https://new.kenyalaw.org/akn/ke/judgment/keca/2026/991

Nandwah v Director Public Prosecutions & another (Criminal Application E001 of 2026) [2026] KECA 991 (KLR) (22 May 2026) (Ruling) Neutral citation: [2026] KECA 991 (KLR) Republic of Kenya In the Court of Appeal at Nakuru Criminal Application E001 of 2026 JM Mativo, MB Kairaria & AI Hassan, JJA May 22, 2026 Between Nathaniel Jeremiah Nandwah Applicant and Director Public Prosecutions 1st Respondent DCI Nyahururu 2nd Respondent (An application for injunction pending hearing and determination of an intended appeal from the ruling of the High Court of Kenya at Nyahururu (L. Mutende, J.) delivered on 19th January 2026 in HCCR.REV No. E112 0F 2025) Ruling 1.Nathaniel Jeremiah Nandwah the applicant was charged with and pleaded not guilty to three counts in Nyahururu Chief Magistrates Court Criminal Case No. CMCR E568 of 2025 as follows: CI] Forgery contrary to Section 345 as read with section 349 of the Penal Code; CII] Making a document without authority contrary to Section 357[a] of the Penal Code Code; and CIII] Uttering a false document contrary to Section 353 of the Penal Code. The three charges were all in connection with alleged forging, making and uttering a title deed for Bahati /Kabatini Block 1/13588 purporting it to be a genuine title at Nyahururu township on 3rd July 2024. 2.The hearing of the case commenced before Hon. S. Mogute, SPM Nyahururu but was withdrawn under Section 87[a] of the Criminal Procedure Code by the DPP on 6th November, 2025 with the consent of the trial court. 3.Aggrieved by that withdrawal, the applicant invoked the supervisory jurisdiction of the High Court by filing High Court Criminal Review Case No. CRHCCRRE/E112/2025 at Nyahururu. The applicant urged the High Court to exercise its revisionary powers under sections 362 and 365 of the Criminal Procedure Code and;a.review vary quash and or set aside the order of withdrawal,b.declare that the conduct of the prosecution had made it impossible to conduct a fair trial andc.require the prosecution to proceed with the case on the basis of the documents on record in the withdrawn criminal case and be bound by the decision reached after trial. 4.Before the application for revision was heard the applicant was rearrested and arraigned before the Rumuruti Magistrates Court on 18th December, 2025 in Criminal Case SPMCR E 280/2025 where new charges were read to him and he declined to plead to them on account of the revision application then pending before the High Court at Nyahururu upon which the trial court deferred plea taking to allow the High Court to determine said application. 5.The application for revision was subsequently heard and dismissed by the Hon. L. Mutende J in a ruling delivered on 19th January, 2026 upholding the order withdrawing Criminal case No. Nyahururu Criminal Case No. E568 of 2025. 6.The applicant is dissatisfied by the entire ruling and has formally intimated his intention to appeal to this Court by a notice of appeal dated 21st January, 2026. We note that the said Notice of appeal is erroneously expressed to be filed under Section 66 of the Civil Procedure Act while the applicable rule is Rule 61 [1] of the Court of Appeal Rules 2022. We excuse the error but do not condone it. 7.In his application dated 21st January, 2026 brought under Rule 5[2] [a] of the Court of Appeal Rules, the applicant seeks a raft of five prayers paraphrased as follows:a.Spent.b.This Court of Appeal issues orders of injunction refraining the respondents including any officer under their administration and mandate from arresting Nathan Jeremiah Nandwah any more pending the determination of the intended appeal against the impugned ruling delivered on 19th January, 2026 by the Hon. Lilian Mutende J in Nyahururu, High Court Criminal Case Review HCCRREV/E112/2025 and or Rumuruti Criminal Case SPMCR E280/2025.c.This Court of Appeal issue orders of injunction against the execution of the impugned ruling delivered on Monday 19th January 2026 by Hon. Lilian Mutende in Nyahururu High Court Criminal Review Case HCCRREV /E112/2025 pending the lodging and determination of the intended appeal.d.That Nyahururu High Court Criminal Review Case HCCRREV/E112/2025 and Rumuruti be merged forthwith.e.That the respondents be condemned to pay costs incidental under the impugned ruling in Nyahururu High Court Criminal Case Review HCCRREV/112/2025 and the intended and the intended appeal. 8.The application was brought under certificate of urgency and is premised on grounds that; this Court has jurisdiction to issue orders of injunction against the execution of the ruling of L. Mutende J pending the hearing and determination of the intended appeal; leave to appeal was granted by the judge upon delivery on 19th January, 2026 but the judge declined to grant orders of stay; the applicant was arrested after filing the criminal revision application and before the ruling was delivered; the respondents instituted Rumuruti SPM Criminal Case E280 /2025 while Nyahururu CMCR E568/2025 was pending determination. 9.The applicant is apprehensive that the respondents will arrest him again to advance the prosecution of Rumuruti Criminal Case SPMCR E 280/2025 after the withdrawal of CMCR E568/2025 under Section 87[a] of the Criminal Procedure Code and the dismissal of criminal revision High Court Review Case HCCRREV/E112/2021. 10.He reckons that the dismissal of the criminal revision application will lead to continued prosecution in SPMCR/E280/2025, yet he opposed the prayer for termination of CMCR 568/2025 before his intended appeal is heard and determined. 11.The applicant further avers that he fears that he will be subjected to criminal prosecution in either CMCR E568/2025 or SPMCR /E280/2025 unless the orders sought are granted. 12.The applicant submits that; the two criminal cases exhibit naked violation of his basic human rights and fundamental freedoms and naked abuse of the rule of law; that his intended appeal has tremendous prospects of success; his application is not frivolous, he has brought it without any delay and the Court has the requisite jurisdiction to issue the orders. Based on those grounds, his supporting affidavits and written submissions as highlighted orally he urges that we grant his application. 13.The respondents on their part, oppose the application and pray that we dismiss it as lacking merits. In the response dated 30th March 2026 and written submissions dated 22nd April 2026, the respondent argues that the learned judge exercised her supervisory jurisdiction correctly and lawfully as provided under the Constitution of Kenya 2010 and Sections 362 and 364 of the Criminal Procedure Code. They assert that the appellant’s constitutional rights have not been violated, the appellant has not raised any substantial or arguable question of law and neither has he demonstrated that his appeal has overwhelming chances of success. 14.We have considered the application, the response, the rival submissions and applicable law. The sole question for our determination is whether or not we should grant the applicant’s application dated 21st January 2026. As stated earlier in this ruling the application seeks a raft of prayers the principal of which are prayer (b) and (c) for injunction and stay of execution pending the hearing and determination of the intended appeal. 15.The principles of law that govern the exercise of this Court’s jurisdiction when considering an application for injunction and stay of execution under Rule 5[2] b of this Court’s Rules are well settled in various past decided cases of this Court including the often cited cases of Trust Bank ltd & Another vs Ivestech Bank limited & 3 Others [2013] eKLR and Stanley Kang’ethe Kinyanjui vs Tonny Ketter & 5 others [2013] eKLR. In the latter case the Court stated as follows:“This Court, in accordance with precedent, has to decide first whether the appeal is arguable, and second whether the intended appeal would be nugatory if these interim orders were denied.” 16.What emerges from the long line of decided cases is that to succeed a supplicant must to satisfy the two conditions sequentially failing which the application would fail. 17.In the instant application, though the applicant boldly states that his intended appeal has high chances of success he has not identified a single issue or ground that is arguable consequent to the dismissal of criminal revision application challenging the order allowing withdrawal of Nyahururu Criminal case No. E568 of 2025. His contention that institution of Criminal case Rumuruti SPMCR E280/2025 after the withdrawal of Nyahururu CMCCR E568/2025 exhibit naked violation of his fundamental rights and abuse of the rule of law is not in our view arguable. 18.When dismissing the application for criminal revision for lack of merits the learned High Court Judge pertinently stated at paragraph 25 in the ruling intended to be appealed:“A withdrawal of a charge under Section 87[a] of the Criminal Procedure Code that is grounded in statute consented to by the court before judgment which results into a discharge of the accused does not undermine what is provided for in the Constitution, in fact it supports access to justice. The justice system must be accessible to both the accused and victim[s] therefore discontinuance of a suit, a procedural tool which enhances justice.’’ 19.It is trite that the withdrawal of a criminal case under Section 87 [a[ of the criminal Procedure Code by the prosecution before the accused is called upon to make their defence results in a discharge, which explicitly does not operate as a bar to subsequent prosecution based on the same facts. 20.Under Section 87(a) of the Criminal Procedure Code, the withdrawal of a criminal case by the prosecution before the accused is called upon to make their defence results in a discharge, which explicitly does not operate as a bar to subsequent prosecution based on the same facts. 21.Having found that the applicant has not satisfied the first condition precedent for the grant of orders of injunction and stay under Rule 5[2] [b] it is not necessary for us to consider whether the appeal would be rendered nugatory. 22.In the upshot, the applicant’s Notice of Motion application dated 26th January, 2026 fails and his hereby dismissed in its entirety. DATED AND DELIVERED AT NAKURU THIS 22ND DAY OF MAY, 2026.J. MATIVO..................................JUDGE OF APPEALMURUNGI B. KAIRARIA..................................JUDGE OF APPEAL AHMED ISSACK..................................JUDGE OF APPEALI certify that this is a True copy of the originalSignedDeputy Registrar