1. Before this Court is the Appellant/Applicant's Notice of Motion dated 6th March 2026. It is brought under Articles 159(2)(d), 165(6) and (7) of the Constitution, section 362 of the Criminal Procedure Code, and other enabling provisions of the law. The Applicant seeks an order staying further proceedings in Nairobi Chief Magistrate's Anti-Corruption Court Criminal Case No. E031 of 2025, pending the hearing and determination of his appeal against the ruling delivered on 26th February 2026. The Applicant also seeks an interim order restraining the continuation of the defence hearing pending the hearing of his appeal.
2. The application is supported by the Applicant's affidavit, sworn on 6th March 2026, the documents annexed to it, a supplementary record, and his written submissions dated 17th July 2026. The Respondent opposed the application by grounds of opposition and written submissions. The parties adopted their respective submissions on 27th July 2026.
BACKGROUND
3. The Applicant is the accused in Nairobi Chief Magistrate's Anti-Corruption Court Criminal Case No. E031 of 2025. He faces five counts arising from an allegation that he used false Kenya Certificate of Secondary Education documents to obtain and retain employment with Kenya Electricity Generating Company PLC.
4. In the first count, he is charged with fraudulent acquisition of public property contrary to section 45(1)(a) read with section 48 of the Anti-Corruption and Economic Crimes Act. The prosecution alleges that between 1st August 2003 and 30th September 2018, while employed as a Craftsman Grade III, he fraudulently obtained salary and benefits totalling Kshs.14,946,118.82 by presenting a false KCSE certificate and result slip.
5. The remaining counts comprise two charges of forgery contrary to section 345 read with section 349 of the Penal Code, and two charges of uttering a false document contrary to section 353 of the Penal Code. The disputed documents are a KCSE certificate bearing number 822080 and a KCSE examination result slip under index number 703303/031.
6. The Applicant pleaded not guilty. The prosecution called eleven witnesses. Its case included evidence from officers associated with the employer, the Kenya National Examinations Council and the investigation. The prosecution closed its case on 8th January 2026. The Applicant submitted that there was no case to answer and challenged, among other matters, the validity of the charges, the absence of the person who allegedly made the initial complaint, the authenticity of the documents and the sufficiency of the prosecution evidence.
7. On 26th February 2026, the trial court delivered a brief ruling. It stated that it had considered the prosecution's evidence, the exhibits, the written submissions and the authorities relied upon by the parties. It found that the prosecution had established a prima facie case and placed the Applicant on his defence.
8. The Applicant filed the present appeal and application on 6th March 2026. The application was initially dismissed for non-attendance on 14th May 2026. After further applications and appearances, this Court reinstated the application on 14th July 2026 so that it could be heard on its merits. The Court expressly stated that it had not stayed the proceedings before the trial court.
THE APPLICANT'S CASE
9. The Applicant contends that the criminal charges are fabricated and are being used to harass and pressure him in relation to Employment and Labour Relations Court Case No. E097 of 2025, which he filed against his former employer. He states that the tax-evasion allegation does not disclose an offence against him, that no identifiable complainant was called, and that the prosecution witnesses failed to establish any of the charges.
10. He further contends that the ruling on a case to answer was not reasoned. In his view, section 210 of the Criminal Procedure Code required the trial court to analyse the evidence and explain why each count disclosed a prima facie case before calling upon him to defend himself.
11. The Applicant also alleges that the official record of the trial was compromised. He states that the audio recording was switched off during the cross-examination of two investigators on 8th January 2026, and that the typed proceedings later supplied to him contained additions not spoken in court. He further states that he raised written objections before the trial court, but they were dismissed as mere allegations.
12. On that basis, the Applicant argues that requiring him to proceed with his defence on a disputed record would violate Article 50 of the Constitution. He submits that his appeal is arguable, that continuing the trial would render the appeal nugatory, and that the Respondent would suffer no prejudice if the trial were temporarily stayed.
THE RESPONDENT'S CASE
13. The Respondent submitted that a stay of criminal proceedings is an exceptional remedy. It argued that the Applicant has not demonstrated an arguable appeal, a plain violation of the law, or any prejudice that cannot be corrected after the trial.
14. The Respondent states that the prosecution adduced both oral and documentary evidence before the trial court regarding the certificates presented to the employer, the verification conducted by the Kenya National Examinations Council, and the salary and benefits paid to the Applicant. It submits that, at the close of the prosecution case, the evidence was sufficient to call upon the Applicant to respond.
15. The Respondent further submits that the allegations concerning the charge sheet, disclosure, the identity of the complainant, the weight of the witnesses' testimony and the accuracy of the record are disputed matters that require examination at trial. They do not establish a plain and obvious illegality capable of stopping the proceedings at this stage.
16. Finally, the Respondent argues that the Applicant's right to a fair trial includes the right to have the criminal case concluded without unreasonable delay. If he is acquitted, the matter ends. If he is convicted, he may challenge the conviction and any interlocutory complaint on appeal. The trial should therefore proceed to the defence case and to judgment.
ANALYSIS AND DETERMINATION
17. I have considered the application, the supporting affidavit, the Grounds of Opposition, the parties' written and oral submissions, the ruling delivered by the trial court on 26 th February 2026 and the law. The issues for determination are as follows:
(a) whether the Court should stay the criminal trial following a ruling that there is a case to answer;
(b) (b) whether the Applicant has demonstrated exceptional circumstances that warrant a stay; and
(c) what orders should issue.
Whether the criminal proceedings should be stayed on a Ruling of case to answer
18. The High Court has supervisory jurisdiction over subordinate courts under Articles 165(6) and (7) of the Constitution. That jurisdiction enables the Court to call for the record and issue orders necessary to ensure the fair administration of justice. However, it is not an invitation to interrupt every criminal trial whenever a party is dissatisfied with an interlocutory ruling.
19. Section 210 of the Criminal Procedure Code governs the decision at the close of the prosecution case. It provides, in material part:
“If at the close of the evidence in support of the charge ... it appears to the court that a case is made out against the accused person sufficiently to require him to make a defence, the court shall proceed to hear his defence.”
20. A ruling that an accused has a case to answer is not a conviction. It is a finding that the prosecution's evidence meets the threshold to require a response. The prosecution still bears the burden of proving every element of the offence beyond reasonable doubt at the end of the trial. The accused retains the right to give sworn evidence, make an unsworn statement, remain silent where the law permits, call witnesses and challenge the prosecution case.
21. In Ramanlal Trambaklal Bhatt v Republic [1957] EA 332, the Court of Appeal explained that the inquiry at that stage is whether there is evidence upon which a reasonable tribunal might convict if no explanation is offered. The court stated:
“The question of whether there is a case to answer depends only on whether there is some evidence...”
22. The Applicant's complaint is that the ruling was brief. The ruling nevertheless records that the trial court considered the evidence, exhibits, submissions and authorities before finding a prima facie case. At the case-to-answer stage, a trial court must show that it has directed itself to the evidence and the applicable threshold. It is not ordinarily required to make final findings on credibility, guilt or the weight of each contested document, as doing so may prejudice the defence, which has yet to be heard.
23. The Supreme Court considered interlocutory criminal appeals in Waswa v Republic (Petition 23 of 2019) [2020] KESC 23 (KLR). It held that the ordinary course is for such complaints to await the trial's final determination. The Court stated:
“...should be deferred, and await the final determination by the trial court.”
24. The Supreme Court recognised that exceptional circumstances may justify an interlocutory appeal, including a decision on admissibility that would eliminate or substantially weaken the prosecution's case, a decision of sufficient importance to warrant immediate determination, or a decision concerning recusal. They exist to prevent a clear injustice, not to convert the criminal trial into a series of appeals after each adverse ruling.
25. The same decision emphasised the constitutional requirement for an expeditious trial. Article 50(2)(e) guarantees an accused person the right:
“to have the trial begin and conclude without unreasonable delay;”
Whether the threshold for stay has been met
26. The power to stay criminal proceedings exists but is exercised sparingly. In Chabeda v Director of Public Prosecutions (Criminal Application E051 of 2025) [2025] KECA 1827 (KLR), the Court of Appeal restated that criminal proceedings may be stayed where prosecution is actuated by malice, constitutes an abuse of process, is instituted for an improper motive, or is undertaken in derogation of constitutional rights. The Court cautioned:
“The jurisdiction is sparingly used and only where the justice of the matter so demands.”
27. An applicant must therefore demonstrate more than dissatisfaction with the trial court's assessment of the prosecution's evidence. He must establish an arguable challenge and show that the appeal will be rendered nugatory unless the proceedings are halted. Where the alleged violation is relied upon as the basis for the stay, it should be sufficiently plain to justify interrupting the trial.
28. In Michael Sistu Mwaura Kamau v Ethics and Anti-Corruption Commission & 3 others [2015] KECA 331 (KLR), the Court of Appeal stated:
“Proceedings before a court of law should not be stopped on the basis of speculation or apprehension.”
29. The Applicant's allegations concerning the alteration of the typed proceedings and the interruption of the audio record are serious. If established, deliberate alteration of a court record would undermine the integrity of the trial. However, the material before this Court consists principally of the Applicant's assertions and his comparison of his recollection with the typed proceedings. No forensic report, verified audio extract, affidavit from the transcriber or court officer, or settled schedule identifying the exact words allegedly inserted has been placed before the Court.
30. The trial court was invited to consider the objection and dismissed it as unproven. Whether the record accurately reflects the testimony, whether a recording failed, and whether any omission caused prejudice are disputed factual matters. These matters cannot be conclusively determined in this application without receiving and testing evidence. On the present material, they do not disclose the plain and obvious illegality contemplated in Michael Sistu Mwaura Kamau.
31. The allegation that the prosecution is intended to exert pressure on the Applicant in the employment dispute is similarly unsupported by material showing that the Director of Public Prosecutions acted for an ulterior purpose. The existence of parallel employment proceedings does not establish that criminal charges concerning alleged false academic documents constitute an abuse of process. Criminal and civil proceedings may arise from the same factual background and serve different legal purposes.
32. The complaint that an anonymous or originating complainant was not called concerns the sufficiency of the prosecution's evidence. Criminal proceedings are instituted in the name of the Republic. The prosecution is not required to call every person mentioned in the investigation.
33. On the alleged defects in the charge sheet and the contention that the prosecution evidence does not prove the offences, those questions lie at the heart of the trial. Determining them now would require this Court to undertake a premature evaluation of witness credibility, documentary authenticity and the elements of the five counts. That is the function of the trial court after hearing both sides.
34. I also do not find that continuing the trial will render the appeal nugatory. The Applicant has been placed on his defence, not convicted. He has the opportunity to respond to the prosecution's case and to adduce his own evidence before the trial court. If the trial court acquits him, the apprehended prejudice will not arise. If he is convicted, Article 50(2)(q) guarantees the right:
“if convicted, to appeal to, or apply for review by, a higher court as prescribed by law.”
35. The Court must also guard against the fragmentation of criminal proceedings. Allowing an accused person to suspend a trial merely because he disagrees with a ruling under section 210 would make the defence stage dependent on an interlocutory appeal in nearly every contested criminal case. That would be inconsistent with the guidance in Waswa (supra) and with the constitutional obligation to conclude criminal trials without unreasonable delay.
36. Having considered the application, I find that the Applicant has not demonstrated exceptional circumstances warranting a stay. He has not established a plain violation of the law, an abuse of process, or prejudice that cannot be addressed by the trial court or corrected on appeal after final judgment.
37. The Applicant has already been placed on his defence. The proper course is for the defence hearing to proceed, for the trial court to consider the entire case, and for judgment to be delivered. If the Applicant remains dissatisfied after judgment, he will be at liberty to pursue the remedies provided by law.
38. Accordingly , I make the following orders:
(a) The Notice of Motion dated 6 th March 2026 is dismissed.
(b) There shall be no stay of proceedings in Nairobi Chief Magistrate's Anti-Corruption Court Criminal Case No. E031 of 2025.
(c) The trial court shall proceed with the defence hearing and determine the criminal case expeditiously in accordance with the law.
(d) For the avoidance of doubt, this ruling does not determine the merits of the pending criminal case or make final findings on the grounds raised in the Applicant's appeal.
(e) There shall be no order as to costs.
Dated, signed and delivered virtually on this 30 th Day of July 2026.
R.E.OUGO
JUDGE
In the presence of:
David Mogire Nyabuti/ Applicant
Miss Kemboi -For the 1 st & 2 nd Respondent
Adan/ Minah C/A
acec appeal case no. e001 of 2026-ruling 2
2. The application is supported by the Applicant's affidavit, sworn on 6th March 2026, the documents annexed to it, a supplementary record, and his written submissions dated 17th July 2026. The Respondent opposed the application by grounds of opposition and written submissions. The parties adopted their respective submissions on 27th July 2026.
BACKGROUND
3. The Applicant is the accused in Nairobi Chief Magistrate's Anti-Corruption Court Criminal Case No. E031 of 2025. He faces five counts arising from an allegation that he used false Kenya Certificate of Secondary Education documents to obtain and retain employment with Kenya Electricity Generating Company PLC.
4. In the first count, he is charged with fraudulent acquisition of public property contrary to section 45(1)(a) read with section 48 of the Anti-Corruption and Economic Crimes Act. The prosecution alleges that between 1st August 2003 and 30th September 2018, while employed as a Craftsman Grade III, he fraudulently obtained salary and benefits totalling Kshs.14,946,118.82 by presenting a false KCSE certificate and result slip.
5. The remaining counts comprise two charges of forgery contrary to section 345 read with section 349 of the Penal Code, and two charges of uttering a false document contrary to section 353 of the Penal Code. The disputed documents are a KCSE certificate bearing number 822080 and a KCSE examination result slip under index number 703303/031.
6. The Applicant pleaded not guilty. The prosecution called eleven witnesses. Its case included evidence from officers associated with the employer, the Kenya National Examinations Council and the investigation. The prosecution closed its case on 8th January 2026. The Applicant submitted that there was no case to answer and challenged, among other matters, the validity of the charges, the absence of the person who allegedly made the initial complaint, the authenticity of the documents and the sufficiency of the prosecution evidence.
7. On 26th February 2026, the trial court delivered a brief ruling. It stated that it had considered the prosecution's evidence, the exhibits, the written submissions and the authorities relied upon by the parties. It found that the prosecution had established a prima facie case and placed the Applicant on his defence.
8. The Applicant filed the present appeal and application on 6th March 2026. The application was initially dismissed for non-attendance on 14th May 2026. After further applications and appearances, this Court reinstated the application on 14th July 2026 so that it could be heard on its merits. The Court expressly stated that it had not stayed the proceedings before the trial court.
THE APPLICANT'S CASE
9. The Applicant contends that the criminal charges are fabricated and are being used to harass and pressure him in relation to Employment and Labour Relations Court Case No. E097 of 2025, which he filed against his former employer. He states that the tax-evasion allegation does not disclose an offence against him, that no identifiable complainant was called, and that the prosecution witnesses failed to establish any of the charges.
10. He further contends that the ruling on a case to answer was not reasoned. In his view, section 210 of the Criminal Procedure Code required the trial court to analyse the evidence and explain why each count disclosed a prima facie case before calling upon him to defend himself.
11. The Applicant also alleges that the official record of the trial was compromised. He states that the audio recording was switched off during the cross-examination of two investigators on 8th January 2026, and that the typed proceedings later supplied to him contained additions not spoken in court. He further states that he raised written objections before the trial court, but they were dismissed as mere allegations.
12. On that basis, the Applicant argues that requiring him to proceed with his defence on a disputed record would violate Article 50 of the Constitution. He submits that his appeal is arguable, that continuing the trial would render the appeal nugatory, and that the Respondent would suffer no prejudice if the trial were temporarily stayed.
THE RESPONDENT'S CASE
13. The Respondent submitted that a stay of criminal proceedings is an exceptional remedy. It argued that the Applicant has not demonstrated an arguable appeal, a plain violation of the law, or any prejudice that cannot be corrected after the trial.
14. The Respondent states that the prosecution adduced both oral and documentary evidence before the trial court regarding the certificates presented to the employer, the verification conducted by the Kenya National Examinations Council, and the salary and benefits paid to the Applicant. It submits that, at the close of the prosecution case, the evidence was sufficient to call upon the Applicant to respond.
15. The Respondent further submits that the allegations concerning the charge sheet, disclosure, the identity of the complainant, the weight of the witnesses' testimony and the accuracy of the record are disputed matters that require examination at trial. They do not establish a plain and obvious illegality capable of stopping the proceedings at this stage.
16. Finally, the Respondent argues that the Applicant's right to a fair trial includes the right to have the criminal case concluded without unreasonable delay. If he is acquitted, the matter ends. If he is convicted, he may challenge the conviction and any interlocutory complaint on appeal. The trial should therefore proceed to the defence case and to judgment.
ANALYSIS AND DETERMINATION
17. I have considered the application, the supporting affidavit, the Grounds of Opposition, the parties' written and oral submissions, the ruling delivered by the trial court on 26 th February 2026 and the law. The issues for determination are as follows:
(a) whether the Court should stay the criminal trial following a ruling that there is a case to answer;
(b) (b) whether the Applicant has demonstrated exceptional circumstances that warrant a stay; and
(c) what orders should issue.
Whether the criminal proceedings should be stayed on a Ruling of case to answer
18. The High Court has supervisory jurisdiction over subordinate courts under Articles 165(6) and (7) of the Constitution. That jurisdiction enables the Court to call for the record and issue orders necessary to ensure the fair administration of justice. However, it is not an invitation to interrupt every criminal trial whenever a party is dissatisfied with an interlocutory ruling.
19. Section 210 of the Criminal Procedure Code governs the decision at the close of the prosecution case. It provides, in material part:
“If at the close of the evidence in support of the charge ... it appears to the court that a case is made out against the accused person sufficiently to require him to make a defence, the court shall proceed to hear his defence.”
20. A ruling that an accused has a case to answer is not a conviction. It is a finding that the prosecution's evidence meets the threshold to require a response. The prosecution still bears the burden of proving every element of the offence beyond reasonable doubt at the end of the trial. The accused retains the right to give sworn evidence, make an unsworn statement, remain silent where the law permits, call witnesses and challenge the prosecution case.
21. In Ramanlal Trambaklal Bhatt v Republic [1957] EA 332, the Court of Appeal explained that the inquiry at that stage is whether there is evidence upon which a reasonable tribunal might convict if no explanation is offered. The court stated:
“The question of whether there is a case to answer depends only on whether there is some evidence...”
22. The Applicant's complaint is that the ruling was brief. The ruling nevertheless records that the trial court considered the evidence, exhibits, submissions and authorities before finding a prima facie case. At the case-to-answer stage, a trial court must show that it has directed itself to the evidence and the applicable threshold. It is not ordinarily required to make final findings on credibility, guilt or the weight of each contested document, as doing so may prejudice the defence, which has yet to be heard.
23. The Supreme Court considered interlocutory criminal appeals in Waswa v Republic (Petition 23 of 2019) [2020] KESC 23 (KLR). It held that the ordinary course is for such complaints to await the trial's final determination. The Court stated:
“...should be deferred, and await the final determination by the trial court.”
24. The Supreme Court recognised that exceptional circumstances may justify an interlocutory appeal, including a decision on admissibility that would eliminate or substantially weaken the prosecution's case, a decision of sufficient importance to warrant immediate determination, or a decision concerning recusal. They exist to prevent a clear injustice, not to convert the criminal trial into a series of appeals after each adverse ruling.
25. The same decision emphasised the constitutional requirement for an expeditious trial. Article 50(2)(e) guarantees an accused person the right:
“to have the trial begin and conclude without unreasonable delay;”
Whether the threshold for stay has been met
26. The power to stay criminal proceedings exists but is exercised sparingly. In Chabeda v Director of Public Prosecutions (Criminal Application E051 of 2025) [2025] KECA 1827 (KLR), the Court of Appeal restated that criminal proceedings may be stayed where prosecution is actuated by malice, constitutes an abuse of process, is instituted for an improper motive, or is undertaken in derogation of constitutional rights. The Court cautioned:
“The jurisdiction is sparingly used and only where the justice of the matter so demands.”
27. An applicant must therefore demonstrate more than dissatisfaction with the trial court's assessment of the prosecution's evidence. He must establish an arguable challenge and show that the appeal will be rendered nugatory unless the proceedings are halted. Where the alleged violation is relied upon as the basis for the stay, it should be sufficiently plain to justify interrupting the trial.
28. In Michael Sistu Mwaura Kamau v Ethics and Anti-Corruption Commission & 3 others [2015] KECA 331 (KLR), the Court of Appeal stated:
“Proceedings before a court of law should not be stopped on the basis of speculation or apprehension.”
29. The Applicant's allegations concerning the alteration of the typed proceedings and the interruption of the audio record are serious. If established, deliberate alteration of a court record would undermine the integrity of the trial. However, the material before this Court consists principally of the Applicant's assertions and his comparison of his recollection with the typed proceedings. No forensic report, verified audio extract, affidavit from the transcriber or court officer, or settled schedule identifying the exact words allegedly inserted has been placed before the Court.
30. The trial court was invited to consider the objection and dismissed it as unproven. Whether the record accurately reflects the testimony, whether a recording failed, and whether any omission caused prejudice are disputed factual matters. These matters cannot be conclusively determined in this application without receiving and testing evidence. On the present material, they do not disclose the plain and obvious illegality contemplated in Michael Sistu Mwaura Kamau.
31. The allegation that the prosecution is intended to exert pressure on the Applicant in the employment dispute is similarly unsupported by material showing that the Director of Public Prosecutions acted for an ulterior purpose. The existence of parallel employment proceedings does not establish that criminal charges concerning alleged false academic documents constitute an abuse of process. Criminal and civil proceedings may arise from the same factual background and serve different legal purposes.
32. The complaint that an anonymous or originating complainant was not called concerns the sufficiency of the prosecution's evidence. Criminal proceedings are instituted in the name of the Republic. The prosecution is not required to call every person mentioned in the investigation.
33. On the alleged defects in the charge sheet and the contention that the prosecution evidence does not prove the offences, those questions lie at the heart of the trial. Determining them now would require this Court to undertake a premature evaluation of witness credibility, documentary authenticity and the elements of the five counts. That is the function of the trial court after hearing both sides.
34. I also do not find that continuing the trial will render the appeal nugatory. The Applicant has been placed on his defence, not convicted. He has the opportunity to respond to the prosecution's case and to adduce his own evidence before the trial court. If the trial court acquits him, the apprehended prejudice will not arise. If he is convicted, Article 50(2)(q) guarantees the right:
“if convicted, to appeal to, or apply for review by, a higher court as prescribed by law.”
35. The Court must also guard against the fragmentation of criminal proceedings. Allowing an accused person to suspend a trial merely because he disagrees with a ruling under section 210 would make the defence stage dependent on an interlocutory appeal in nearly every contested criminal case. That would be inconsistent with the guidance in Waswa (supra) and with the constitutional obligation to conclude criminal trials without unreasonable delay.
36. Having considered the application, I find that the Applicant has not demonstrated exceptional circumstances warranting a stay. He has not established a plain violation of the law, an abuse of process, or prejudice that cannot be addressed by the trial court or corrected on appeal after final judgment.
37. The Applicant has already been placed on his defence. The proper course is for the defence hearing to proceed, for the trial court to consider the entire case, and for judgment to be delivered. If the Applicant remains dissatisfied after judgment, he will be at liberty to pursue the remedies provided by law.
38. Accordingly , I make the following orders:
(a) The Notice of Motion dated 6 th March 2026 is dismissed.
(b) There shall be no stay of proceedings in Nairobi Chief Magistrate's Anti-Corruption Court Criminal Case No. E031 of 2025.
(c) The trial court shall proceed with the defence hearing and determine the criminal case expeditiously in accordance with the law.
(d) For the avoidance of doubt, this ruling does not determine the merits of the pending criminal case or make final findings on the grounds raised in the Applicant's appeal.
(e) There shall be no order as to costs.
Dated, signed and delivered virtually on this 30 th Day of July 2026.
R.E.OUGO
JUDGE
In the presence of:
David Mogire Nyabuti/ Applicant
Miss Kemboi -For the 1 st & 2 nd Respondent
Adan/ Minah C/A
acec appeal case no. e001 of 2026-ruling 2