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Court of AppealPartially AllowedCivil Application No. 173 of 2020· [2020] KECA 352 (KLR)

Ethics And Anti-Corruption Commission v Catherine Nkirote Maingi (sued in her personal capacity and also t/a Venyte Suppliers and Joscate Sales Supplies) & 2 others [2020] KECA 352 (KLR)

Court of Appeal
4 September 2020
1,587 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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The Court of Appeal froze Kshs. 29.2 million in bank accounts because the respondents couldn't prove they could refund the money if the EACC's appeal succeeded.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Koome, Gatembu Kairu and J. Mohammed, JJ.A) on the Ethics and Anti-Corruption Commission's application dated 25 June 2020 under Rule 5(2)(b) of the Court of Appeal Rules, seeking an injunction pending its intended appeal against the judgment of Onyiego, J. delivered on 8 April 2020 in ACEC Civil Suit No. 6 of 2018. The High Court had dismissed the Commission's suit seeking declarations that tenders awarded by the National Youth Service to the respondents were irregular and void, restitution of Kshs. 45,517,241.40 (or alternatively Kshs. 33,700,000), and had lifted preservation orders over Kshs. 29,207,976.28 in the respondents' bank accounts and a parcel of land. The Commission alleged collusive bidding and inflated prices in the NYS procurement. The applicant argued the appeal was arguable on procurement-compliance and collusion grounds, and that the funds would dissipate. The respondents countered that no collusion was proved, the goods were supplied, and they could refund any amount if the appeal succeeded. Applying the twin principles in Stanley Kangethe Kinyanjui vs. Tony Ketter, the court found the intended appeal arguable and held that the respondents had not demonstrated, beyond mere assertion, an ability to refund the funds. It allowed the application in terms of prayer 3, restraining the respondents from withdrawing, transferring, disposing of, wasting or dealing with the specified bank accounts pending the hearing and determination of the intended appeal, with costs to abide the appeal's outcome.

Key legal issues

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01

Arguability of the intended appeal

Holding

The intended appeal was arguable, not frivolous, on grounds including the duty of suppliers and bidders to comply with public procurement law and the question of collusion among bidders.

Reasoning

The applicant proposed to argue that the learned Judge erred in failing to address whether suppliers have a duty to comply with the Public Procurement and Disposal Act and Regulations, whether every participant in a procurement process entailing public expenditure must uphold prudent use of public resources, and the question of collusion among the respondents as bidders. The court found single arguable ground suffices and was persuaded the appeal was not frivolous.

p. 3
02

Whether the intended appeal would be rendered nugatory

Holding

The appeal would be rendered nugatory if the restraining orders were not granted, because the respondents did not demonstrate ability to refund the funds.

Reasoning

The respondents claimed they could refund the money if the appeal succeeded, but produced nothing beyond the bare statement. Given that the preserved funds could be withdrawn and dissipated, and restitution would be uncertain, the court was satisfied that declining the orders could render a successful appeal nugatory.

p. 3

Legal principles established

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  • An applicant under Rule 5(2)(b) of the Court of Appeal Rules must satisfy the twin principles that the intended appeal is arguable and that, unless the orders sought are granted, the appeal if successful would be rendered nugatory.
  • A mere assertion by a respondent that it can refund the decretal amount, without demonstration, does not rebut the nugatory-ness limb.

Court orders

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  1. 1.Pending the hearing and determination of the intended appeal, the respondents, whether by themselves, their agents, servants and/or employees, are restrained by order of injunction from withdrawing funds, transferring, disposing of, wasting or in any other way dealing with the five specified bank accounts totalling Kshs. 29,207,976.28
  2. 2.The costs of the application shall abide by the outcome of the intended appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Public Procurement and Disposal Actnot specified

Cases cited (4)

  • Kiru Tea Factory Company Ltd vs. Kenya Tea Development Agency Holdings & another
    Civil Application No. NAI. 132 of 2017 [2017] eKLR
  • Stanley Kangethe Kinyanjui vs. Tony Ketter & 5 others
    Civil Application No. NAI 31 of 2012 [2013] eKLR
  • Amina Shiraz Yakib vs. David Baburam Jagatram
    [2017] eKLR
  • Nelson Andayi Havi vs. Law Society of Kenya & 3 others
    [2018] eKLR
On appeal from
High Court of Kenya at Nairobi
ACEC Civil Suit No. 6 of 2018
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ethics And Anti-Corruption Commission v Catherine Nkirote Maingi (sued in her personal capacity and also t/a Venyte Suppliers and Joscate Sales Supplies) & 2 others [2020] KECA 352 (KLR)", Case Analysis (2020). Civil Application No. 173 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/352/eng@2020-09-04

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.