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)
The bottom line
#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
#Executive summary
#Key legal issues
#Arguability of the intended appeal
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.
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.
Whether the intended appeal would be rendered nugatory
The appeal would be rendered nugatory if the restraining orders were not granted, because the respondents did not demonstrate ability to refund the funds.
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 Given that the preserved funds could be withdrawn and dissipated, and restitution would be uncertain, the court was satisfied that declining the orders could render a successful appeal nugatory.
Legal principles established
#- 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
#- 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.The costs of the application shall abide by the outcome of the intended appeal
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.