Osman Erdinc Elsek & 1 other v Director of Public Prosecutions
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
#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
- 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
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Osman Erdinc Elsek & 1 other v Director of Public Prosecutions", 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.