Elsek & another v Director of Public Prosecutions (Criminal Application E012 of 2025) [2026] KECA 641 (KLR)
The bottom line
#The Court of Appeal refused to halt a Mombasa criminal trial, ruling that a possible conviction can be corrected on appeal, so no stay was needed.
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 stay is not granted, the intended appeal will be rendered nugatory
Key legal issues
#Arguability of the intended appeal
The intended appeal was arguable; a key candidate ground was whether a letter from the Child Protection Unit can lawfully substitute for an entry of complaint in an occurrence book and its implication for the right to a fair trial.
The court, mindful not to pronounce on the merits, identified at least one bona fide ground: whether a CPU letter can constitute a formal complaint in place of an OB entry, touching on fair-trial rights. Since a single bona fide ground suffices under Rule 5(2)(b), the limb was satisfied on the grounds highlighted in the application.
Nugatory prejudice if stay is not granted
The applicants failed to establish nugatory prejudice because continuation of the criminal trial is not irreversible: they retain a right of appeal to the High Court and a further second appeal to this Court.
The court reasoned that a stay pending appeal is warranted only where the event to be stayed is irreversible or not compensable in damages. Here, if convicted, the applicants may appeal to the High Court and, if unsuccessful, mount a second appeal on matters of law to this Court. Their apprehension of unfair trial was thus unfounded and the second limb of the twin test failed.
Legal principles established
#- An application under Rule 5(2)(b) must satisfy the conjunctive twin principles of arguability and nugatory prejudice; satisfying only one limb is insufficient.
- An arguable appeal need not raise multiple grounds; a single bona fide arguable ground suffices.
- A decision of the High Court in exercise of its revisionary/supervisory jurisdiction is deemed a decision in its appellate jurisdiction, so an appeal therefrom to the Court of Appeal is a second appeal lying on matters of law only.
- In a Rule 5(2)(b) application for stay of a criminal trial, the court must also consider the prejudice that halting the trial may have on the complainant's right to speedy processing of the complaint, and each case turns on its own circumstances.
Court orders
#- 1.The Notice of Motion dated 8th July 2025 is dismissed
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Mombasa
- Mombasa/HCCREV/E187/2024 (Criminal Revision No. E187 of 2024)
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Stay of the ruling and orders of Micheni, J. of 26th June 2025 in Mombasa/HCCREV/E187/2024 and of the criminal proceedings in Mombasa/MCCR/E569/2022 pending appeal
Although the appeal was arguable, the applicants failed to demonstrate nugatory prejudice because they retain avenues of appeal to the High Court and a second appeal to this Court
Costs
The application was dismissed with no order as to costs.
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.
While the intended appeal is arguable, the applicants have failed to demonstrate that it will be rendered nugatory absent stay. Simply put, the applicants have failed to satisfy the conjunctive twin principles under Rule 5(2) (b) of this Court’s Rules. Accordingly, the Notice of Motion dated 8th July 2025 is hereby dismissed but with no order as to costs.
The question as to whether an appeal would be rendered nugatory depends on whether what is being stayed, if allowed to happen, is reversible or, if not reversible, damages would reasonably compensate the aggrieved party.
an arguable appeal need not raise multiple arguable grounds. Even a single bona fide ground would sufice
Where like here stay is sought against proceedings of a criminal trial, the Court must also bear in mind the prejudice that the halt of the trial may have on the right of the complainant/s to speedy processing of the complaint.
Issues in the judgment
#The judgment states the trial court dismissed the application dated 29th May 2024 because it was similar to that of 6th February 2024, yet paragraph 4 says the application was dismissed with the ruling that the charges could be sustained and no error on the face of the record warranted revision; the record is acknowledged as scanty.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Elsek & another v Director of Public Prosecutions (Criminal Application E012 of 2025) [2026] KECA 641 (KLR)", Case Analysis (2026). Notice of Motion dated 8th July 2025 (Criminal Application). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/641/eng@2026-03-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.