Peesam Limited v Procurement Regulatory Board & 3 others

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **JUDICIAL REVIEW NO. E197 OF 2024** **PEESAM LIMITED…………………………………………………………….…APPLICANT** **VERSUS** **THE PROCUREMENT REGULATORY BOARD…..….…….....1ST RESPONDENT** **CHARLES NZAI…………………………………………………….…….2ND RESPONDENT** **AND** **KENYA AIRPORTS AUTHORITY………………….….…1ST INTERESTED PARTY** **KENYA PROFESSIONAL** **CLEANERS ASSOCIATION…………………….…………..2ND INTERESTED PARTY** **RULING** 1. Judgement was delivered herein on 31st July 2026, wherein the judicial review orders sought herein were denied, and the cause dismissed. The applicant had been debarred by the 1st respondent, on 20th August 2024, and it had initiated the proceedings herein, seeking the quashing of that debarment, the prohibition of the 1st respondent from publishing the said decision and forwarding it for gazettement, and an order to compel the investigation of the 2nd respondent by the relevant agency. 2. The applicant has now come back to court, by way of a motion, dated 4th August 2026, seeking stay of execution, implementation and enforcement of the judgement of 31st July 2026; and injunctive relief, with respect to enforcement of the decision of 20th August 2024. It is averred that the applicant is dissatisfied with the said judgement, and that it is in the process of appealing against it. It is argued that the applicant would suffer loss, from the debarment, should the order be implemented, during the currency of the appeal, which would render the appeal nugatory. The application is premised on order 42 rule 6 and order 51 rule 1 of the Civil Procedure Rules, and Article 159(2)(a) of the Constitution. 3. The 1st respondent has reacted to the application, vide a replying affidavit, sworn by Mr. Raphael Muia Ngalatu, on 14th August 2026. The response highlights that the impugned judgement, of 31st July 2026, is negative, and it places no obligation capable of being stayed. It is averred that the debarment became effective the moment the 1st respondent rendered its decision, on 20th August 2024, and the application for stay is, accordingly, overtaken by events. 4. The application has been canvassed by way of written submissions. 5. The written submissions by the applicant are dated 24th August 2026, and turn around only 1 issue, whether the grounds for grant of preservatory or injunctive orders have been established. It relies on *Giella vs. Cassman Brown* [1973] EA 358, *Patricia Njeri & 3 Others vs. National Museum of Kenya* [2004] eKLR, *Stanley Kang’ethe Kinyanjui vs. Tony Ketter & 5 others* [2013] eKLR, *James Wangalwa & Another vs. Agnes Naliaka Cheseto* [2012] KEHC 1094 (KLR) and *African Merchant Assurance Co. Ltd vs. Nyamai Kea & Another (Suing on behalf of the Estate of Vincent Kyalo Nyamai (Deceased))* Milimani High Court Miscellaneous Civil Application No. 540 of 2019. 6. The 1st respondent has filed submissions dated 20th August 2026, and addresses issues around unreasonable delay, exposure to substantial loss and existence of an arguable appeal. It cites *James Wangalwa & another vs. Agnes Naliaka Cheseto* [2012] eKLR. 7. The provisions, of the Civil Procedure Rules, with relation to post-judgement and post-ruling applications, where an appeal has been lodged against a judgement or order of the High Court, apply with respect to appeals to the Court of Appeal, by virtue of order 42 rule 6(4), which ought to be read together with rule 43 of the Court of Appeal Rules. Under order 42 rule 6, the only order, that the High Court may make, is limited to stay of execution of the orders that the High Court might have made in the impugned judgement or ruling. Order 42 rule 6(4) says that “*For the purposes of this rule an appeal to the Court of Appeal shall be deemed to have been filed when under the Rules of that Court notice of appeal has been given*.” 8. The judgement delivered herein, on 31st July 2026, merely dismissed the judicial review proceedings. No order was made, in that judgement, which required the taking of any action, by the respondents or the interested parties, which would require to be stayed by the High Court, pending hearing and disposal of an appeal before the Court of Appeal. A negative order, like the one made in the judgement of 31st July 2026, dismissing the motion dated 4th September 2024, is not available for stay of its execution. The prayer, for stay of execution of the judgement of this court, of 31st July 2026, pending an appeal at the Court of Appeal, would not be available, in the circumstances. 9. The other principal order sought relates to grant of an injunction, to prevent performance of the order of the 1st respondent made on 20th August 2026. The High Court exercises its power, with respect to applications for orders pending appeal, under order 42 of the Civil Procedure Rules. None of the provisions, in order 42 of the Civil Procedure Rules, provide for grant of any other order, except stay of execution. There is no provision for grant of an injunction pending appeal, under order 42, and the High Court would have no jurisdiction to grant an order that the Civil Procedure Rules has not empowered it to make. 10. The provision, which vests jurisdiction for granting of injunctions pending appeal, is the Court of Appeal Rules. Rule 5(2)(b) provides that “*the Court may - in any civil proceedings where a notice of appeal has been lodged in accordance with rule 77, order a stay of execution, an injunction or a stay of any further proceedings on such terms as the Court may think just*.” The “*Court*,” referred to in that provision, is, by virtue of Rule 2 of the Court of Appeal Rules, “*the Court of Appeal ..*.” That provision does not confer any power on the High Court to grant injunctions pending appeal, for rule 5(2)(b) grants power only to the Court of Appeal. 11. There is also rule 43 of the Court of Appeal Rules, which makes reference to applications filed at the superior court, which includes the High Court. Rule 43 talks about the making of the orders provided under Rule 5(2)(b) of the Court of Appeal Rules. However, the same ought to not be read as vesting the powers, conferred by Rule 5(2)(b) of the Court of Appeal Rules, on the High Court. Rule 43 ought to be read together with order 42 of the Civil Procedure Rules, with respect to the powers exercisable by the High Court, or the orders that the High Court can make on applications pending an appeal before the Court of Appeal; and with Rule 5(2)(b) of the Court of Appeal Rules, with respect to the orders that the Court of Appeal can make, relating to applications seeking orders pending hearing of appeals before it. 12. For avoidance of doubt, Rule 43 of the Court of Appeal Rules says: “*43. Application to superior court* *The Court may entertain an application for stay of execution, injunction, stay of further proceedings or extension of time for the doing of any act authorized or required by these Rules, notwithstanding the fact that no application has been made in the first instance to the superior court*.” 1. Reference to “*Court*,” with a capital “C,” in Rule 43, is to the Court of Appeal, going by the interpretation offered by Rule 2 of the Court of Appeal Rules. The reference to “*superior court*,” in Rule 43, employs the smaller “c,” to mean a court subordinate to the Court of Appeal, and a superior court, in this context, refers to the High Court and courts of equal status. 2. Going by what I have discussed in the foregoing paragraphs, there would be no jurisdiction for me to grant the injunctive order sought in the application herein. 3. The applicant has cited Article 159(2)(a) of the Constitution. That provision is not a cure all. It relates to technicalities of procedure. Order 42 rule 6 of the Civil Procedure Rules and Rules 5(2)(b) and 43 of the Court of Appeal Rules vest jurisdictions, on the High Court and the Court of Appeal, respectively, with respect to the orders that the 2 courts can grant, relating to appeals pending at the Court of Appeal. The matters they deal with are not the sort of thing that Article 159(2)(a) of the Constitution can override. I reiterate, that they are about jurisdiction, they vest it, while Article 159(2)(a) of the Constitution is not about jurisdiction, but rather about technical rules of procedure. Consequently, Article 159(2)(a) of the Constitution cannot, and should not, be invoked, to override Order 42 rule 6 of the Civil Procedure Rules and Rules 5(2)(b) and 43 of the Court of Appeal Rules, so as to vest the High Court with a jurisdiction to grant the sort of injunctions that the applicant seeks in the application herein. 4. The parties have addressed me on issues around the conditions for grant of stay, that is about the application for stay being filed timeously, without unreasonable delay, the applicant being exposed to substantial loss, should the appeal ultimately succeed, and existence of an arguable appeal. Without prejudice to what I have discussed above, I will consider those grounds. 5. The impugned judgement was delivered on 31st July 2026, the application for stay was lodged herein on 3rd August 2026. There was no delay, hence the application was filed timeously. On substantial loss, the applicant has merely alleged that it would suffer substantial loss, but it has not sought to demonstrate how that would be so. 6. On arguability of the appeal, I note that it is not required, under Order 42 rule 6 of the Civil Procedure Rules, that it be established or addressed at the High Court. It is a requirement, under Rule 5(2)(b) of the Court of Appeal Rules, to be considered in applications placed before “*the Court*.” The High Court need not consider the arguability of the appeal, for it would have already taken a position on the matter, in its impugned judgement. In any case, the High Court would be *functus officio*, on the merits of the matter, after pronouncing itself on it in the judgement, and the court, properly seized of the merits, at this stage, would be the Court of Appeal. 7. As discussed above, Order 42 rule 6 of the Civil Procedure Rules does not raise the issue of the arguability of the appeal at the Court of Appeal, for consideration by the High Court. What it does is to require furnishing of security, for due performance. The parties have not addressed me on that, and I shall not advert to it. 8. In the end, I am not persuaded that the prayers sought, in the motion, dated 4th August 2026, are adequately substantiated or established, and I find and hold that the said application has not reached the threshold for grant of the prayers sought. I, hereby, therefore, disallow and dismiss the said application. Each party shall bear its own costs. Orders accordingly. **DELIVERED VIA CTS, DATED AND SIGNED IN CHAMBERS, AT NAIVASHA, ON THIS 31ST DAY OF AUGUST 2026.** **W MUSYOKA** **JUDGE** **Mr. Abdirahman, Court Assistant.** **Advocates** **Ms. Kiage, instructed by Chepkuto Advocates LLP, for the applicant.** **Mr. Ngalatu, instructed by the Attorney General, for the 1st E292respondent.**