Director of Public Prosecutions v Coco & 12 others; Law Society of Kenya & another (Interested Parties) (Civil Application E026 of 2025) [2025] KECA 1519 (KLR)
The bottom line
#Kenya's Court of Appeal paused a High Court case challenging a Watamu criminal prosecution, but refused to push the Magistrate's Court to hurry its ruling.
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 Court should order a stay of proceedings in Malindi High Court Constitutional Petition No. E006 of 2024 pending the hearing and determination of the appeal
- 2.Whether the Court should order that the Chief Magistrate's Court sitting in Kilifi Criminal Case No. 328 of 2024 proceed to deliver its ruling as to whether the accused have a case to answer
Key legal issues
#Whether the intended appeal is arguable under rule 5(2)(b)
The Court found the appeal arguable, isolating three of five draft grounds, including the stay of proceedings at an advanced stage, the two rulings made without calling for the lower court file, and the blanket bar on investigations.
The Court perused the draft Memorandum of Appeal and identified grounds that were not frivolous and merited consideration. It emphasised that on a rule 5(2)(b) application it must not delve into the merits or demerits of the appeal so as not to embarrass the bench hearing the appeal; the significance of the rule is to preserve the substratum of the appeal. A single bona fide arguable ground suffices.
Whether the appeal would be rendered nugatory if stay of the High Court petition proceedings is not granted
The Court was persuaded that the appeal would be rendered nugatory, given the pending ruling on release of the 1st and 2nd respondents' passports scheduled for 19th September 2025 and the risk that they would leave the jurisdiction, with no extradition treaty between Kenya and Italy.
The Court noted the blanket order staying investigations against the 1st to 3rd respondents and the danger of jeopardising both the petition and the criminal proceedings. It declined to second-guess the outcome of the pending passport ruling and held that, to preserve the integrity of the appellate process and avoid a pyrrhic victory, justice lay in staying the petition proceedings and expediting the appeal.
Whether the Court can compel the Chief Magistrate's Court to deliver its pending ruling on a case to answer
The Court declined the prayer, holding that it does not superintend or micro-manage proceedings pending before a Magistrate's Court absent statutory dictate or the interests of justice.
The Court reasoned that the criminal proceedings before the Kilifi Magistrate's Court remain active, and this Court, being at the second tier of any appeal arising from the trial Magistrate's decision, has no business micro-managing how the Magistrate conducts his proceedings. Acceptable appellate practice is to restrain from micro-managing lower courts, relying on Joseph Nduvi Mbuvi vs. Republic and Kenya Deposit Insurance Corporation vs. Richardson & David Limited.
Whether the Court should determine the competency of the intended appeal at this stage
The Court declined to determine competency, holding that the application challenging the competency of the appeal is a matter for separate consideration and determination.
The 1st to 3rd respondents had argued the appeal was incompetent because the Notice of Appeal was filed by the applicant and the 5th respondent while the Record of Appeal was filed by the Republic. The Court held it was not within its purview at that juncture to determine competence, reserving that issue for the pending application under rule 86.
Legal principles established
#- The twin test on a rule 5(2)(b) application is arguability of the appeal and that the appeal, if successful, would be rendered nugatory unless the orders sought are granted.
- Stay of proceedings is a discretionary remedy to be exercised sparingly and only in exceptional circumstances because it interrupts the normal court process.
- The Court of Appeal does not, save in the rarest of circumstances or where the interests of justice demand, superintend over proceedings pending before a Magistrate's Court, and will not order a trial Magistrate to deliver a pending ruling in a rule 5(2)(b) application.
- An appeal is arguable if it raises a single bona fide ground that is not frivolous; it need not necessarily succeed.
Court orders
#- 1.A stay of proceedings in Malindi High Court Constitutional Petition No. E006 of 2024 - Daniel Lo Coco & 2 Others vs. Director of Public Prosecutions & 10 Others, pending hearing and determination of Malindi Civil Appeal No. E029 of 2025 - Republic vs. Daniel Lo Coco & 10 others
- 2.Malindi Civil Appeal No. E029 of 2025 shall be heard on a priority basis, within the next sixty (60) days from the date of delivery of the ruling
- 3.Costs shall be in the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Malindi
- Malindi High Court Constitutional Petition No. E006 of 2024
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2022; Article 164(4)(a) and (b) of the Constitution
Relief refused
#An order that the Chief Magistrate's Court sitting in Kilifi Criminal Case No. 328 of 2024 do proceed to deliver its ruling as to whether the accused have a case to answer
The Court held it is not within its purview in a rule 5(2)(b) application to order a trial Magistrate to deliver a pending ruling; appellate courts should not micro-manage proceedings in courts below them.
Costs
Costs shall be in the 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.
That there be a stay of proceedings in Malindi High Court Constitutional Petition No. E006 of 2024 - Daniel Lo Coco & 2 Others vs. Director of Public Prosecutions & 10 Others, pending hearing and determination of the appeal, namely Malindi Civil Appeal No. E029 of 2025Republic vs. Daniel Lo Coco & 10 others.
That Malindi Civil Appeal No. E029 of 2025- Republic vs. Daniel Lo Coco & 10 others shall be heard on a priority basis, within the next sixty (60) days from the date of delivery of this ruling.
we find and hold that it is not within our purview to order in a rule 5(2)(b) application the learned trial Magistrate to deliver the pending ruling.
The twin test is that an applicant must demonstrate that the appeal or intended appeal is arguable; and that unless the orders sought are granted the appeal, if successful, shall be rendered nugatory.
That costs shall be in the appeal.
Issues in the judgment
#The judgment gives inconsistent dates for the High Court ruling: it is described as dated 25th April 2025 in one passage, but as 24th May 2025 in the applicant's submissions.
The judgment gives inconsistent numbers for the criminal case in the Magistrate's Court, variously described as Criminal Case No. 328 of 2024, Criminal Case No. E384 of 2024, and Kilifi Senior Principal Magistrate Criminal Case No. 328 of 2024.
The 1st respondent's name appears inconsistently as 'Daniel Lo Coco' and 'Daniele Lo Loco' within the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Director of Public Prosecutions v Coco & 12 others; Law Society of Kenya & another (Interested Parties) (Civil Application E026 of 2025) [2025] KECA 1519 (KLR)", Case Analysis (2025). Malindi Civil Application arising from Malindi Civil Appeal No. E029 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1519/eng@2025-09-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.