[2018] KEHC 7054 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MERU

MISC APPLICATION NO. 23 OF 2013

MOHAMED ABDI...........................................RESPONDENT

-Versus-

P.S MINISTRY OF INTERIOR AND COORDINATION OF

NATIONAL GOVERNMENT......................1ST APPLICANT

ATTORNEY GENERAL.............................2ND APPLICANT

RULING

[1] Before me is a Notice of Motion Application dated 24th October 2017 which is expressed to be brought pursuant to Order 42 Rule 6 (1) of the Civil Procedure Rules. The major order sought therein is stay of proceedings and execution of the order dated 20th April 2017, pending the hearing and final determination of the intended appeal.

[2] The application is premised upon the grounds set out in the application and the affidavit sworn Kepha Onyiso. It is deposed inter alia that the appeal has high chances of success and the Attorney General’s liberty was at risk. In the event that he was punished for contempt, his position as the Attorney General would be compromised leading to substantial loss. In addition, the decree herein was not directed at the Attorney General hence he should not provide any security for the performance of the decree.

[3] A Replying Affidavit sworn by Ashford Riungu, the Advocate for the Ex-parte applicant in opposition of the application. Counsel contended that the relief sought by the applicants under Order 42 Rule 6 of the Civil Procedure Rules was discretionary, entailing a novel balancing of two competing rights. According to him, there was no order capable of being executed in this matter as the only order the court made was one summoning the applicant to appear in court to show cause why he should not be cited for contempt of court.

[4] When the matter came up for hearing on 25th January 2018, Mr. Riungu intimated to the court that they would be relying on the replying affidavit and would not file submissions. Mr. Onyiso on the other hand for the applicants intimated to court that they would file submissions in two weeks. As the time of writing this ruling they had not done so. I will therefore consider the papers filed and the law.

Analysis and Determination

[5] I have been asked to stay these proceedings and execution of the order dated 20th April 2017, requiring the Attorney General to appear in court to show cause why he should not be cited and punished for contempt of court. It is not lost to this court that the Applicant had earlier on applied through an application dated 14th May 2017 for review of the orders in issues. The court dismissed the said application on 11th October 2017. Pack that fact for a while.

[6] Moving back to the character of the application before me, I wish to state that it is a twinning of two reliefs; of stay of proceedings and of stay of execution. My view is that the two reliefs should be argued in the alternative and on their respective thresholds. Fathom this: counsels have argued both reliefs as if they are one- an approach that breed confusion. See the lamentations of Githua J on the confusion that may arise when such approach is employed, in the case of KENYA POWER & LIGHTING COMPANY LIMITED vs. ESTHER WANJIRU WOKABI [2014] eKLR,that:

…It is apparent from the face of the application and from the submissions made by the parties that counsel for both parties were operating on the mistaken belief that the conditions prescribed inOrder 42 rule 6(2)were also applicable to applications for stay of proceedings which is not the case.”

[7] The appropriate test for stay of proceedings was stated in sheer clarity by Ringera J in the case of Global Tours &Travels Limited; Nairobi HC Winding Up Cause No. 43 of 2000

“As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of Justice .... the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously” (emphasis added)

[8] Applying the test, the order in question is the one summoning the AG to show cause why he should not be cited and punished for contempt of court. The AG had been summoned earlier to appear in court to state whether it was the state unwritten policy not to obey court orders. Arising from the default thereto, the order to show cause was made. I need not enter into the history of this matters which is quite disheartening. Except, to state that it will be most imprudent to stay these proceedings on account of a corollary order against the Ag which is really in the realm of administration of justice rather than the merits of the case. After weighing the pros and cons of granting stay of proceedings, I find that this is not a proper case to exercise this court’s discretion in that direction. I reject the invitation to stay proceedings.

[9] What about stay of execution? Onyiso argued that the liberty of the AG is at risk and should he be punished for contempt, his office will be compromised. He saw substantial loss occurring to the office of the AG should such eventuality happen. What more compromise of public office can there be than disobedience of court orders by the very office of public interest defender? I do not see any substantial loss occurring here upon the AG as summon herein is to ensure court orders are obeyed. Accordingly, the Application dated 24th October 2017 is without merit and is dismissed. The eminent occupant of the office of the AG, and who was a judge of the Court of Appeal, qualifies to occupy the chairs of Adam Smith and Dugald Stewart, of Reid and Black, of Playfair and Jamieson; I believe he will inject new approach to matters of administration of justice by the office of the AG. This applies mutatis mutandis and copy of this ruling will be filed in JR Miscellaneous Application No.11 of 2015. It is so ordered.

Dated, signed and delivered in open Court at Meru this 9th day of May, 2018.

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F. GIKONYO

JUDGE

In the presence of:

Mr. Kimathi advocate for Onyiso advocate for Attorney General

R.A.G. Riugu advocate for ex parte applicant

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F. GIKONYO

JUDGE