Varsani & 2 others v Republic (Criminal Appeal (Application) E072 of 2025) [2026] KECA 1004 (KLR) (29 May 2026) (Ruling)

Varsani & 2 others v Republic (Criminal Appeal (Application) E072 of 2025) [2026] KECA 1004 (KLR) (29 May 2026) (Ruling) Neutral citation: [2026] KECA 1004 (KLR) Republic of Kenya In the Court of Appeal at Mombasa Criminal Appeal (Application) E072 of 2025 AK Murgor, KI Laibuta & GW Ngenye-Macharia, JJA May 29, 2026 Between Shivji Jadva Parbat Varsani 1st Applicant Paresh Shivji Jadva Varsani 2nd Applicant Victor Arara Were 3rd Applicant and Republic Respondent (Being an application for stay of execution and further proceedings pending appeal against the Ruling and Orders of the High Court of Kenya at Mombasa (W. K. Micheni, J.) dated 14th November 2025 in Revision Case No. E220 of 2025) Ruling 1.The genesis of the instant application for stay is the applicants’ Notice of Motion dated 30th September 2025 filed in Mombasa High Court Criminal Revision Case No. E220 of 2025 relating to the proceedings in Mombasa Chief Magistrate’s Court Criminal Case No. E1007 of 2021 seeking, inter alia, that the High Court do “call for the record of proceedings in Mombasa Criminal Case No. E1007 of 2021 and make an order setting aside the ruling and directions given and issued on 3rd September 2025 dismissing the applicants’ Motion dated 29th July 2025 and direct that the said application be heard inter parties by any other court other than the trial court”; and that costs of the application be provided for. 2.The applicants’ case was that their application dated 29th July 2025 was prompted by discovery of material evidence that had been marked as an exhibit by a senior police officer during the prosecution’s case in May 2022 and formally produced in court in July 2025; that they had requested to be supplied with certified copies of the exhibits, which the trial court had previously allowed; that the source of the exhibit was unknown to the investigating officer and that, because the charges involved forgery and uttering false documents, the evidence was critical to their defence and to their ability to effectively challenge the prosecution case; and that their advocate had informed the trial court why the scheduled hearing could not proceed and had sought directions that the pending application be heard first but, instead, the court dismissed it without a hearing. Accordingly, the applicants urged the High Court to exercise its supervisory and constitutional jurisdiction to set aside the trial court’s ruling. 3.Gathering from the impugned ruling in the face of the incomplete record, the respondent opposed the application on the grounds set out in the replying affidavit sworn by one Brenda Ogada (Principal Prosecution Counsel), namely: that the applicants had on numerous occasions sought adjournments, causing inordinate delay and inconvenience to the prosecution and its witnesses; that, although the applicants had successfully applied to have two prosecution witnesses recalled for further cross-examination, one based in London and another in Nairobi, they repeatedly sought adjournments whenever those witnesses attended court, leading to unnecessary expense and delay; that the trial magistrate acted within the law in dismissing the applicants’ application seeking to be furnished with exhibits already produced in evidence by the prosecution; and that, once produced, the exhibits become the property of the court and remain in its custody to preserve the integrity of the trial court. 4.In its ruling dated 14th November 2025, the High Court (W. K. Micheni, J.) found that no credible evidence had been placed before the court to demonstrate actual or perceived bias on the part of the trial Magistrate; that the applicants sought adjournments and delayed the proceedings even after securing the recall of prosecution witnesses who had attended court, including one from abroad; that this pattern of conduct, together with the filing of multiple similar applications before different courts, demonstrated their intention to delay and frustrate expeditious conduct of the trial; that the applicants had been accorded a fair hearing and had exercised their rights under the law; and that the trial Magistrate had properly dismissed the application of 29th July 2025 for want of merit and as an abuse of the court process. The court therefore dismissed the applicants’ revision application and directed the trial court to proceed expeditiously with the main case to conclusion. 5.Aggrieved by the learned Judge’s decision, the applicants moved to this Court on appeal vide a Memorandum of Appeal dated 18th December 2025 faulting the learned Judge for, inter alia: holding that the trial court correctly dismissed the applicant’s application on the alleged lack of merit when that motion was yet to be heard and determined on merit; dwelling on the issue of recusal when the issue was not raised before the court and while pending before the trial court; making a determination on the issue of recusal, which influenced the trial court’s decision when dismissing the application for recusal on 3rd December 2025; misinterpreting the provisions of section 362 of the CPC, which empowers the court to call for and examine the record of any criminal proceedings before a subordinate court; misapprehending the exercise of her supervisory powers under section 364 of the CPC; and for failing to appreciate that the trial court’s dismissal of the applicants’ application occasioned a miscarriage of justice and violated the applicant’s right to a fair trial. 6.In their Motion dated 18th December 2025 made under rule 5(2)(a) of the Court of Appeal Rules, 2022, the applicants sought stay of execution of the impugned orders in Mombasa Criminal Revision No. E220 of 2025 dated 14th November 2025 as well as stay of proceedings in the Mombasa Chief Magistrates Court Criminal Case No. E1007 of 2021 pending hearing and determination of their intended appeal. They also sought costs of their application. 7.Their Motion is supported by the 1st applicant’s affidavit sworn on 18th December 2025 and his supplementary affidavit sworn on 20th January 2026 in which he essentially deposed to the grounds on which the Motion and their intended appeal were founded. 8.The instant Motion is founded on a whopping 14 grounds, most of which are needlessly argumentative, and which delve into the perceived merits of their intended appeal against the grain of rule 88 of this Court’s Rules. With all due respect, matters encroaching on the merits of the appeal are arenas to which we cannot descend in determination of their Motion under rule 5(2) (a) of this Court’s Rules. 9.However, relevant to the Motion before us, the applicants contend: that the trial court had acted per incuriam to dismiss their application without being heard; that the dismissal of their application essentially “assists the prosecution to suppress evidence”; that the instant appeal touches on their right to a fair trial; that the intended appeal is arguable with overwhelming chances of success; that, if stay is denied, the appeal will be rendered nugatory as the proceedings before the trial court will proceed; that, if the orders sought herein are not granted, it would occasion the applicants miscarriage of justice; and that the respondent will not suffer any prejudice if stay is granted. 10.In support of the Motion, counsel for the applicants, M/s. Wachira King’ang’ai & Company, filed written submissions dated 19th January 2026 citing 3 judicial authorities, namely: Goddy Mwakio & Another v Republic [2011] eKLR; and Republic v The Kenya Anti-Corruption Commission & 2 Others [2009] KECA 387 (KLR) for the proposition that an order for stay of proceedings is made sparingly and only in exceptional circumstances, and that this Court has the jurisdiction to grant this order; and Trust Bank Limited & Another v Investech Bank Limited & 3 Others [2000] KECA 38 (KLR), highlighting the twin principles that are required to be satisfied to merit grant of orders in an application under rule 5(2) (b). Accordingly, they urged the Court to grant the applicants’ Motion as prayed. 11.Notably, the respondent did not reply to the applicants’ Motion or file any written submissions. 12.In our considered view, two issues commend themselves for our determination, namely: whether the applicants have an arguable appeal; and whether their appeal would be rendered nugatory if the stay orders sought are not granted. 13.In their Motion, the applicants seek two principle orders, namely stay of execution of the impugned orders in Mombasa Criminal Revision No. E220 of 2025 dated 14th November 2025; and stay of proceedings in the Mombasa Chief Magistrates Court Criminal Case No. E1007 of 2021 pending hearing and determination of their intended appeal. 14.As this Court pronounced itself time and again, for an applicant to merit stay orders pursuant to rule 5(2) (b) of the Court of Appeal Rules pending appeal, he or she must demonstrate to the satisfaction of the Court that he or she has an arguable appeal; and that the appeal (or intended appeal as the case may be), if successful, would be rendered nugatory absent stay. The two requirements constitute what is commonly referred to as the twin principles that must be satisfied before such orders can avail (see Anne Wanjiku Kibeh v Clement Kungu Waibara and IEBC [2020] eKLR; and Yellow Horse Inns Limited v A. A. Kawir Transporters & 4 Others [2014] eKLR). 15.A cursory look at the applicants’ draft memorandum of appeal in the backdrop of the record as put to us reveals numerous substantive issues of law and fact deserving of the Court’s inquiry on appeal. Moreover, and as this Court has often stated, even one bona fide ground of appeal is adequate to satisfy the first limb of the twin principle. University of Nairobi v Ricatti Business of East Africa [2020] eKLR is a case in point. 16.Be that as it may, it is not lost on us that, in the impugned ruling and orders made in Mombasa Criminal Revision No. E220 of 2025, the learned Judge merely dismissed the applicants’ application for review. Simply put, those are negative orders incapable of being stayed. 17.We call to mind this Court’s decision in Western College of Arts and Applied Sciences v E. P. Oranga & 3 others [1976] eKLR where the Court had this to say on similar orders:“But what is there to be executed under the judgment, the subject of the intended appeal? The High Court has merely dismissed the suit, with costs. Any execution can only be in respect of costs. In Wilson v Church the High Court had ordered the trustees of a fund to make a payment out of that fund. In the instant case, the High Court has not ordered any of the parties to do anything, or to refrain from doing anything, or to pay any sum. There is nothing arising out of the High Court judgment for this Court, in an application for a stay, it is so ordered.” 18.In the same vein, the Court of Appeal in Co-operative Bank of Kenya Limited v Banking Insurance & Finance Union (Kenya) [2015] eKLR held that:“Following that approach of looking at the nature of the orders even before delving into the said principles in a Rule 5(2) (b) application the Court has identified negative orders as orders that are incapable of execution. Consequently, an order for stay of execution cannot be issued in respect of such an order. That was the position in Executive Estates Limited v Kenya Posts & Anor. [2005] 1 E.A. 53 where it was stated:‘… The order which dismissed the suit was a negative order which is not capable of execution…’” 19.Likewise, the Court of Appeal in George Ole Sangui & 12 others v Kedong Ranch Limited [2015] eKLR held that:“20.In the instant case, the High Court dismissed the suit in which the applicants were seeking a declaration and an order to be registered as the proprietors of the suit land on the basis of the doctrine of adverse possession. The dismissal order cannot be enforced and is not capable of execution. It is not a positive order requiring any party to do or to refrain from doing anything. It does not confer any relief. It simply determined the suit by making a finding that the claimant was not entitled to the reliefs or orders sought and dismissed the suit against the respondent. That was not a positive order that required any party to do or refrain from doing anything. It was not capable of execution or enforcement. The act of dismissal of the suit could not be stayed. It is our finding that to the extent to which the application seeks stay of the order of the dismissal of the suit it cannot be granted.” 20.As was the case here, the order dismissing the applicants’ review application cannot be enforced. It is not capable of execution, and neither is it a positive order requiring either party to do or refrain from doing anything, and does not confer any relief capable of enforcement. Accordingly, the stay orders sought in the instant Motion do not avail. 21.Turning to the question as to whether the applicants’ Motion for stay of proceedings in the trial court is merited, we take to mind this Court’s decision in Diana Kethi Kilonzo v Republic [2016] KECA 19 (KLR), the Court of Appeal held categorically that "this Court has no jurisdiction to grant stay of criminal proceedings pending before the Chief Magistrate's Court under rule 5(2)(a) of our Rules." 22.The Court further reaffirmed the holding from the earlier case of Mary Ngechi Ngethe v The Attorney General & Another [2012] eKLR. Quoting it with approval, the Court observed that "[t]here cannot be any doubt that this Court cannot stay criminal proceedings in the magistrate's courts in the manner sought in this application because there is no jurisdiction to do so." The Court went further to qualify the narrow exceptional circumstances under which any intervention might be warranted, distinguishing those from a routine application, and clarified that it would only intervene in instances "where it found evidence that the trial was actuated by malice and abuse of process, where such prosecution was in derogation of the appellant's constitutional rights and instituted with the pre-dominant and improper intent to harass and exert pressure on the appellant." 23.This decision is especially instructive because its facts closely parallel the present application: the appeal pending before the Court arose not from the subordinate court proceedings themselves, but from the High Court's ruling, and the stay sought targeted a different, lower court entirely. The Court drew a clear jurisdictional boundary— the power under Rule 5(2) is tethered to the proceedings or orders of the court being appealed from, not a subordinate court standing apart from the appellate chain. 24.In Benson Khwatenge Wafula v Director of Public Prosecutions; Ethics and Anti-Corruption Commission & 2 others (Interested Parties) [2020] eKLR, the Court articulated the governing principle in precise terms thus:"The interlocutory reliefs of stay of execution and stay of proceedings must relate to orders or proceedings of the court appealed. Where, as here, what are sought to be stayed are proceedings, not of the High Court whose orders are subject of the intended appeal, but the subordinate court, this Court ought to decline the invitation." 25.The Court then reinforced the jurisdictional bar by expressly endorsing Kilonzo, noting that the Kilonzo decision"... went as far as to state that we do not have jurisdiction to stay proceedings at Magistrate's Courts.” The Court also remarked on the structural limitation of rule 5(2)(b) itself as a textual bar, observing that the rule ... "is quite explicit in its terms". 26.Having carefully considered the record as put to us, we find no evidence to suggest that the trial in issue was actuated by malice and abuse of process. Neither have the appellants demonstrated that their prosecution was in derogation of their constitutional rights, or instituted with the pre-dominant and improper intent to harass and exert pressure on them. Their grievance related to procedural matters touching on evidential materials relied upon by the prosecution at the trial, which was substantially underway, and which had been adjourned from time to time, creating the impression that the applicants were intent on derailing the process. Whether this was the real intention, it is not for us to judge. For our part, we can only say that the impugned orders were suitably designed to facilitate expeditious determination of the trial before the subordinate court that appears to have stagnated midway. 27.In conclusion, it is instructive that the jurisdiction of the Court of Appeal under rule 5(2) (a) and (b) of the Court of Appeal Rules is strictly circumscribed to the proceedings and orders of the superior court from which the appeal emanates. Accordingly, the Court has no power to stretch that jurisdiction downward to stay criminal proceedings pending in a subordinate court which is not a party to the appellate chain. To do so would be an impermissible jurisdictional overreach, which explains why the Court has consistently declined such invitations in similar cases. 28.Consequent upon our findings and foregoing reasons, and on the authority of the afore-cited cases, we find that the applicants’ Notice of Motion dated 18th December 2025 fails and is hereby dismissed. DATED AND DELIVERED AT MOMBASA THIS 29TH DAY OF MAY, 2026.A. K. MURGOR..............................JUDGE OF APPEALDR. K. I. LAIBUTA CArb, FCIArb...............................JUDGE OF APPEALG. W. NGENYE-MACHARIA..............................JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR