The Speaker, County Assembly of Laikipia & 1 other v Team Laikipia Community Based Organization . 1st Respondent Francis Chubi Mwangi & 1 other

Administrative Services (hereinafter referred to as DCAS), and as the Acting Clerk of the Laikipia County Assembly; the interested party had not been enjoined in the proceedings in breach of Article 47 and 50 of the Constitution and against the rules of natural justice; in its judgment, the court ignored and/or disregarded the powers of the 2nd applicant as provided for under Section 12(7)(b) of the County Government Act No. 17 of 2012 and erroneously relied on Section 24(4) of the County Assembly Services Act, 2017; that indeed there was compliance with both the County Government Act and County Assembly Services Act in creating the Office of the DCAS, but the evidence to that effect was not availed to the trial judge despite the applicants presenting the same to their advocates; the orders granted in the impugned judgment had not been sought in the petition and the ensuing judgment therefore is a nullity in law and should be stayed; the interested party is a young person with a young family, and the sudden loss of his livelihood will occasion him irreparable loss, pecuniary embarrassment and grave distress to his young family when they are all innocent of any offence or error of omission or commission on his part. 3. The 1st applicant further deposed that the judgment will adversely impact on all other offices and personnel that emerged as a consequence of the creation of the Office of the DCAS, which has effectively been running for the last 1 year and its continued operations in the interim and pending the intended appeal herein will not occasion the respondents any loss nor prejudice; this would be in the larger interest of justice and the public of Laikipia County; further he faulted the jurisdiction of the ELRC in determining the matter; and it is in the larger interest of justice that the orders sought are granted and as well, leave be granted to file additional evidence. 4. The 1st respondent, Francis Chubi Mwangi, in opposition filed a replying affidavit sworn on 14th March 2025, on his behalf and on behalf of the 2nd respondent in which he deposed that the impugned judgment did not abolish the Office of the DCAS, instead, it declared the 2nd applicant's decision to create the office as unconstitutional because it contravened guiding principles of the Constitution and relevant laws; the judgment vitiated the office, which required the interested party to vacate it; the petition was filed on 28th December 2023, to challenge the creation of the office and the recruitment process, which was advertised on 16th January 2024; upon being served the applicants rushed the recruitment process, disregarding the 21-day advertisement period, and appointing the interested party on 16th January 2024, to frustrate the petition; by the time the petition was filed, the interested party had not yet been appointed to the impugned office; the appointment was accelerated to subvert the petition; further the core issue of the petition was the illegal establishment of the office, not the person who was appointed; the interested party had the right to join in the petition, but this right was never exercised by them, and it is now late in the day to claim that they were denied the right to be heard; the 2nd applicant's mandate to establish offices must be guided by Section 24(4) of the County Assembly Services Act, 2017; a reputable human resource firm should have been hired to advise on the new office's creation, the availability of funds to avoid wastage of county resources; the 2nd applicant cannot haphazardly create offices, misusing crucial county resources; no evidence to show that the procurement process for the HR firm followed proper procedures, such as a tender advertisement or minutes of the procurement committee; there are no records of staff being interviewed or email communication between the firm and the assembly, and it is unclear who approved the report for the manual. 5. On the additional evidence, counsel averred that the applicants had the responsibility to provide all relevant information to their advocates; the information now designated as "additional evidence" was always in the applicants' possession; further adducing of this "additional evidence" cannot be a basis for a stay of execution or an injunction. https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2135/eng@2025-11-28 2

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6. Learned counsel for the applicants filed submissions, a case digest and a list of authorities all dated 17th March 2025. In his submissions counsel highlighted the issues for determination as: whether the trial court had jurisdiction to preside over the primary proceedings herein; whether the trial judge could condemn the interested party without hearing him; whether the actions of the applicants of establishing the Office of the DCAS was lawful; whether the trial court acted judiciously in making orders not prayed for; whether the applicants have laid down a legitimate foundation for grant of leave to lodge additional evidence. 7. We choose not to get into the submissions as outlined above for reasons we shall shortly refer to in this ruling, save the submissions relating to the request to adduce additional evidence, where counsel argued that the additional evidence will serve "the larger interest of justice" contending that they have met the requirements for submitting this new evidence and, in support of his contention, he relied on Hon. Mohammed Abdi Mohammed vs. Ahmed Abdullahi Mohammed & 3 Others (SC Petition No. 7 & 9 (Consolidated) [2018] eKLR. 8. Counsel for the respondents filed submissions dated 20th March 2025 wherein he responded to the issues raised by the applicants’ counsel in his submissions. For reasons herein below, we shall not summarise the submissions, except on the issue of admissibility of additional evidence. Counsel placed reliance on Attorney General vs. Torino Enterprises Limited [2019] eKLR, where the court spoke to the principles underpinning the production of further evidence. Counsel submitted that the attempt to pass blame to the applicants’ former advocates on record is disingenuous, citing the maxim, “equity aids the vigilant, not the indolent”. 9. In an application for stay of execution under rule 5(2)(b) of the Court of Appeal Rules, an applicant is only required to satisfy two principles, which we shall enumerate below. The issues raised by the applicants and addressed by the respondents are not relevant for the application before us. Parties at this stage are not meant to ventilate the merits or otherwise of the appeal. The twin principles are enumerated in many decisions of this Court, namely: i. An applicant must demonstrate that they have an arguable appeal; and ii. That the intended appeal (or appeal if already filed) will be rendered nugatory if the execution of the decree, order or proceedings is not stayed. 10. On the both limbs of this twin principle, this Court held in David Morton Silversein vs. Atsango Chesoni [2002] eKLR that for an order of stay to issue, the applicant must first demonstrate that the appeal or intended appeal is arguable, that is, it is not frivolous and that the appeal or intended appeal, would in the absence of stay, be rendered nugatory. Further, as seen in the case of Yellow Horse Inns Ltd vs. A. A. Kawir Transporters & 4 Others [2014] eKLR, even one arguable ground is sufficient. Among the grounds raised by the applicants are jurisdiction, non-joinder of the interested party, and whether the prayers granted had been sought. These are not frivolous issues. 11. We turn to the second principle, whether the appeal will be rendered nugatory. The court found that the action of the applicants to establish the Office of the DCAS was in contravention of the principles in the Constitution, the County Government Act, and the County Assembly Services Act, thus quashing the decision. Aside from stating that the interested party will suffer pecuniary loss and financial embarrassment, the applicants have not demonstrated how the appeal will be rendered nugatory. Needless to say, damages suffered by the interested party, if any, can be quantified and compensated in the event of a successful appeal. https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2135/eng@2025-11-28 3

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12. 13. In Mahamud vs. Mohamad & 3 Others (Petition 7 & 9 of 2018 (Consolidated)) [2018] KESC 62 (KLR) (28), the Supreme Court set out the principle that should guide appellate courts in Kenya in admitting additional evidence as follows: “ a. The additional evidence must be directly relevant to the matter before the court and be in the interest of justice; b. It must be such that, if given, it would influence or impact upon the result of the verdict, although it need not be decisive; c. It is shown that it could not have been obtained with reasonable diligence for use at the trial, was not within the knowledge of, or could not have been produced at the time of the suit or petition by the party seeking to adduce the additional evidence; d. Where the additional evidence sought to be adduced removes any vagueness or doubt over the case and has a direct bearing on the main issue in the suit; e. The evidence must be credible in the sense that it is capable of belief; f. the additional evidence must not be so voluminous making it difficult or impossible for the other party to respond effectively; g. whether a party would reasonably have been aware of and procured the further evidence is to ensure fairness and due process; h. where the additional evidence discloses a strong prima facie case of willful deception of the Court; i. The Court must be satisfied that the additional evidence is not utilized for the purpose of removing lacunae and filling gaps in evidence. The Court must find the further evidence needful; j. A party who has been unsuccessful at the trial Must not seek to adduce additional evidence to, make a fresh case in appeal, fill up omissions or patch up the weak points in his/her case; k. The court will consider the proportionality and prejudice of allowing the additional evidence. This requires the court to assess the balance between the significance of the additional evidence, on the one hand, and the need for the swift conduct of litigation together with any prejudice that might arise from the additional evidence on the other. Similarly, in Attorney General vs. Torino Enterprises Limited (supra), referred to Dorothy Nelima Wafula vs. Hellen Nekesa Nielsen & Paul Fredrick Nelson [2017] eKLR, this Court stated: “ it was expressed that under Rule 29 (1) (b), additional evidence will be introduced on appeal in the discretion of the Court, “for sufficient reason”. Though what constitutes ‘sufficient reason’ is not explained in the rule, through judicial practice the Court has developed guidelines to be satisfied before it can exercise its discretion in favour of a party seeking to present additional evidence on appeal. Before this Court can permit additional evidence under rule 29, it must be shown, one, that such evidence could not have been obtained by reasonable diligence before and during the hearing; two, the new evidence would probably https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2135/eng@2025-11-28 4

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have had an important influence on the result of the case if it was available at the time of the trial, and finally, that the evidence sought to be adduced is credible, though it need not be incontrovertible. In the instant motion, it is our duty to determine: (a) if there is additional new evidence; (b) if that evidence could have been obtained by the applicant after reasonable diligence before and during hearing; (c) if there is a probability the additional evidence would have an important influence on the result of the case and finally, (d) based on the foregoing, is there sufficient reason to admit the additional evidence?” 14. As submitted by counsel for the respondents, the two appellants each had a different counsel. So that if the 1st applicant's counsel negligently left out essential documents, the 2nd applicant’s counsel ought to have availed them. Admittedly, the documents were always available, and with a little due diligence on the part of the applicants, they would have been produced in evidence. We do not think sufficient reasons have been laid before the court for the production of the ‘new evidence’, and for that reason, this prayer must also fail. 15. In the end, the entire application is dismissed with costs to the respondents. DATED AND DELIVERED AT NYERI THIS 28TH DAY OF NOVEMBER, 2025. S. ole KANTAI ................................. JUDGE OF APPEAL J. LESIIT ................................. JUDGE OF APPEAL ALI-ARONI ................................. 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/2025/2135/eng@2025-11-28 5

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