Susan Mboo Ng'ang'a v The Hon. Attorney General & 2 Others
The bottom line
#Kenya's Court of Appeal refused to pause a corruption prosecution, ruling that an ongoing fair trial cannot make an appeal pointless.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant demonstrated an arguable appeal
- 2.Whether the appeal would be rendered nugatory unless a stay of proceedings and execution is granted
Key legal issues
#Arguability of the intended appeal
The appeal was arguable on whether Attorney General consent must precede prosecution under ACECA and whether the judge disregarded precedent.
The court found the provisions of section 12 of the Prevention of Corruption Act were not carried into section 35 of ACECA, which deals only with investigative reports to the Attorney General. Whether consent must precede prosecution, and whether the judge ignored stare decisis or could distinguish the two Court of Appeal decisions, were bona fide arguable points. An arguable appeal need not succeed.
Nugatory value of the appeal
The appeal would not be rendered nugatory if the criminal trial proceeded, because courts of law have inbuilt safeguards protecting the applicant's right to a fair trial.
The applicant would remain before a court established under Article 169 of the Constitution with sufficient safeguards to ensure a fair trial at first instance or on appeal. Any adverse outcome would be reversible on appeal, so the twin test failed on the second limb notwithstanding arguability.
Abuse of court process
The court agreed with the third respondent that the applicant's serial applications after obtaining a de novo trial reeked of mala fides, though it said no more.
After successfully obtaining an order that her trial commence de novo, the applicant immediately filed a constitutional petition alleging infringement of rights; the court observed that on its face those actions reeked of mala fides but declined to make definitive findings, consistent with the Rule 5(2)(b) principle against final determinations at that stage.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy both twin principles: an arguable appeal and that the appeal will be rendered nugatory without a stay.
- Section 35 of the Anti-Corruption and Economic Crimes Act does not replicate the consent requirement in section 12 of the repealed Prevention of Corruption Act.
Court orders
#- 1.The motion dated 13th August 2015 is dismissed with costs to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nyeri
- Constitutional Petition No. 5 of 2013 (also referred to as No. 50 of 2015)
- Jurisdiction invoked
- Rules 5(2)(b) and 47(1) of the Court of Appeal Rules
Relief refused
#Stay of further proceedings and execution of the judgment and decree of the High Court pending the intended appeal
Appellant failed to demonstrate the appeal would be rendered nugatory; trial court has inbuilt safeguards ensuring a fair trial
Costs
The motion is dismissed with costs to the respondents.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In an application under Rule 5(2)(b) an applicant has to demonstrate that he/she has an arguable appeal and secondly that the appeal (or intended appeal) shall be rendered nugatory unless an order of stay is granted.
It would appear to us that the provisions of Section 12 of the Prevention of Corruption Act were not retained in Section 35 of the Anti-Corruption and Economic Crimes Act.
In view of what we have stated above, we have come to the conclusion that the applicant has not demonstrated that her appeal would be rendered nugatory unless an order of stay is granted. Accordingly the motion is dismissed with costs to the respondents.
Issues in the judgment
#Petition number inconsistency
Judge name inconsistency
Delivery venue inconsistency
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Susan Mboo Ng'ang'a v The Hon. Attorney General & 2 Others", Case Analysis (2017). Civil Application No. NYR 33 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/792/eng@2017-01-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.