[2019] KEHC 7869 (KLR)
The court found that the applicants, having appealed the dismissal of their earlier application, are entitled to a stay of proceedings in the lower court to safeguard their right to a fair trial. The court exercised its discretion to grant the stay, noting that the right to appeal is fundamental and forms part of...
Source-derived case information.
- Citation
- [2019] KEHC 7869 (KLR)
- Parties
- Applicant: Raphael Sauti Wanjala; Applicant: Mbagatuzinde Gero; Applicant: John Kechula Okota; Applicant: Alfred Wesonga Siduwa; Applicant: Peter Namakhabwa Otuona; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 99 of 2018
- Procedural Posture
- Criminal Revision / Ruling on Application for Stay Pending Appeal
- Outcome
- Application for stay of proceedings granted with conditions.
- Judges
- KW Kiarie
- Legal Topics
- Stay of Proceedings, Right of Appeal, Fair Trial, Criminal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Raphael Sauti Wanjala
Applicant
Mbagatuzinde Gero
Applicant
John Kechula Okota
Applicant
Alfred Wesonga Siduwa
Applicant
Peter Namakhabwa Otuona
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Stay Pending Appeal
Legal Issues
- 1 Whether the applicants are entitled to a stay of proceedings in the Chief Magistrate's Court Criminal Case No. 606 of 2018 pending appeal.
- 2 Whether the applicants' right to a fair trial would be prejudiced if the stay is not granted.
- 3 Whether the applicants should be required to update the trial court on the progress of their appeal.
Ratio Decidendi
The court found that the applicants, having appealed the dismissal of their earlier application, are entitled to a stay of proceedings in the lower court to safeguard their right to a fair trial. The court exercised its discretion to grant the stay, noting that the right to appeal is fundamental and forms part of the fair trial guarantees under the Constitution. However, to prevent abuse of process and ensure expeditious proceedings, the court imposed a condition that the applicants must update the trial court on the progress of their appeal every two months. Failure to comply with this condition would result in the lapse of the stay, allowing the trial court to proceed with the hearing.
Court Disposition
Application for stay of proceedings granted with conditions.
Orders
- Stay of proceedings in Chief Magistrate’s Court Criminal Case No. 606 of 2018 granted pending hearing and determination of the appeal.
- Applicants to update the trial court on the progress of the appeal every two months; failure to do so will result in lapse of the stay.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUSIA
CRIMINAL REVISION NO. 99 OF 2018
RAPHAEL SAUTI WANJALA.....................1ST APPLICANT
MBAGATUZINDE GERO...........................2ND APPLICANT
JOHN KECHULA OKOTA.........................3RD APPLICANT
ALFRED WESONGA SIDUWA..................4TH APPLICANT
PETER NAMAKHABWA OTUONA.......5TH APPLICANT
VERSUS
REPUBLIC.....................................................RESPONDENT
RULING
1. The applicants moved the court by way of Notice of Motion under Articles 50(2) (a), 25 (c) 165 (6) & (7), 159 (1) & (2) and 258 (1) of the Constitution of Kenya. They are seeking the following orders:
a) That this application be certified urgent and the same be heard and determined on priority basis;
b) That this court stays the hearing in the chief Magistrate’s Court Criminal Case No. 606 of 2018 pending the hearing and determination of this application.
c) That this court stays the hearing in the chief Magistrate’s Court Criminal Case No. 606 of 2018 pending the hearing and determination of the appeal filed by the applicants to the Court of Appeal.
d) That the applicant be awarded costs with interest thereon.
2. The application was premised on eleven grounds that their application dated 14th November 2018 was dismissed and they have appealed against the dismissal.
3. The application was opposed by the state through M/s Ngari learned counsel.
4. Every party who is aggrieved by a decision of the court has a right to appeal. This is what fair trial envisages. I will grant the stay.
5. In order to check on possible abuse of the due process, the applicants will be expected to keep the trial court informed of the progress in Court of Appeal every two months. If they fail to do so, the stay herein will lapse and the trial court will be at liberty to schedule the matter for hearing.
6. Each party will bear own costs.
DELIVERED and SIGNED at BUSIA this 28th day of March, 2019
KIARIE WAWERU KIARIE
JUDGE