Mbaraka & 8 others v Kenya Electricity Transmission Co Ltd & 8 others

2. 3. 1. Spent; 2. Spent; 3. That the Honourable court be pleased to grant an Order for stay of execution of the Court’s Ruling read on 8th April 2025 on the Notice of Motion dated 22nd April 2024 pending hearing and determination of the appeal to be led in the Court of Appeal; 4. That the costs of this application be provided for. The Application is supported by the Adavit of Major (Rtd) Dr. Dhadho Gaddae Godhana and on the following grounds: a) That on 8th April 2025 this Honourable Court read out its Ruling on the 3rd Respondents and 1st Interested Party’s Notice of Motion application dated 22nd April 2024 seeking for a Garnishee Absolute Order be issued attaching Kshs. 68,557,865.71 to answer to the decretal sum together with interest at court rates accrued from 15th March, 2023 till payment in full; b) That the Court dismissed the said application and directed those costs to be borne by the Applicants in the matter; c) That the Applicants herein have written to the Deputy Registrar requesting for certied copies of the Ruling and typed proceedings for the purpose of appeal and is pursuing the same; d) That the 3rd Respondent and the 1st Interested Party intend to appeal against the said decision and there is a high likelihood that if the Court does not grant an order for stay of execution pending appeal, the Garnishee sum of Kshs. 68,557,865.71 that is held in KCB Account Number 1200560752 as directed by the Court on 30th May 2024 shall be withdrawn at the earliest opportune moment by the 1st Respondent thus rendering the appeal nugatory; e) That this application has been led timeously, the Ruling was read out today and the application has been led on the same date; f) That the appeal herein has a reasonable chance of success and if the aforesaid sums are withdrawn from the KCB Account, it will render the appeal nugatory. The 1st Respondent is likely to execute the Ruling and Order on the issue of costs of the application dated 22nd April 2024 at any time; g) That the matter is of utmost public importance and is public interest litigation as it relates to compensation for wayleave acquired by the 1st Respondent to be paid to the County Government on behalf of the communities residing within Tana River County in accordance with the Community Land Act. Therefore, the public interest favors the grant of an order for stay of execution pending appeal as the decision rendered by the High Court on 13th March 2023 has never been appealed against or reviewed by this Honourable Court; h) That it is in the interest of justice that the orders sought herein be granted by this Honourable Court; i) That in the view of the foregoing, it is in the interest of justice that this application be heard immediately and the orders sought herein be granted. The application is opposed. The 1st Respondent led grounds of opposition dated 17/4/2025 and a replying adavit sworn on 23/4/2025 by Florence Mitey, said to be its company secretary and general manager. The grounds of opposition were framed as follows: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18707/eng@2025-06-18 2

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6. 1. The ruling dated 8th April 2025 sought to be stayed had dismissed the garnishee application dated 22nd April 2024, and is therefore a negative order, which is incapable of execution, save in respect of costs only. There is nothing to be stayed; 2. By the ruling dated 8th April 2025, this honourable court already pronounced itself on the 1st Respondent’s government-nature and the core mandate being electricity transmission, and the consequential immunity under the Government Proceedings Act; should this honourable court proceed to allow the instant application, then this will be tantamount to the court sitting on its own appeal; 3. By the ruling dated 8th April 2025, this honourable court already upheld the 1st Respondent’s raised a preliminary objection opposing the mode of execution against the government; Should this honourable court proceed to allow the instant application, then this will be tantamount to the court setting aside its own decision. 4. Notably, the contents of the replying adavit echo the above grounds, I will therefore not reproduce the same herein. 5. On its part, the 1st Garnishee led a notice of preliminary objection dated 23/4/2025 and based on the following grounds: 1. The Application dated 08.04.2025 is incompetent, bad in law, and the same should be struck out in limine without further consideration; 2. The Application dated 08.04.2025 has been led in breach of the provisions of Section 75 of the Civil Procedure Act as read together with the provisions of Order 43 Rule 1 of the Civil Procedure Rules cap 21; 3. The 3rd Respondent and the 1st Interested Party did not seek Leave of Court in their Application dated 08.04.2025 in order to lodge an appeal against the Ruling delivered on 08.04.2025 in respect of the Garnishee Application dated 22.04.2024 whereas an appeal against such orders of the Court did not lie as a matter of right; 4. Consequently, there is no appeal preferred by the 3rd Respondent and the 1st Interested Party against the Ruling delivered on 08.04.2025 and therefore the application dated 08.04.2025 is made in a vacuum and the same should be dismissed for being an abuse of the Court process. The application was canvassed by way of written submissions which were highlighted by respective counsel in court. 1st Interested Party and 3rd Respondent’s/ Applicants’ Submissions 7. The Applicants framed two core issues, that is, whether they have met the requisite threshold for grant of stay of execution pending appeal, and whether the Court has the power to stay a negative order. 8. It is their position that the impugned ruling aects the disbursement of Kshs. 68,557,865.71, which had been ordered by this Court on 14th March 2023 to be deposited into a special interest-earning account for the benet of communities in Tana River County, in accordance with the Community Land Act. The said funds relate to compensation for wayleave acquired for the construction of the Garsen–Hola–Bura–Garissa 220kV transmission line, which has already been implemented. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18707/eng@2025-06-18 3

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9. The Applicants contended that they have satised the legal threshold for the grant of stay as provided under Order 42 Rule 6 of the Civil Procedure Rules. They assert that unless the stay is granted, there exists a real and imminent risk that the 1st Respondent, being the judgment debtor, may withdraw the impugned funds from the garnishee accounts, thereby defeating the substratum of the intended appeal. They argue that such a withdrawal would cause irreparable harm to the residents of Tana River County, whose interests they represent. 10. Reliance is placed on judicial precedents including Stanley Kang’ethe Kinyanjui v Tony Keter & 5 others [2013] eKLR and Otieno (Suing as the Personal Representative of Johana Kawa Nyagigo & Benjamin Otieno Kawa - Both Deceased) v Odira & 2 others [2023] KEELC, where the courts underscored the importance of preserving the subject matter of litigation to safeguard the ecacy of the appellate process. 11. Further, the Applicants submitted that the matter is of great public interest, aecting over 300,000 residents of Tana River County, and that the public interest overwhelmingly favors the grant of stay to avoid a situation where communities are deprived of compensation for land already compulsorily acquired. 12. On the question of timeliness, the Applicants averred that the application was led promptly, on the same day the ruling was delivered, and a notice of appeal was lodged shortly thereafter. They also argue that the requirement for security for the due performance of the decree is already satised, as the funds in question remain frozen in the garnishee account, and their disbursement can be directed by the Court in accordance with the outcome of the appeal. 13. Regarding the argument that the impugned ruling constitutes a negative order incapable of being stayed, the Applicants invoked the jurisprudence in Co-operative Bank of Kenya Ltd v Banking, Insurance & Finance Union (Kenya) [2015] eKLR, where the Court of Appeal held that in deserving circumstances, particularly where failure to stay would render an appeal nugatory, the Court may exercise discretion to grant stay notwithstanding the form of the order. 14. In conclusion, the Applicants urged this Court to nd that they have demonstrated an arguable appeal, a real risk of substantial and irreparable loss, that the application was made without delay, and that the interests of justice and public interest weigh heavily in favour of the relief sought. Alternatively, they pray that the Court grant a limited stay of at least sixty (60) days to enable them to pursue their appeal in the Court of Appeal. 1st Respondent’s Submissions 15. The 1st Respondent opposed the instant application, arguing that the Court’s ruling amounted to a negative order incapable of execution and therefore not subject to stay. It is submitted that the ruling did not direct any party to do or refrain from doing anything, nor did it order the payment of any sum, save for costs, thus rendering the application for stay legally untenable. In support of its position, the 1st Respondent relied on several authorities, including- Western College of Arts and Applied Sciences v Oranga & Others [1976] KLR; Co-operative Bank of Kenya Ltd v Banking Insurance & Finance Union (Kenya) [2015] eKLR; Kanwal Sarjit Singh Dhiman v Keshavji Jivraj Shah [2008] eKLR; Bernard Njoroge Kibaki t/a Njowa Njema Enterprises v Equity Bank Ltd & Another [2020] eKLR; Raymond M. Ombosao v Austine Ryan Maranga, HCCA No. 15 of 2010 (Kisii); and Kaushik Panchamatia & 3 Others v Prime Bank Limited & Another [2020] eKLR. 16. The 1st Respondent further submitted that the accounts targeted in the garnishee proceedings relate to donor-funded projects unrelated to the subject transmission line project (Garsen–Hola–Bura–Garissa https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18707/eng@2025-06-18 4

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220kV line), which was suspended in 2021 due to funding lapses. The Respondent avers that it is taking steps to secure further government funding for wayleave compensation, which, once available, will be deposited into the appropriate Special Interest-Earning Account. 17. The Respondent concluded that since no garnishee order nisi is currently in force, and the ruling of the Court was negative in nature, there is nothing to be stayed, and therefore the application should be dismissed. Analysis and Determination 18. The application before this Court seeks an order of stay of execution of this Court’s ruling delivered on 8th April 2025, which dismissed the 3rd Respondent’s and 1st Interested Party’s garnishee application dated 22nd April 2024. The primary issue for determination is whether the Court has jurisdiction to grant stay of execution of a negative order, and whether the applicants have met the requisite threshold for the grant of such relief under Order 42 Rule 6 of the Civil Procedure Rules. 19. It is not in dispute that the ruling of 8th April 2025 merely dismissed an application and did not direct any party to perform any act, nor did it restrain any party from any course of action. It is trite that a negative order, being one that does not command any party to do or refrain from doing anything, is not capable of execution and therefore cannot be stayed. The Applicants rely on the exception to this rule as articulated in Co-operative Bank of Kenya Ltd v Banking, Insurance & Finance Union (Kenya) [supra]. In that case, the Court of Appeal exercised its discretion to grant a stay of what was eectively a negative order. However, that was because the dismissal of the bank’s application would result in the immediate payout of a substantial decretal sum to an employee, which the bank asserted it would not be able to recover if the appeal succeeded. The Court found that although the order was negative in form, its eect was positive and irreversible, and allowing it to take eect would render the appeal nugatory. 20. The critical dierence is that in the Co-operative Bank case [supra] money was poised to be paid out as a direct consequence of the order. In contrast, in the present case, no such positive act has been ordered. The garnishee process was found to be procedurally defective, and the Court rightly dismissed it, reverting to the legal position that prohibits execution against the government under the Government Proceedings Act. 21. The Applicants have not demonstrated that the funds are under any immediate or compulsory threat of release, nor have they shown that the 1st Respondent has taken steps to execute the costs order. At most, their argument rests on a speculative risk, which does not meet the legal threshold for intervention through stay. While I am sympathetic to the applicants’ concerns raised particularly regarding community compensation, this Court must act within the boundaries of law and precedent. To do otherwise would amount to reopening a matter already determined on merit, eectively inviting the Court to sit on appeal of its own decision. 22. The outcome is that the Notice of Motion dated 8th April 2025 is hereby dismissed with costs. DATED, SIGNED AND DELIVERED AT MALINDI VIA ELECTRONIC MAIL ON THIS 18TH DAY OF JUNE, 2025. MWANGI NJOROGE JUDGE ELC, MALINDI https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18707/eng@2025-06-18 5

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