Collins Makokha & Felix Mbuvi v Director of Public Prosecutions & Inspector General of Police [2015] KEHC 1848 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

CONSTITUTIONAL PETITION NO.6 OF 2015

COLLINS MAKOKHA ….............................................................1ST APPLICANT

FELIX MBUVI................................................................................2ND APPLICANT

VERSUS

THE DIRECTOR OF PUBLIC PROSECUTIONS...................1ST RESPONDENT

THE INSPECTOR GENERAL OF POLICE.............................2ND RESPONDENT

R U L I N G

1.  The notice of motion by the applicants dated 28. 9.15 prays for stay of this honourable court's order dated 21. 9.15 in which it dismissed their application.The same is supported by the affidavit of GEOFFREY O. YOGO, Counsel for the applicants. The substance of the said application is that if the orders are not granted herein they stand to be charged with the offence of murder which shall render them loose their employment and accuring benefits.

2. The respondent has filed grounds of opposition arguing that there was no positive order made by this court capable of execution and thus there is nothing to be stayed.

3.  I have read both submissions by the parties herein and one fundamental issue is whether the application meets the threshold as set out under Order 42(6) of the Criminal  Procedure Rules. The same provides that for an order of stay to be granted:

42(6) (2)(a) “the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable  delay and

(b) Such security as the court orders for the performance of such decree or order as may ultimately be binding on him has been given by the applicant.”

4. According to the applicant the main reason why they are seeking stay pending appeal is because should they be charged in court for the criminal offence they stand to loose their job and other attendant benefits. Whereas this may be true or not, the judgment of 21. 9.15 did not direct the respondent to arrest and charge the applicants.  That is the prerogative of the respondent. In any event there are other mechanism which the parties can be compensated presuming that they successfully go through the criminal trial.

5. Further should they be arrested the trail court has the mechanism within the law to process fair trial to the applicants.  Both applicants as well as the victims in the alleged criminal act have rights squarely safeguarded by the constitution.

6. I think I have said much to show that I do not find merit in the application. The same is hereby dismissed.

Dated, signed and delivered this 28TH day of OCTOBER 2015.

H. K. CHEMITEI

J U D G E