render the criminal process an abuse of the court process. 20.We are therefore not persuaded that the intended appeal will be rendered nugatory if we decline to allow the application. The applicant has an adequate remedy in challenging any adverse outcome of the criminal trial through a substantive appeal. The second limb of the twin principles has therefore not been satisfied. 21.Having carefully considered the application, we find that while the applicant has established that his intended appeal is arguable, he has failed to satisfy the second and equally critical limb that if stay is not granted, the intended appeal will be rendered nugatory. Consequently, the notice of motion dated 5th November 2025 is devoid of merit. It is hereby dismissed. The costs of the application shall abide the outcome of the intended appeal. DATED AND DELIVERED AT NAIROBI THIS 15TH DAY OF MAY 2026.W. KORIR................................ JUDGE OF APPEALH. ONG’UDI................................ JUDGE OF APPEALS. OKONG’O................................ JUDGE OF APPEALI certify that this is a True copy of the originalSignedDEPUTY REGISTRAR