Mugure v Attorney-General & 3 others; Director of Military Prosecutions (Interested Party) (Civil Application E103 of 2024) [2025] KECA 2146 (KLR)
The bottom line
#The Court of Appeal refused to pause a serving KDF officer's murder trial, confirming the High Court—not the court-martial—can try soldiers for murder.
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 has satisfied the threshold for grant of a stay of proceedings in a criminal matter, namely whether the intended appeal is arguable and whether it would be rendered nugatory absent a stay
Key legal issues
#Whether the jurisdictional challenge to the High Court's trial of a KDF officer for murder rendered the intended appeal arguable
No. The High Court has original criminal jurisdiction over murder under Article 165, the court-martial is a subordinate court under Article 169, and Sections 56 and 211 of the KDF Act preserve the jurisdiction of civil courts.
The court held that although jurisdiction is a fundamental issue, the intended appeal did not raise an arguable ground. Article 165 confers unlimited original criminal jurisdiction on the High Court, including over murder, while Article 169 recognizes the court-martial as a subordinate court. Sections 56 and 211 of the KDF Act expressly preserve civil courts' jurisdiction to try persons subject to the Act for offences outside Part VI. The applicant therefore failed the first limb of the Rule 5(2)(a) test, and the second limb need not be considered.
The threshold for a stay of criminal proceedings under Rule 5(2)(a)
Rule 5(2)(a) permits stay only in exceptional circumstances, requiring the applicant to show an arguable appeal and that the appeal would be rendered nugatory absent a stay.
The court reiterated the settled two-limb test: the intended appeal must be arguable, and unless a stay is granted the appeal will be rendered nugatory. Because stay of proceedings is a serious judicial action interfering with rights of access to justice and fair hearing, courts must weigh the pros and cons, including expeditious disposal, the prima facie merits, judicial time and expedition in bringing the application. Failure on the first limb disposes of the application.
Legal principles established
#- A stay of proceedings is a serious, grave judicial intervention that suspends pending proceedings and interferes with the right of access to justice, and will only be granted exceptionally under Rule 5(2)(a) where the appeal is arguable and would be rendered nugatory.
- The High Court retains original criminal jurisdiction, including over murder charges against Kenya Defence Forces personnel, notwithstanding the KDF Act.
Court orders
#- 1.The Notice of Motion dated 23rd October 2024 is dismissed
- 2.Costs of the application to the 2nd and 4th respondents and the Interested Party
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Constitutional Petition No. E002 of 2023; High Court Criminal Case No. 18 of 2019 (Republic v Peter Mwaura Mugure)
- Jurisdiction invoked
- Articles 22(1), 29(a), 29(f), 49(1)(h) and 50 of the Constitution of Kenya, 2010, read with Rules 1(2), 5(2)(a) and 61 of the Court of Appeal Rules, 2022
Relief refused
#Stay of further proceedings in High Court Criminal Case No. 18 of 2019 pending the intended appeal
The intended appeal was not arguable; the High Court has jurisdiction over the murder charge and the applicant failed the first limb of the Rule 5(2)(a) test
Costs
Application dismissed with costs to the 2nd and 4th respondents and the Interested Party
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.
Stay of proceedings is a serious and grave judicial intervention because it has the effect of suspending or delaying pending proceedings.
Article 165 of the Constitution clothes the High Court with original jurisdiction in criminal matters, including murder, while Article 169 recognizes the court-martial as a subordinate court.
The applicant has therefore failed to satisfy the first limb under Rule 5(2)(a). Having failed on the first limb, the Court need not consider the second.
For the foregoing reasons, the Notice of Motion dated 23rd October 2024 is devoid of merit and is hereby dismissed with costs to the 2nd and 4th respondents and the Interested Party.
Issues in the judgment
#The judgment as supplied skips paragraph numbering from 12 to 14 (a paragraph numbered 1 appears where 13 would be expected).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mugure v Attorney-General & 3 others; Director of Military Prosecutions (Interested Party) (Civil Application E103 of 2024) [2025] KECA 2146 (KLR)", Case Analysis (2025). Notice of Motion dated 23rd October 2024 (Court of Appeal, Nyeri). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2146/eng@2025-11-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.