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Court of AppealDismissedNot stated in the judgment (Civil Application under Rule 5(2) of the Court of Appeal Rules, arising from intended appeal against Mombasa High Court Petition No. E059 of 2023)· [2025] KECA 1082 (KLR)

Joseph Mutero Gitonga & 1 other v County Government of Mombasa & 5 others

Court of Appeal of Kenya
20 June 2025
1,047 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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The Court of Appeal refused to shield Mombasa bar and liquor business owners from criminal prosecutions while their challenge to county liquor laws continues on appeal.

What this practically means

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Executive summary

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This was a single-judge-panel interlocutory application under Rule 5(2) of the Court of Appeal Rules by the Mombasa County Entertainment, Bars, Pubs, Restaurants, Hotels, Guest Houses, Wines & Spirits Owners Organization and its Chairman, seeking to extend a status quo order issued by Olga Sewe, J., so as to bar the respondents from instituting or conducting criminal prosecutions under the Mombasa County Liquor Licensing Act 2014, the Mombasa County Trade License Act 2014 and the Alcoholic Drinks Control Act 2010, pending determination of an intended appeal against the High Court's dismissal of a constitutional petition challenging the validity of those statutes. The applicants argued the appeal was arguable on 17 grounds, chiefly non-compliance with Article 199(1) on gazettement of county legislation, and that continued prosecutions would render the appeal nugatory. The Court, applying Stanley Kangethe Kinyanjui v Tonny Ketter, accepted that the appeal was arguable, given the Article 199(1) interpretation question. However, on the nugatory limb, it held that the merits of criminal charges lie with the trial courts, that a blanket order prohibiting the institution of charges would be disproportionate and inappropriate, and that the applicant did not fit within the stringent parameters in Diana Kethi Kilonzo v Republic for staying prosecutions. The Court also observed that granting the orders would pre-judge the substance of the appeal, and left the alternative prayer for expedition to administrative channels. The application was dismissed with no orders as to costs. The decision below was not disturbed; the appeal itself remains pending.

Key legal issues

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01

Arguability of the intended appeal

Holding

The intended appeal is arguable and not frivolous, given the question of compliance with Article 199(1) of the Constitution regarding gazettement of county legislation

Reasoning

Applying the principles in Stanley Kangethe Kinyanjui v Tonny Ketter & 5 others, the Court found a bona fide argument on the interpretation of Article 199(1), which provides that county legislation does not take effect unless published in the Gazette, and whether there was compliance in enacting the impugned statutes. Arguability was therefore satisfied.

p. 2
02

Nugatory value of the appeal if orders are declined

Holding

Declining the orders sought will not render the appeal nugatory; the application for stay of prosecutions fails

Reasoning

The Court held that the merits of criminal charges are for the trial courts, and a blanket prohibition on instituting charges would be disproportionate. The applicant did not fit within the Diana Kethi Kilonzo parameters (malice, abuse of process, improper motive, or derogation of constitutional rights), and granting the orders would pre-judge the substance of the appeal. The expedited-hearing alternative was left to administrative channels.

p. 2

Legal principles established

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  • Under the Court's inherent jurisdiction and Rule 5(2), a blanket order barring or prohibiting the institution of criminal charges pending an appeal will not issue; it is disproportionate and inappropriate, as the merits of such charges fall to be determined by the trial courts
  • Stay or suspension of criminal proceedings pending appeal is granted only sparingly, where the prosecution is actuated by malice, abuse of process, improper motive, or in derogation of the applicant's constitutional rights

Court orders

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  1. 1.The application dated 8th November 2024 is dismissed
  2. 2.No orders as to costs
On appeal from
High Court of Kenya at Mombasa
Mombasa High Court Petition No. E059 of 2023
Jurisdiction invoked
Rule 5(2) of the Court of Appeal Rules (discretionary interlocutory relief pending determination of an intended appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Joseph Mutero Gitonga & 1 other v County Government of Mombasa & 5 others", Case Analysis (2025). Not stated in the judgment (Civil Application under Rule 5(2) of the Court of Appeal Rules, arising from intended appeal against Mombasa High Court Petition No. E059 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1082/eng@2025-06-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.