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She claims that none would match her personality and the boys too spoke poor English which was a turn off to her. On the other hand, Kethi loves dancing, traveling and hiking during her free time. A stay of execution, injunction and stay of proceedings is not therefore limited to sub-rule 5 2 b of the rule. If the framers of the Rules intended so, the paragraph " order a stay of execution, an injunction or stay of any further proceedings on such terms as the court may think" , would come immediately below and after the sub-rule.
Here, it is designed to apply to both sub-rules 5 2 , a and 5 2 b. In this case however, the notice of appeal lodged by the applicant is in respect of the decision of the High Court on revision which revision had been sought by the applicant. The learned Judge made no positive orders capable of being executed. There are also no further proceedings pending before the High Court.
There are therefore, no proceedings before the High Court to be stayed. It follows therefore, that any order staying proceedings of the High Court will be in vain. In our view, rule 5 2 a of this Court's Rules was improperly invoked. Ondari was plainly right 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.
He invoked rule 5 2 b of this Court's Rules. Although the application was allowed by a majority, the Court was unanimous that criminal proceedings before a magistrate's court would not be stayed pending an appeal from a decision of the High Court under rule 5 2 b. The majority of the members of the Court however, determined that such criminal proceedings would be stayed as there existed precedent for doing so.
The decision in R. Application No. This Court had occasion to consider the issue of jurisdiction under rule 5 2 a. Civil Application No. There, the applicant sought stay of criminal proceedings before a subordinate court pending disposal of an appeal against a judgment of the High Court dismissing the applicant's judicial review application where she had sought an order of certiorari. We held:. This Court will issue and has issued as demonstrated by decisions we have referred to orders prohibiting magistrates' courts from proceeding with criminal trials 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".
The decision in the case of Mary Ngechu supra was followed in the case of Eng. There, we stated:. It is in instances where there are trumped-up charges, or the prosecution is not undertaken according to law, or it is activated by malice and meant to harass the applicant that the Court of Appeal has intervened by dint of its inherent jurisdiction to ensure the ends of justice are met and to prevent the abuse of the process of court, as indeed this is a country that is governed under the rule of law and not the whims of the D.
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. In the application before us, the applicant has invoked the inherent jurisdiction of this Court in addition to the other provisions of the law already referred to at the beginning of this ruling.
We shall, therefore, proceed to consider the merits of the application. The applicant is still bound to demonstrate first that the appeal is not frivolous or that it is arguable and secondly, that if it were to succeed, the success would not be rendered nugatory unless a stay is granted.
See this Court's decisions in Reliance Bank Ltd. On whether the intended appeal is arguable, the applicant drew our attention to the draft memorandum of appeal annexed to this Notice of Motion. The draft enumerates five broad grounds of appeal, namely:. That the learned Judge failed to appreciate that the prosecution had not supplied the applicant with all documents she was entitled to including those that the prosecution intend to rely upon.
That the learned Judge erred by failing to appreciate that the trial magistrate acted in a manner prejudicial to the applicant by reviewing an order of another magistrate of concurrent jurisdiction.
That the learned Judge failed to appreciate that the prosecution had earlier consented to supply the same documents. That the learned Judge failed to appreciate that the ruling of the trial magistrate demonstrated bias and in failing to so appreciate demonstrated bias herself.
Through her advocates, the applicant in her letter dated 3 rd September, sought 28 documents from the office of the D. On the same date, the trial cour t Hon. Mulekyo, Ag. Chief Magistrate made the following order:.
Not all the documents in the applicant's letter of 3 rd September, were supplied as ordered. The failure to supply all the documents became the reason for an application for adjournment on 18 th November, when the trial was expected to commence.
Ondari , who then appeared for the Republic, informed the trial court that some of the documents sought in the letter of 3 rd September, were not in their custody but were in the custody of different agencies. The learned DPPO added that the prosecution would not be relying upon the unfurnished documents and that they could only supply documents in their possession. The trial court then was presided over by Mr. Kiarie C. The learned magistrate in allowing the application for adjournment, reiterated the order that the prosecution do supply the defence with copies of documents they intend to rely on within 14 days of his order.
The trial was then adjourned to 17 th to 21 st March, Come the 17 th of March, , the trial Court was presided over by Hon. Miss Hannah Nd'ung'u C. Counsel for the applicant informed the court that she had lodged an application under a certificate of urgency which, according to her, had to be disposed of before the trial.
The application was then fixed for hearing the next day i. The applicant sought a declaration that her prosecution violated her rights and fundamental freedoms under Articles 48 5. The applicant further alleged that the prosecution was oppressive.
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