IN THE COURT OF APPEAL AT NAIROBI (CORAM: NAMBUYE, MUSINGA & GATEMBU JJ.A.) CIVIL APPEAL (APPLICATION) NO. 242 OF 2020 BETWEEN DR. EVANS ODHIAMBO KIDERO...............................................1ST APPLICANT DR. SUSAN AKELLO MBOYA....................................................2ND APPLICANT DR. EVANS ODHIAMBO KIDERO (Suing on behalf of the Estate of the late ABIGAEL ATIENO KIDERO)........................................................3RD APPLICANT DR. EVANS ODHIAMBO KIDERO (Suing on behalf of the Estate of the late PHILIP AYOT KIDERO)................................................................4TH APPLICANT GEM INVESTMENTS......................................................................5TH APPLICANT GEM APARTMENTS.......................................................................6TH APPLICANT GEM SUITES..................................................................................7TH APPLICANT ORRO LIMITED............................................................................8TH APPLICANT ARGENTI LIMITED........................................................................9TH APPLICANT PAUL AOL...................................................................................10TH APPLICANT VERSUS THE CHIEF MAGISTRATE OF MILIMANI LAW COURTS.......................................................1ST RESPONDENT ETHICS AND ANTI-CORRUPTION COMMISSION............2ND RESPONDENT DIRECTOR OF PUBLIC PROSECUTIONS...........................3RD RESPONDENT DIRECTOR OF CRIMINAL INVESTIGATIONS.....................4TH RESPONDENT HON. ATTORNEY GENERAL...................................................5TH RESPONDENT (Being an application for injunction pending the hearing and determination of the Appeal from the Judgment and Decree of the High Court of Kenya (Hon. Mumbi Ngugi, J.) dated 4th June, 2020 in Nairobi Petition No. 25 of 2018)
page 1 of 2
*********************** RULING OF THE COURT 1. UPON perusing the Notice of Motion dated 19th June 2020 by the applicants seeking an order to stay the judgment of Hon. Lady Justice Mumbi Ngugi dated 4th June, 2020 pending hearing and determination of the appeal; an order of temporary injunction restraining the 2nd respondent through any of its agents, officers or investigators from any further execution of the search warrant issued against the 1st Applicant dated 19th September, 2018 pending the hearing and determination of Civil Appeal No. 242 of 2020 Dr. Evans Kidero & Others vs. EACC & Others already filed in this Court; an order of injunction restraining the 2nd respondent through any of its agents, officers or investigators from purporting to search, seize and continue to seize the 2nd - 10th Applicants’ properties pending the hearing and determination of Civil Appeal No. 242 of 2020 Dr. Evans Kidero & 7 Others vs. EACC & Others already filed in this Court.; and an order that costs of the application do abide the outcome of this Appeal; and 2. UPON reading the grounds in the body of the application and supporting affidavit of Dr. Evans Odhiambo Kidero together with annexures thereto; and 3. UPON reading the 2nd respondent’s replying affidavit sworn by Paul Mugwe together with annexures thereto; and 4. UPON appraising the applicant’s and 2nd respondent’s written submissions dated 25th June, 2020 and 27th June, 2020 respectively in support of their rival positions; and 5. HAVING considered the Memorandum of Appeal already filed in light of the principles that guide this Court in determining applications under Rule 5(2)(b) of this Court’s Rules as summarized in Stanley Kangethe vs. Tony Ketter & Others [2013]eKLR, and which we fully adopt, we are satisfied that the applicants have satisfied the first of the twin principles that guide the court in the exercise of its mandate under the said rule, namely demonstration of existence of an arguable appeal irrespective of its ultimate success and /or otherwise; and 6. HAVING applied the same test with regard to the need to satisfy the second prerequisite, namely demonstration that failure to grant the order sought will render the appeal filed nugatory, we do not think that the second prerequisite has been satisfied. The applicant has failed to controvert the 2nd respondent’s averments in their replying affidavit that pending completion of investigations, filing, prosecution, and conclusion of the criminal case(s) against the applicants and the filing of the asset recovery suit, which actions are yet to commence, are unlikely to be concluded before the appeal which is already filed is heard and determined; and 7. HAVING appreciated that in order to succeed under rule 5(2) (b) of the Court’s Rules both prerequisites must be satisfied; and 8. HAVING reached the above conclusion, we make orders as follows: (i) The Notice of Motion dated 19th June, 2020 is declined. (ii) Costs of the application to abide the outcome of the appeal. Dated and delivered at Nairobi this 9th day of October, 2020. R. N. NAMBUYE ..................................... JUDGE OF APPEAL D. K. MUSINGA ...................................... JUDGE OF APPEAL S. GATEMBU KAIRU FCIArb ................................... JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR
page 2 of 2