https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12595

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT BOMET** **CRIMINAL APPLICATION NO. E035 OF 2025** **SIMON KIPRONO SIELE ……………………………..… 1ST APPLICANT** **PHILIP KIPLANGAT TOWETT ………………………… 2ND APPLICANT** **VS** **REPUBLIC ………………………………………..…………RESPONDENT** **RULING** 1. Through the Notice of Motion Application dated 27th November 2025, the Applicants sought the following orders: - 2. Spent. 3. Spent. 4. THAT this Honourable Court be pleased to stay proceedings in Bomet Criminal Case Number 545 of 2023 pending the hearing and determination of Kericho ELC Appeal Number 20 of 2025 and Kericho ELC Appeal Number 21 of 2025. 5. THAT a permanent injunction be issued restraining the Respondents and/or their agents from arresting and/or prosecuting the Applicants before Bomet Law Courts on any offence touching the land parcel known as KERICHO/SOTIK TOWNSHIP/402. 6. THAT this Honourable Court be pleased to issue such orders that it deems fit and just to grant in the circumstances. 7. The Application was brought under **Articles 1, 22, 23(1) (2), 48, 50 and 159 of the Constitution of Kenya**. It was premised on the grounds on the face of the Application and further by the Supporting Affidavit sworn by Philip Kiplangat Towett on 27th November 2025. **The Applicants’ case** 1. The 2nd Applicant stated that he purchased KERICHO/SOTIK TOWNSHIP/402 from the 1st Applicant sometime before the year 2006 and the same was transferred to him and was issued with a title deed. That one David Cheruiyot trespassed on his land claiming that he had purchased the same from the 1st Applicant. 2. It was the 2nd Applicant’s case that from the green card, the said David Cheruiyot had not been registered as a proprietor of KERICHO/SOTIK TOWNSHIP/402. That in the year 2021, David Cheruiyot colluded with officers from the Criminal Investigations Department and charged him alongside the 1st Applicant with the offence of conspiracy to defraud contrary to **section 317 of the Penal Code** in Bomet Criminal Case Number E148 of 2021. It was the 2nd Applicant’s further case that he lodged a complaint at the DPP and the Respondent dropped the charge against them due to insufficient evidence. 3. The 2nd Applicant stated that he filed Sotik ELC Suit Number E003 of 2022 jointly with his daughter against the complainant seeking a declaration that KERICHO/SOTIK TOWNSHIP/402 belonged to him. That before the matter was determined, they (Applicants) were arrested and charged in Bomet Criminal Case Number 545 of 2023 with the same charge that he had been charged with previously. The 2nd Applicant further stated that he was served with several documents which allegedly conveyed proprietary rights of KERICHO/SOTIK TOWNSHIP/402 to David Cheruiyot. 4. It was the 2nd Applicant’s case that the transfer form and certificate of lease were a forgery. That the charges against them were malicious. It was the 2nd Applicant’s case that during the pendency of Sotik ELC Suit Number E003 of 2021 this court issued stay orders staying the criminal proceedings in Bomet Criminal Case Number 545 of 2023. 5. The 2nd Applicant stated that the trial court in Sotik made a Ruling in their favour and declared that KERICHO/SOTIK TOWNSHIP/402 belonged to him. That the court further permanently restrained David Cheruiyot from accessing the said parcel and premises. The 2nd Applicant further stated that the Respondent proceeded to prosecute them despite the existence of the stay order and Judgment of the trial court. 6. It was the 2nd Applicant’s case that the complainant in the criminal case (David Cheruiyot) filed two Appeals being Kericho ELC Appeal Number 20 of 2025 and Kericho ELC Appeal Number 21 of 2025. That the Respondent had continued to prosecute them despite the knowledge that the charge was no longer tenable after the trial court’s Judgement. It was the 2nd Applicant’s further case that the trial court Judgment had not been overturned and it was in the interest of justice that the criminal proceedings be stayed pending the outcome of the two Appeals. 7. I have gone through and considered the Applicants’ written submissions dated 5th July 2026 and it was a recitation of the Applicants’ case as laid out above. **Response** 1. Through the Replying Affidavit dated 22nd December 2025 sworn by No. 90923 PC Patrick Nyaoke, the Respondent stated that the Application was vexatious, lacked merit and ought to be dismissed. That on 3rd October 2005, the complainant purchased KERICHO/SOTIK TOWNSHIP/402 from the 1st Applicant for Kshs 550,000/=. The Respondent further stated that due to limited finances, the complainant decided to partner with the 2nd Applicant to assist him in developing the said parcel. 2. It was the Respondent’s case that as a sign of good faith, the complainant agreed to have KERICHO/SOTIK TOWNSHIP/402 registered in his name and that of the 2nd Applicant and were issued with a Certficate of Lease. That after the Certficate was issued, they (complainant and 2nd Applicant) began developing the parcel by constructing a commercial building. It was the Respondent’s further case that in the year 2009, a dispute arose between the two and the same was resolved by clan elders. 3. The Respondent stated that a condition of the settlement of the dispute was that the complainant would surrender the Certificate of Lease bearing their joint names so as to have KERICHO/SOTIK TOWNSHIP/402 divided into two portions. That upon surrendering the Certificate of Lease, the 2nd Applicant entered into a separate Sale Agreement with the 1st Applicant on 5th November 2025 and caused the entire parcel to be transferred to the 2nd Applicant depriving the complainant of his share of land. 4. It was the Respondent’s case that withdrawal of charges under **section 87A of the Criminal Procedure Code** did not operate as a bar to subsequent proceedings. It was the Respondent’s further case that in line with **section 5 of the Penal Code,** the lower court currently in conduct of Bomet Criminal Case Number 545 of 2023 had requisite jurisdiction to hear and determine the fraudulent transfer of land between the Applicants. 5. The Respondent stated that the pendency of Sotik ELC E003 of 2021 had no bearing and/or nexus with the ongoing criminal proceedings as per the provisions of **section 193A of the Penal Code**. That when the 1st Applicant’s specimen signature was subjected to forensic examination, it was established that the two Sale Agreements had been executed by the 1st Applicant. The Respondent further stated that upon learning this, the complainant reported the matter to the DCI and upon conducting investigations, the Applicants were arrested and arraigned before court vide Bomet Criminal Case Number E148 of 2021. 6. It was the Respondent’s case that after Bomet Criminal Case Number E148 of 2021 under **section 87A of the Criminal Procedure Code,** the complainant lodged a complaint with the ODPP head office. It was the Respondent’s further case that nothing barred the Applicants from seeking the prayer for permanent injunction at the trial court. 7. Through its written submissions dated 22nd April 2026, the Respondent submitted that the Applicants had not made out a case to warrant this court to stay the criminal proceedings in Bomet Criminal Case Number 545 of 2023. That **section 26 of the Land Registration Act** provided that a Certificate issued by the Registrar shall be taken by all courts as *prima facie* evidence that a person named as the proprietor was the absolute and indefeasible owner subject to encumbrances, easements, restrictions and conditions contained or endorsed in the Certificate of Title. The Respondent further submitted that the Certificate issued to the 2nd Applicant was irregularly issued through a corrupt scheme and that led to the charge against the Applicants and that the Land Registrar who issued the Certificate was facing the charge of abuse of office. 8. It was the Respondent’s submission that on the material before the court, there was nothing to show that the Applicants will not receive a fair hearing before the court or that the trial was aimed at achieving an ulterior motive. They relied on **Mary Ngechi Ngethe vs The AG and another C.A Civil Application No. Nai. 157 of 2012 (UR).** It was the Respondent’s further submission that they had already demonstrated a *prima facie* case against them and they had no room to claim malice, abuse of process or derogation of their constitutional rights. 9. The Respondent submitted that the law allowed concurrent civil and criminal proceedings. They relied on **section 193A of the Penal Code.** 10. Through its further written submissions dated 3rd July 2026, the Respondent submitted that the bone of contention in both the criminal and civil case was over the parcel of land known as KERICHO/SOTIK TOWNSHIP/402. That the Applicants’ civil case focused on the ownership while the criminal case focused on fraud. The Respondent further submitted that the standard of proof in civil cases differed exponentially with that of a criminal case. That the latter had a higher and stricter standard of proof. They relied on **Nicholas Mwaniki Waweru & another v Attorney General & 5 others (2017) eKLR.** 11. It was the Respondent’s submission that there was no evidence that they were using the criminal case to derive collateral advantage to the complainant in the civil case. That **Article 157 (10) of the Constitution of Kenya** guaranteed the ODPP to discharge its duties and not to be under the behest of anyone. It was the Respondent’s further submission that the Applicants were inviting the court to interfere with the independence of the ODPP while discharging its constitutionally guaranteed mandate. 12. I have gone through the Notice of Motion Application dated 27th November 2025, the Replying Affidavit dated 22nd December 2025, the Applicants’ written submissions dated 5th July 2026 and the Respondent’s written submissions dated 22nd April 2026 and 31st July 2026. The only issue I have sieved for my determination was whether this court should stay the proceedings in Bomet Criminal Case Number 545 of 2023. 13. In **Waweru v Bor & another [2024] KEHC 6325 (KLR),** the court extensively explained the conditions precedent for grant of a prayer of stay of proceedings to wit: - ***“The principles guiding stay of proceedings were laid down by a 5-judge Bench of the High Court, after looking at our jurisprudential scan on the question of stay of proceedings in the case of William Odhiambo Ramogi & 2 Others v the Honourable Attorney General & 3 Others [2019] eKLR;*** ***a. First, there must be an appeal pending before the higher Court;*** ***b. Second, where such stay is sought in the Court hearing the case as opposed to the higher Court to which the Appeal has been filed and there is no express provision of the law allowing for such an application, the Applicant should explain why the stay has not been sought in the higher Court. This is because, due to the potential of an application for stay of proceedings to inordinately delay trial, there is a policy in favour of applications for stay being handled in the Court to which an appeal is preferred because such a Court is familiar with its docket and is therefore in a position to calibrate any order it gives accordingly;*** ***c. Third, the Applicant must demonstrate that the appeal raises substantial questions to be determined or is otherwise arguable;*** ***d. Fourth, the Applicant must demonstrate that the Appeal would be rendered nugatory if the stay of proceedings is not granted;*** ***e. Fifth, the Applicant must demonstrate that there are exceptional circumstances which make the stay of proceedings warranted as opposed to having the case concluded and all arising grievances taken up on a single appeal; and*** ***f. Sixth, the Applicant must demonstrate that the application for stay was filed expeditiously and without delay.*** ***In the same vein, in Halsbury’s Laws of England, 4th Edition, Vol. 37 at p. 330:*** ***“The stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, and therefore the Court’s general practice is that a stay of proceedings should not be imposed unless the proceedings, beyond reasonable doubt, ought not to be allowed to continue….This is a power which, it has been emphasized, ought to be exercised sparingly, and only in exceptional cases…It will be exercised where the proceedings are shown to be frivolous, vexatious or harassing or to be manifestly groundless or in which there is clearly no cause of action in law or in equity. The applicant for a stay on this ground must show not merely that the plaintiff might not, or probably would not, succeed but that he could not possibly succeed on the basis of the pleading and the facts of this case.”*** ***From the foregoing authorities, it is evident that the stay of proceedings is a radical measure which is only exercised in the most of deserving cases. This is a discretionary power that is exercised by the court sparingly. Hence, granting stay of proceedings pending an appeal over interlocutory matters is decided on the facts of each case and with “due regard to the salutary general rule that appeals are not entertained piecemeal…..”*** 1. Further, the Court of Appeal in **Amario v Amario & 2 others [2026] KECA 1211 (KLR)** held: - ***“Stay of proceedings” as the phrase suggests, is the stoppage of an entire case or a specific proceeding within a case. Such a disruption of judicial proceedings has been described in case law as a drastic order which is only to be deployed in extremely rare cases and with immense circumspection. The principles which should guide a court in exercising its discretion to grant or refuse an application for stay of proceedings were detailed by the Court of Appeal of Nigeria, Abuja Division in the case of NNPC & Anor vs. Odidere Enterprises Nigeria Ltd [2008] 8 NWLR (Pt. 1090) 583 at 616-618, per Aboki, JCA. as follows:*** ***“Stay of Proceedings is a serious, grave and fundamental interruption on the right of a party to conduct his litigation towards the trial on the basis of the substantive merit of his case, and therefore the general practice of the courts is that a stay of proceedings should not be granted, unless the proceedings beyond all reasonable doubt ought not to be allowed to continue.”*** 1. As exhibited by the above authorities, an order for stay of proceedings should be granted in deserving cases and this court’s power to grant such an order is discretionary. The court deals with such matters on a case-to-case basis depending on the facts of each particular case. 2. In the present case, the Applicants stated that this court ought to stay the criminal proceedings in Bomet Criminal Case Number 545 of 2023 pending the complainant’s (David Cheruiyot) two Appeals in Kericho Environmental and Land Court. From my appreciation of the record, the criminal charge and the Appeals in the Kericho ELC Court revolve around the ownership of KERICHO/SOTIK TOWNSHIP/402. In my view, the reasons and the grounds advanced by the Applicants in support of this Application are grounds that they can use in their defences in the criminal case. 3. I say so because that the law allows concurrent criminal and civil proceedings. **Section 193A of the Penal Code** provides: - **Notwithstanding the provisions of any other written law, the fact that any matter in issue in any criminal proceedings is also directly or substantially in issue in any pending civil proceedings shall not be a ground for any stay, prohibition or delay of the criminal proceedings.** 1. In **Jenaro Namu Njamumo v James Kinyua Mwobe [2020] KEHC 386 (KLR),** the court held: - ***“The provision is mandatory and contemplates simultaneous and concurrent Civil and Criminal proceedings. In Pet No. 232/2012 Teresia Wanjiku Mbau & Another –v- Director of Public Prosecution. It was stated that: -*** ***“The law however, is clear on this, the pendency of a civil matter is not a bar to criminal prosecution as Section 193A of the Criminal Procedure Code clearly contemplates simultaneous and concurrent Civil and Criminal Proceedings.”*** ***There is therefore no law preventing the prosecution of the civil case simply because there is a pending criminal appeal whose outcome is yet to be known. Where the law has stated in express terms that the matter can proceed simultaneously and concurrently, there is no room for the court to exercise discretion. The applicant is seeking the discretion of this court to order stay of proceedings. Discretion can only be exercised based on evidence and in the interest of justice.”*** 1. Similarly, in **Yuan v Directorate of Criminal Investigations (Nairobi Regional Office) & another [2025] KEHC 18261 (KLR),** the court held: - ***“This is not to say that this Court cannot quash criminal proceedings which are instituted to achieve a collateral purpose, but that concurrent criminal and civil proceedings per se do not render criminal investigations unlawful.”*** 1. Additionally, the Applicants had to demonstrate that the Respondent’s decision to charge was tainted with malice. The court in **Republic & another v Director of Public Prosecution & 2 others (Interested Parties) [2021] KEHC 2886 (KLR)** held: - ***“The DPP has powers to decide on who to charge based on the evidence at hand. The DPP cannot be directed on who to charge and who not to charge. The law equally allows the DPP to discontinue prosecution if they find it necessary. As to whether the person charged is guilty or not, it is for the court to decide upon conducting a full trial.”*** 1. Similarly, the Court of Appeal in **Communications Commission of Kenya v Office of the Director of Public Prosecutions & another [2018] KECA 631 (KLR)** held that: - ***“The decision whether or not to institute criminal proceedings is purely discretionary. That discretion must however be exercised by the DPP within the constitutional limits, that is, with regard to public interest, the interests of administration of justice and the need to prevent and avoid abuse of the legal process.”*** 1. The Applicants failed to demonstrate that the decision to charge them in Bomet Criminal Case Number 545 of 2023 was tainted or fueled by malice. On the issue of the pendency of both criminal charge (Bomet Criminal Case Number 545 of 2023) and the two Appeals being Kericho ELC Appeal Number 20 of 2025 and Kericho ELC Appeal Number 21 of 2025, it is my finding that the three can proceed simultaneously. 2. In the end, the Notice of Motion Application dated 27th November 2025 has no merit and is dismissed. **Ruling delivered via CTS this 5th day of August, 2026 as directed by the Court.** **.................................** **HON. JULIUS K. NG’ARNG’AR** **JUDGE**