The Republic v James Muema Nthiwa

RULING 1. 2. The Application for determination is dated 27/09/2023 and is brought under Order 40 Rule 1 & 2, Order 51 Rule 51 of the Civil Procedure Rules; Sections 1A, 3 & 3A of the Civil Procedure Act and all other enabling provisions of the law. It seeks; a. Spent b. That this honorable court does arrest and or stops the pending ruling from being delivered. c. That this honorable court do and hereby does set aside the proceedings of 1st August 2023 giving rise to the ruling date pending the hearing and determination of the Application. d. That this honorable court does grant leave to the Respondent/Applicant to put in their response to the Application herein and the attached Replying Affidavit be deemed duly filed upon payment of requisite court fees. e. That no order as to costs. The Application was supported by the grounds on its face and the affidavit of Juma Babu sworn on the same date. He deponed that he is an Advocate of the High Court of Kenya and that this matter is pending ruling which will be prejudicial to the Respondent if delivered without the Respondent/ Applicant being granted leave to respond to the Judicial Review Application. That, the Respondent obtained leave to file an appeal from the Court of Appeal in Nairobi and execution of the judgment of this court delivered on 12/07/2029 was stayed. The Ruling of the Court of Appeal is exhibited as JB-1. 3. That, the Respondent has firm grounds of opposition to the Judicial Review Application and the Appeal to which the Respondent obtained leave to prosecute will be rendered nugatory if the Ex-parte Applicant’s Application is allowed. A signed copy of Replying Affidavit is exhibited as JB-2. 4. That, counsel for the Respondent forgot to diarize the matter on the day the matter came up for mention and that an inadvertent and honest mistake of an Advocate should not be visited upon the government. That, the ex-parte Applicant is seeking payment from public funds thus the need to bring to the attention of court all issues before the ruling is delivered. That, the ex-parte Applicant did not bring to the attention of the court all facts hence it will be in the public interest to allow this Application. 5. The ex-parte Applicant opposed the Application through a Replying Affidavit sworn on 23/07/2025 wherein he deponed that vide a Notice of Motion dated 14/04/2025, he filed Civil Application No. E245 of 2025 at the Court of Appeal seeking the withdrawal of the Notice of Appeal dated 23/07/2019 and lodged on 26/05/2020 against the judgment of this court (C. Kariuki J)-HCCC No. 1 of 2018delivered on 12/07/2019. The withdrawal Application is exhibited as JMN 1. 6. That, on 14/07/2025, a 3-judge bench heard the Application and granted the orders sought hence vacating the stay orders granted to the Respondents. A copy of the Court of Appeal orders is exhibited as JMN 2. 7. He deponed that the Application by the Respondent, seeking to have the ruling of this court arrested on account of the pending appeal, has been rendered obsolete as there neither exists an appeal nor stay at the Court of Appeal. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6476/eng@2026-04-08 2

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8. I have considered the Application, the Replying Affidavit and the history of this matter, the only issue for determination is whether the Application is merited. Analysis & Determination 9. The Application for judicial review orders of mandamus was scheduled for ruling on 02/10/2023 but the ruling was arrested, via orders of this court issued on 28/09/2023, on account of stay orders issued by the Court of Appeal (Okwengu, Omondi & Mativo JJ.A) on 12/10/2022. 10. On 14/07/2025, the Court of Appeal (M’inoti, Joel Ngugi & Odunga JJ.A) rendered itself as follows in Civil Application No. 245 of 2025; James Muema Nthiwa t/a Upright Investments & Logistics Ltd v Makueni Sand Conservation & Utilization Authority; i. Upon the Notice of Motion dated 14th April 2025 being called out for hearing, Mr. Kimundi, learned counsel, holding brief for Mr. Makundi for the applicant was present, but there was no attendance by the respondent’s counsel, although its advocates were duly served with today’s hearing notice. ii. The respondent also has neither responded to the application nor filed written submissions as directed. iii. Having considered the application together with applicant’s written submissions dated 28th April 2005, we allow the said motion and deem the Notice of Appeal dated 29th July 2019 as withdrawn pursuant to rule 85(1) of the Court of Appeal Rules. 11. In the circumstances, the Application herein, dated 27/09/2023, has been rendered obsolete as the stay orders by the Court of Appeal have been vacated and the appeal is non-existent. 12. The application has no merit and is dismissed accordingly with costs to the respondent. RULING DATED SIGNED AND DELIVERED VIA CTS THIS 28TH APRIL 2026 MUMBUA T MATHEKA JUDGE CA Chrispol Ex-Parte Applicant’s Advocate Andrew Makundi & Co. Advocates 1st Respondent’s Advocate Office of the County Attorney-Makueni county. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6476/eng@2026-04-08 3

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