Otieno (Suing on his own behalf and on behalf of the General Public) v Funds Account Manager, Mathare National Constituency Development Fund & 2 others; Public Procurement Review Board & 12 others (Interested Parties) (Civil Application E207 of 2022) [2023] KECA 399 (KLR)
The bottom line
#Kenya's Court of Appeal refused to halt Mathare CDF tender payments because the projects were already finished, confirming completed contracts leave nothing to stay.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant demonstrated an arguable appeal
- 2.Whether the intended appeal would be rendered nugatory absent stay
- 3.Whether there was any order capable of being stayed
Key legal issues
#Arguable appeal
The applicant did not demonstrate an arguable appeal; the trial court's view that the Public Procurement and Assets Disposal Act dispute-resolution mechanism ought to have been exhausted appears to have merit
The respondents contended the trial court lacked jurisdiction because the Public Procurement and Assets Disposal Act provides dispute-resolution mechanisms. The court found this argument to have merit but deliberately refrained from deeper comment to avoid embarrassing the bench hearing the substantive appeal, concluding the arguability threshold was not met.
Nugatory-principle / order capable of being stayed
The projects were completed and payments made, so there was nothing capable of being stayed and the appeal could not be rendered nugatory
The respondents' uncontradicted position was that tenders were awarded, construction works (including classroom construction) were completed with certificates of completion issued, and tenderers were paid. The court therefore concluded that, the horse having bolted, the twin conditions precedent for a Rule 5(2)(b) application had not been satisfied.
Whether failure to file a Notice of Appeal defeated the application
The court declined to determine the Notice of Appeal issue since the twin principles had already failed
The 3rd respondent argued no Notice of Appeal had been filed. The court noted that its jurisdiction on a 5(2)(b) application arises upon filing of a Notice of Appeal, but found it unnecessary to belabour the point because the twin conditions precedent were not satisfied in any event.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy the twin principles of an arguable appeal and that the appeal will be rendered nugatory absent stay; both are conditions precedent
- This Court's jurisdiction on a Rule 5(2)(b) application arises upon filing of a Notice of Appeal
- Where tender works have been completed and payment made, there is nothing capable of being stayed and stay will be refused
Court orders
#- 1.The motion dated April 8, 2022 is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Constitutional Petition and Notice of Motion dated January 24, 2022
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (application for stay of execution/injunction pending appeal)
Relief refused
#Stay of the ruling of Ongudi, J delivered on March 22, 2022 and prohibition of release of funds in respect of tenders awarded to the interested parties
The twin principles for a Rule 5(2)(b) application were not satisfied: no arguable appeal was demonstrated and the projects had been completed and paid for, leaving nothing capable of being stayed
Costs
The motion is dismissed with costs to the respondents
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The twin principles to be satisfied in an application such as this one are well settled. Firstly, an applicant has to show that he/she has an arguable appeal. Secondly, he/she must demonstrate that the intended appeal will be rendered nugatory absent stay.
In other words, there was nothing to stay as the horse had bolted.
This Court is seized of jurisdiction in a 5(2)(b) application upon filing of a Notice of Appeal.
In view of what we have stated above, the motion herein lacks merit and it is hereby dismissed with costs.
Issues in the judgment
#The trial judge is referred to inconsistently within the judgment as 'Ongudi, J' and 'Ongundi, J.'
The judgment does not state the case number of the motion or the petition, and does not set out a formal list of final orders; the dismissal order appears only in the final paragraph of the reasoning.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Otieno (Suing on his own behalf and on behalf of the General Public) v Funds Account Manager, Mathare National Constituency Development Fund & 2 others; Public Procurement Review Board & 12 others (Interested Parties) (Civil Application E207 of 2022) [2023] KECA 399 (KLR)", Case Analysis (2023). Civil Application No. E092 of 2022 (Motion dated April 8, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/399/eng@2023-03-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.