Raki Micronance Bank Limited v Assets Recovery Agency & 2 others (Civil Appeal (Application) E542 of 2022) [2022] KECA 1173 (KLR) (21 October 2022) (Ruling) Neutral citation: [2022] KECA 1173 (KLR) REPUBLIC OF KENYA IN THE COURT OF APPEAL AT NAIROBI CIVIL APPEAL (APPLICATION) E542 OF 2022 K M'INOTI, KI LAIBUTA & PM GACHOKA, JJA OCTOBER 21, 2022 BETWEEN RAFIKI MICROFINANCE BANK LIMITED ...................................... APPLICANT AND ASSETS RECOVERY AGENCY .................................................... 1ST RESPONDENT RIGATHI GACHAGUA ................................................................ 2ND RESPONDENT ANNE KIMEMIA T/A JENNE ENTERPRISES LIMITED ...... 3RD RESPONDENT (Being an application for stay of execution pending an intended appeal from the Judgment of the High Court of Kenya at Nairobi (E. N. Maina,J.) dated 28th July, 2022 inACEC NO. E020 OF 2020) RULING 1. Before us is the applicant’s notice of motion dated August 17, 2022 made under rule 5(2) (b) of the Court of Appeal Rules seeking, inter alia: stay of execution of the judgment and/or decree of the High Court of Kenya at Nairobi (Esther N Maina, J) dated July 28, 2022 in ACEC No E020 of 2020 pending hearing and determination of the intended appeal; and costs. 2. The application is supported by the annexed adavit of Helen Nyaboke (the applicant’s legal manager) sworn on August 17, 2022, and is made on 18 grounds, which we need not replicate here save to observe that the applicant’s main contention is that “the substantive sum of the forfeiture order is the xed deposit sum in the name of the 2nd respondent and which also is a security that guaranteed several loan facilities taken with the applicant by third parties;” that the 1st respondent has been demanding for the remittance of the decretal sum of the forfeiture order to the agency and even threatened to institute contempt proceedings against the applicant in case the decretal amount was not settled immediately; https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1173/eng@2022-10-21 1
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and that the applicant stands to suer substantive loss and irreparable injury to its reputation and market standing. 3. Except for the learned senior counsel for the applicant, who led his written submissions, list of authorities and case digest dated September 9, 2022 in support of the motion, none of the respondents has led any replying adavit or written submissions. 4. When the applicant’s motion came for hearing on the GoTo Meeting virtual platform, Prof Tom Ojienda, SC (counsel for the applicant), Mr K Kilukumi, SC (counsel for the 2nd respondent) and Mr Wachira (counsel for the 3rd respondent) attended. The 1st respondent was unrepresented despite having been duly served with a hearing notice. 5. Learned counsel for the applicant, the 2nd and 3rd respondents made oral submissions in support of the application. Having considered the applicant’s notice of motion, the adavit in support thereof, the written submissions of learned senior counsel for the applicant, and the oral submissions of learned counsel in attendance, we call to mind the provisions of section 92(6) of the Proceeds of Crime and Anti-Money Laundering Act, 2009, which reads: “ 92.(6) A forfeiture order shall not take eect— (a) before the period allowed for an application under section 89 or an appeal under section 96 has expired; or (b) before such an application or appeal has been disposed of.” 6. In view of the foregoing, we reach the inescapable conclusion that the applicant’s motion is unwarranted, having been made in disregard of section 92(6) of the Act which, in our view, provides statutory safeguards pending appeal. The applicant’s motion amounts to a plea to this court to order obedience to statute law; a plea that this court cannot entertain. Accordingly, the same is hereby dismissed with no orders on costs. DATED AND DELIVERED AT NAIROBI THIS 21ST DAY OF OCTOBER, 2022. K. M’ INOTI ............................................ JUDGE OF APPEAL DR. K. I. LAIBUTA ........................................... JUDGE OF APPEAL M. GACHOKA – CI Arb, FCIARB ........................................... JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1173/eng@2022-10-21 2
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