Nandwah v Director Public Prosecutions & another (Criminal Application E001 of 2026) [2026] KECA 991 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that withdrawing a criminal case doesn't stop prosecutors from filing the same charges again, and dismissed the applicant's attempt to block that.
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 should be granted orders of injunction and stay of execution of the High Court ruling of 19th January 2026 pending the hearing and determination of his intended appeal, under Rule 5(2)(b) of the Court of Appeal Rules
Key legal issues
#Whether the intended appeal was arguable under the first limb of the Rule 5(2)(b) test
The application failed at the threshold because the applicant identified no arguable issue following the dismissal of his revision application challenging the withdrawal of the Nyahururu criminal case.
The court applied the settled test from Trust Bank Ltd v Ivestech and Kang'ethe Kinyanjui v Ketter: an applicant must first demonstrate the appeal is arguable, then that it would be rendered nugatory if interim relief is denied. The applicant merely asserted high prospects of success without identifying any ground. His contention that reinstitution of the Rumuruti case after withdrawal of the Nyahururu case violated his rights was not arguable, because a Section 87(a) discharge does not bar fresh prosecution on the same facts.
Effect of withdrawal of criminal charges under Section 87(a) of the Criminal Procedure Code
Such a withdrawal results in a discharge that does not operate as a bar to subsequent prosecution on the same facts.
The court endorsed the High Court's finding that a statutory withdrawal consented to by the court before judgment results in a discharge that does not undermine the Constitution and in fact supports access to justice. Because the discharge is not an acquittal, it leaves the prosecution free to institute fresh charges, which defeats the applicant's apprehension about re-arrest and renewed prosecution as a basis for interim relief.
Legal principles established
#- A withdrawal of a criminal case under Section 87(a) of the Criminal Procedure Code before the accused is called upon to make their defence results in a discharge which does not bar subsequent prosecution on the same facts.
- An applicant under Rule 5(2)(b) must satisfy the twin conditions - an arguable appeal and the nugatory test - sequentially, failing which the application fails.
Court orders
#- 1.The applicant's application dated 21st January 2026 (referred to in the final order as dated 26th January 2026) is dismissed in its entirety
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nyahururu
- High Court Criminal Review Case No. HCCRREV/E112/2025
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2022 (interim orders pending intended appeal from a supervisory/revision ruling under sections 362 and 365 of the Criminal Procedure Code)
Relief refused
#Injunction restraining the respondents from arresting the applicant pending the intended appeal (prayer b)
The applicant did not identify a single arguable issue; the first limb of the Rule 5(2)(b) test was not satisfied
Injunction against execution of the impugned High Court ruling pending the intended appeal (prayer c)
Failed on the same ground - no arguable appeal; the nugatory limb was not reached
Merger of Nyahururu High Court Criminal Review Case HCCRREV/E112/2025 and Rumuruti Criminal Case SPMCR E280/2025 (prayer d)
Fell with the dismissed application as a whole
Costs of the application and the intended appeal against the respondents (prayer e)
Fell with the dismissed application
Costs
No costs order is stated in the judgment; the dismissal was 'in its entirety' with no express direction on 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.
This Court, in accordance with precedent, has to decide first whether the appeal is arguable, and second whether the intended appeal would be nugatory if these interim orders were denied.
What emerges from the long line of decided cases is that to succeed a supplicant must to satisfy the two conditions sequentially failing which the application would fail.
Under Section 87(a) of the Criminal Procedure Code, the withdrawal of a criminal case by the prosecution before the accused is called upon to make their defence results in a discharge, which explicitly does not operate as a bar to subsequent prosecution based on the same facts.
In the upshot, the applicant’s Notice of Motion application dated 26th January, 2026 fails and his hereby dismissed in its entirety.
Issues in the judgment
#Date discrepancy in the application: the ruling refers to the application dated 21st January 2026 throughout but the final order dismisses an application 'dated 26th January, 2026'.
Grammatical/drafting error in the final order ('his hereby dismissed').
Typographical error in the case number of the dismissed revision application ('HCCRREV/E112/2021' instead of 2025).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nandwah v Director Public Prosecutions & another (Criminal Application E001 of 2026) [2026] KECA 991 (KLR)", Case Analysis (2026). Criminal Application (Rule 5(2)(b)) dated 21st January, 2026, Court of Appeal, Nakuru. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/991/eng@2026-05-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.