Sicpa Securities Sol. Sa v Okiya Omtatah Okoiti & 2 others [2018] KECA 613 (KLR)

The Court accepted the line of authority holding that certiorari orders take effect immediately and are not executable. However, it relied on Njuguna S. Ndungu v EACC and Equity Bank v West Link Mbo to hold that the Court's inherent power to make conservatory orders preserving the status quo is not fettered by the nature of the orders below. Where colossal loss is shown and cannot be recovered, the interest of justice demands preservation of the substratum of the appeal pending its hearing.

The draft memoranda of appeal faulted the Judge for relying on the PPDA 2015 when the tender was awarded in 2013-2015 under the Public Procurement Act, 2005, the PPDA having come into force on 7th January 2016 after the award. A second ground was that the Legal Notices were meant to enable implementation of EGMS, not to impose new taxation. These grounds were sufficient to satisfy the first limb without making definitive findings.

The Court considered the expense and reversibility of what would change hands: SICPA's high-tech equipment could not readily be resold and de-installation costs would be prohibitive; 66 Kenyan staff would be laid off; KRA would suffer revenue deficits; the public would be exposed to counterfeit products. Okiya did not controvert that he could not reimburse the loss. Applying proportionality, refusal of stay would cause hardship out of proportion to any prejudice to Okiya, who alleged none.

Counsel for the applicants urged that the Government would lose close to Kshs 20 billion and that over 1.2 million products had been seized under the EGMS. The Court agreed that public interest, which the Government represents, ought to be considered, and that proportionality requires balancing the competing parties' interests, with the loss to the applicants being colossal and irrecoverable while Okiya would suffer no prejudice.