Simon Nyamanya Ondiba v Director of Public Prosecutions & 3 others; Rose Njeri Macharia (Interested Party) [2019] KECA 642 (KLR)
The bottom line
#The Court of Appeal ruled that civil and criminal cases can run at the same time in Kenya, and refused to pause two criminal prosecutions over a land dispute.
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 intended appeal is arguable
- 2.Whether, if the stay sought is not granted, the intended appeal will be rendered nugatory
Key legal issues
#Whether the intended appeal was arguable
The intended appeal was not arguable because Section 193A of the Criminal Procedure Code expressly permits concurrent civil and criminal proceedings over the same subject matter, undermining the applicant's central ground.
The court weighed the grounds counsel proposed - that the dispute was purely civil, that prosecution was an abuse of process, and that the trial judge conducted a merit review - against the law. It found the express statutory provision permitting concurrent proceedings decisive, while declining to make final determinations on matters reserved for the intended appeal.
Whether the intended appeal would be rendered nugatory if the stay was refused
The appeal would not be rendered nugatory because any prejudice from the criminal proceedings could be compensated by damages in a malicious prosecution claim.
Applying the nugatory principle, the court weighed the competing claims of the parties and adopted the test that the prejudice must be irreversible or not reasonably compensable by damages. It concluded that a malicious prosecution claim would adequately compensate the applicant, so the second Rule 5(2)(b) limb also failed.
Legal principles established
#- Section 193A of the Criminal Procedure Code allows concurrent civil and criminal proceedings over the same subject matter.
- Prejudice suffered by an accused in criminal proceedings is capable of being compensated by damages in a claim for malicious prosecution, and such compensation negates nugatory-ness under Rule 5(2)(b).
- An applicant under Rule 5(2)(b) need not establish a multiplicity of arguable grounds; a single arguable issue suffices.
Court orders
#- 1.The application under Rule 5(2)(b) seeking stay of Criminal Case Nos. 2067 of 2016 and 2788 of 2016 is dismissed
- 2.Costs of the application shall abide the outcome of the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Judicial Review Misc. Applic. No. 440 of 2017
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Stay of further proceedings in Criminal Case Nos. 2067 of 2016 and 2788 of 2016 pending the intended appeal
The applicant failed to establish the twin Rule 5(2)(b) principles of arguability and nugatory-ness; Section 193A of the Criminal Procedure Code permits concurrent civil and criminal proceedings
Costs
Costs of this application shall abide the outcome of the intended appeal.
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.
Accordingly, the applicant having failed to establish the twin principles, we find that the application lacks merit and is hereby dismissed. Costs of this application shall abide the outcome of the intended appeal.
This is because of the clear provisions under Section 193A of the Criminal Procedure Code which allows concurrent civil and criminal proceedings over the same subject matter.
we have to satisfy ourselves that he has demonstrated firstly, that he has an arguable appeal or an appeal that is not frivolous. Secondly, that if the order sought is not granted, the intended appeal will be rendered nugatory, if it eventually succeeds.
In our view, in the event the intended appeal is successful, any prejudice suffered by the applicant on account of the criminal proceedings are capable of being compensated by damages in a cause of action founded on malicious prosecution.
Issues in the judgment
#The judgment states the High Court ruling was dated 5th March, 2007 in the body of the ruling, while the cause title and elsewhere state 5th March, 2018 - an apparent typographical error.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Asanyo & another v Inspector General of Police & 4 others (Civil Appeal (Application) E086 of 2025) [2026] KECA 1140 (KLR)[2026] KECA 1140 (KLR)12 Jun 2026
Cite this brief
#Cite this brief
Caselaw, "Simon Nyamanya Ondiba v Director of Public Prosecutions & 3 others; Rose Njeri Macharia (Interested Party) [2019] KECA 642 (KLR)", Case Analysis (2019). Civil Application No. NAI. 147 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/642/eng@2019-04-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.