Machakos County v Mwangangi & Company Advocates (Civil Application E214 of 2024) [2024] KECA 1951 (KLR) (20 December 2024) (Ruling)
Neutral citation:
[2024] KECA 1951 (KLR)
Republic of Kenya
Civil Application E214 of 2024
MSA Makhandia, SG Kairu & LA Achode, JJA
December 20, 2024
Between
Machakos County
Applicant
and
Mwangangi & Company Advocates
Respondent
(Being an Application for stay of execution of the Ruling/Order of the High Court at Machakos (Rayola, J.) dated 13th March 2024 in HCJR Misc App. No. E010 of 2021
Miscellaneous Civil Application E010 of 2021
)
Ruling
1.Before us is the applicant’s motion on notice dated 8th March 2024 brought under rule 5 (2) (b) of this Court’s Rules. The application seeks: an order of stay of execution of the ruling and order of Rayola J. delivered in respect of Machakos High Court JR Misc. Application No. E010 of 2021 (JR) on 13th March 2024 pending the hearing and determination of the intended appeal.
2.By the ruling, the trial court dismissed the applicant’s application dated 19th September 2023 which sought the review and setting aside of warrants of arrest issued against the Chief Executive Committee, Member of Finance and Economic Planning, and the Chief Officer for Finance and Economic Planning of the County Government of Machakos for non-payment of decretal sum in excess of Kshs140,000,000.00, due to the respondent on account of professional services rendered to the applicant.
3.Besides, the trial court went on to issue orders suo moto to extend the warrants of arrest earlier issued against the said officers and also went on to issue new orders directed at the Machakos County Police Commander and the Machakos Police Station in Charge (OCS) to effect the said arrest warrants within 30 days. The court further ordered that in the event the said County Police Commander and the OCS do not effect the said warrants as directed, the summons will be issued to the said officers to personally attend court to show cause why they should not be held in contempt of court.
4.The application is supported by grounds on its face and the supporting affidavit of Julius Kasanga dated 8th May 2024. That affidavit merely reiterated and expounded on the grounds in support of the motion that we have already alluded to above. There is therefore no need to rehash. Suffice to add that the applicant complains that the trial court in effect deviated from the issues that were before it and went on to issue such far-reaching orders thereby descending into the arena of conflict.
5.That pursuant to the said ruling and orders, the respondent had by letter dated 17th April 2024 written to the Deputy Registrar of the court seeking for the re-issuance of the warrants of arrest against the officers and as such, there is real danger that the officers will be arrested at any time now. That in the circumstances, it is in the interest of justice to stay the execution of the said orders pending the filing, hearing, and determination of the intended appeal.
6.The applicant also posits that the intended appeal will be rendered nugatory if the orders are executed before the hearing and determination of the intended appeal. Moreover, the matter involves a colossal amount of public money, that requires protection. That it has an arguable appeal as it seeks to challenge the decretal sum awarded and further seek a determination on whether the County Government is by law obliged and/or mandated to pay sums in a matter that is under active investigations by the Ethics and Anti-Corruption Commission (“EACC”) and especially in circumstances where all documents in relation to the said payment are in the custody of the EACC. Equally important, is that if the orders sought are not granted, then the applicant’s officers will be arrested and their liberty taken away on account of a debt owing from the applicant which is not a personal debt, and which debt is in any event, under active investigation by the EACC.
7.The application was opposed by the respondent through a replying affidavit dated 22nd May 2024. It is the respondent’s case that the application wrongfully seeks to stay the execution of warrants of arrest issued by the High Court in the execution of a regular decree for the advocate's taxed costs of Kshs. 128,825,847.00. That the applicant had blatantly failed to satisfy the decree in full save for a deposit of Kshs. 30Million. That the trial court on 13th June 2021 issued mandamus orders against the applicant on the respondent‘s application in the judicial review application. The applicant also disobeyed the mandamus orders prompting the issuance of the said warrants of arrest after notice to show cause proceedings. The decree and mandamus orders are still in force and the retainer has also never been denied. That in any event, the application was bad in law as it was based on an incompetent notice of appeal dated 27th March 2024 which was filed way out of time and without leave of court. That the applicant had not demonstrated that it has an arguable appeal and that the same will be rendered nugatory unless the orders sought are granted. That the applicant filed in the High Court an application dated 19th September 2023 seeking stay of execution of the warrants of arrest on allegations that the matter of the costs to the respondent was being investigated by the EACC but was dismissed.
8.The applicant’s allegations that the superior court failed to protect “public funds” and that it descended into the arena of litigation, are unfounded and are merely intended to wrongly whip the emotions of this Court. Finally, that the applicant has come to court seeking equitable remedy with dirty hands and the application ought to be declined therefor.
9.When the application was called out for hearing on 16th July 2024, Mr. Mutua and Mrs. Mwangangi learned counsel appeared for the applicant and respondent respectively. They all opted to rely on their written submissions wholly.
10.However, before we proceed to consider the merits of the application, it is necessary to consider the peripheral issue raised by the respondent, the question of jurisdiction. It is trite law that for a party to invoke the jurisdiction of this Court under rule 5(2) (b), it must first file a notice of appeal in accordance with rule 77 of this Court’s Rules. This Court has time and again held that a suit filed devoid of jurisdiction is dead on arrival and cannot be remedied. That the Court cannot confer jurisdiction on itself. See Phoenix of EA Assurance Company Limited vs. S M Thiga t/a Newspaper Service [2019] eKLR. A notice of appeal is a primary document to be filed outright whether or not the subject matter under appeal is one that requires leave or not as it is always a jurisdictional prerequisite. See Nicholas Kiptoo Arap Korir Salat vs. Independent Electoral and Boundaries Commission & 6 Others [2013] eKLR. However, we do not wish to say more on the issue, as per its own admission, the respondent had already filed an application to strike out the notice of appeal on the grounds that it was filed out of time and without leave. For now, there is a valid notice of appeal on record until the pending application is heard and determined. We, therefore, have jurisdiction to entertain this application.
11.To succeed in an application made under rule 5(2) (b) of this Court’s Rules, an applicant must satisfy the twin principles namely: that he has an arguable appeal; and secondly, that absence stay, the intended appeal or appeal if successful, will be rendered nugatory. See David Morton Silverstein vs. Atsango Chesoni [2002] eKLR.
12.On arguability, this Court in Transouth Conveyors Limited vs. Kenya Revenue Authority & Another [2007] eKLR, observed that a single point will suffice and that an applicant need not establish a multiplicity of arguable points. Neither is the applicant required to show that the ground will succeed. It only needs to be a ground that raises a serious question of law worthy of consideration by the Court or one in respect of which a reasonable argument can be put forward in support.
13.On the first limb, the applicant has annexed to the application a draft memorandum of appeal raising 13 grounds of appeal among them, that the EACC was investigating previous payments made to the respondent which needed completion before any further payments could be effected, that the issue of retainer was not proved; that the learned Judge failed to consider that the case related to payment of public funds. We are satisfied that the intended appeal is not idle but arguable.
14.On the nugatory aspect, we note that what is sought to be stayed is one of the modes allowed by law for the execution of a court decree. However, Julius Kasanga, the Chief Officer for Finance and Economic Planning of the applicant has deponed in his affidavit that he and the County Executive Committee Member in charge of Finance and Economic Planning are at risk of arrest and incarceration in execution of warrants of arrest unless the applicant settles the colossal amount of Kshs. 140,000,000 for which they would have no personal liability.
15.As the Court stated in Oraro & Rachier Advocates vs. Co-operative Bank of Kenya Limited, Civil Application No. Nai. 358 of 1999, the Court must weigh the claims of both sides. Like in that case, the officers of the applicant in the present case “might find themselves in a very tight situation” unless the Court grants an order of stay of execution pending appeal. We are persuaded that the appeal, if successful, will be rendered nugatory unless an order of stay of execution of the ruling of the High Court delivered on 13th March 2024 is granted.
16.Accordingly, the applicant having satisfied both the limbs, the application dated 8th March 2024 is allowed in terms of prayer 3 subject to the applicant filing and serving the Memorandum and Record of Appeal on the respondent within 30 days from the date of delivery of this ruling failing which the orders granted herein will automatically lapse and stand discharged without further ado. Upon the appeal being filed, the same shall be fixed for hearing on basis of priority during the next term of the Court.
17.Costs of the application shall be in the appeal.
DATED AND DELIVERED AT NAIROBI THIS 20TH DAY OF DECEMBER 2024.ASIKE-MAKHANDIA......................................JUDGE OF APPEALS. GATEMBU KAIRU, FCIArb......................................JUDGE OF APPEALL. ACHODE......................................JUDGE OF APPEALI certify that this is a True copy of the originalSigned DEPUTY REGISTRAR