[2021] KEHC 695 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL APPEAL NO. E527 OF 2021

HON. REUBEN GITAU KARANJA...........................................................................1ST APPELLANT

HON. SAMUEL RIMUI KAIYANI............................................................................2ND APPELLANT

-VERSUS-

HON. JOHN KIERU WAMBUI................................................................................1ST RESPONDENT

HON. KARIUKI MUCHIRI.....................................................................................2ND RESPONDENT

JUBILEE PARTY......................................................................................................3RD RESPONDENT

RAPHAEL TUJU, ACTING SECRETARY GENERAL JUBILEE PARTY......4TH RESPONDENT

THE COUNTY ASSEMBLY OF NYANDARUA...................................................5TH RESPONDENT

HON. SPEAKER COUNTY ASSEMBLY OF NYANDARUA............................6TH RESPONDENT

RULING

1. Before this court for determination are two (2) applications. Thefirst is the Notice of Motion dated 25th August, 2021 (“the first application”) brought by the 1st and 2nd appellants supported by the grounds laid out on its face and the facts stated in the affidavits sworn by the appellants separately, seeking for the substantive order for stay of the implementation of the judgment delivered by the Political Parties Tribunal (“the Tribunal”) made on 6th August, 2021 pending the hearing and determination of the appeal lodged against the aforesaid judgment.

2. The 6th respondent opposed the first application by putting inthe replying affidavit sworn by James Wahome Ndegwa.

3. The second application is the Notice of Motion dated 8thSeptember, 2021(“the second application”) brought by the 1st and 2nd respondents and supported by the grounds set out on its face and the facts stated in the affidavit of the 1st respondent. The following are the orders sought therein:

i. Spent.

ii. Spent.

iii. THAT pending the hearing and determination of the appeal, this Honourable Court be pleased to set aside and/or vacate its orders issued on 25th August, 2021 for being in conflict with the orders in NAKURU ELRC CASE NO. E007 OF 2021-NYANDARUA COUNTY ASSEMBLY SERVICE BOARD & ANOTHER V NYANDARUA COUNTY ASSEMBLY & 7 OTHERS.

iv. THAT pending the hearing and determination of the appeal, this Honourable Court be pleased to order the consolidation of the instant appeal with NAIROBI HCCA NO. E551 OF 2021-HON. JOHN KIERU WAMBUI & ANOTHER V JUBILEE PARTY & 5 OTHERS and to give directions as to the hearing of both appeals.

v. THAT costs of the application be provided for.

4. The second application is opposed by way of the replyingaffidavit sworn by the 2nd appellant on 26th October, 2021.

5. The two (2) applications were canvassed through brief oralarguments by the respective parties’ advocates.

6. I have considered the grounds set out on the face of theapplications; the facts deponed in the respective affidavits supporting and opposing them; and the contending oral submissions.

7. A brief background of the matter is that the 1st and 2ndrespondents instituted a complaint against the 3rd respondent at the Tribunal namely Complaint No. E013 of 2021 and sought for various declaratory orders to the effect that the 3rd respondent had no powers to remove them from office as members of the Nyandarua County Assembly Service Board (“the Board”) and that such removal is unlawful. The said respondents also challenged the swearing in and appointment of the appellants herein to the Board.

8. Upon hearing the parties, the Tribunal in its judgment deliveredon 6th August, 2021 found the removal of the 1st and 2nd respondents to be un-procedural and unlawful, and further declared their replacement to be void and inconsequential.

9. The aforementioned judgment has triggered the present appeal.

10. Returning to the matter now before this court, I will firstdispense with the second application which as earlier noted seeks twin orders.

11. Concerning the order seeking to set aside the orders issued bythis court on 25th August, 2021 in his supporting affidavit the 1st respondent states that the ex parte orders for a stay of execution were obtained fraudulently and through material non-disclosure and misrepresentation of the fact that the matter had been settled in NAKURU ELRC CASE NO. E007 OF 2021-NYANDARUA COUNTY ASSEMBLY SERVICE BOARD & ANOTHER V NYANDARUA COUNTY ASSEMBLY & 7 OTHERS by way of the court order issued on 3rd June, 2021 and which order is still in force.

12. The 1st respondent further states that the interim orders for astay of execution which were granted by this court are in direct conflict with the aforementioned order of 3rd June, 2021.

13. The above assertions were reiterated in the replying affidavit ofJames Wahome Ndegwa on behalf of the 6th respondent.

14. In reply, the 2nd appellant states that to grant the order soughtfor setting aside and/or vacating the earlier orders made by this court would result in prejudice to the appellants in view of the appeal already in place.

15. Upon perusing of the record, I note that upon hearing the firstapplication ex parte on 25th August, 2021 this court granted an order for a stay of execution of the impugned judgment delivered by the Tribunal, pending interparties hearing of the first application.

16. From the foregoing, it is clear that the aforementioned order fora stay of execution was issued in the interim and since the material applications are presently at the ruling stage, the said order is spent. Consequently, there is no interim order in place to be vacated/set aside.

17. The second order sought under the second application is that ofconsolidation of the present appeal with NAIROBI HCCA NO. E551 OF 2021-HON. JOHN KIERU WAMBUI & ANOTHER V JUBILEE PARTY & 5 OTHERS.

18. The 1st respondent states in his supporting affidavit that theaforecited appeal emanated from the impugned judgment delivered by the Tribunal and hence the same ought to be consolidated with the present appeal.

19. In reply, the 2nd appellant states in his affidavit that the two (2)appeals have since been consolidated.

20. Upon my perusal of the record, I note that NAIROBI HCCA NO.E551 OF 2021-HON. JOHN KIERU WAMBUI & ANOTHER V JUBILEE PARTY & 5 OTHERS was lodged by the 1st and 2nd respondents vide the memorandum of appeal dated 2nd September, 2021. I also note that the appeal lies against the impugned judgment, similar to the instant appeal.

21. Upon the perusal of the record, I did not come across anythingto indicate that a consolidation of the appeals was done.

22. In view of the foregoing circumstances, I am satisfied that itwould be proper to have the two (2) appeals consolidated and heard together.

23. This brings me to the first application which essentially seeks foran order of a stay of execution/implementation of the impugned judgment.

24. The relevant provision is Order 42, Rule 6(2) of the CivilProcedure Rules which sets out the conditions to be met when it comes to an application seeking an order for a stay of execution, as follows:

a. The application must be brought without unreasonable delay;

b. The applicant must demonstrate that substantial loss may result; and

c. Provision should be made for security.

26. I will begin with the first condition. As earlier mentioned, thedecision sought to be stayed was delivered on 6th August, 2021 whereas the first application was filed on 25th August, 2021. In my view, there has been no unreasonable delay in bringing the application.

26. This brings me to the second condition on substantial loss. Theappellants on the one hand state and submit that unless an order for a stay of execution is granted, they stand to suffer substantial loss by virtue of the 1st and 2nd respondents’ likelihood of executing the decision of the Tribunal thereby resulting in loss of protection of their employment, which will then render the appeal nugatory.

27. The 1st and 2nd respondents on the other hand state and submitthat there are no orders capable of being executed or stayed, and their averments were echoed by Ojare, counsel for the 5th and 6th respondents.

28. It is apparent that the orders made by the Tribunal weredeclaratory in nature, save for the order on costs. It is also apparent that the ELRC in NAKURU ELRC CASE NO. E007 OF 2021-NYANDARUA COUNTY ASSEMBLY SERVICE BOARD & ANOTHER V NYANDARUA COUNTY ASSEMBLY & 7 OTHERS on 4th June, 2021 granted inter alia, a stay of execution and injunctive orders concerning the replacement of the 1st and 2nd respondents by the 5th respondent pending the hearing and determination of the claim. I concur with the submissions of the respondents that this position was not disclosed to this court by the appellants.

29. Be that as it may, there is nothing to indicate that the aforesaidorders have been vacated/set aside or challenged on appeal.

30. It is therefore apparent that whether or not substantial loss mayresult to the appellants, the granting of an order for a stay of execution at this stage may turn out to be in conflict with the interlocutory orders already in place in ELRC in NAKURU ELRC CASE NO. E007 OF 2021-NYANDARUA COUNTY ASSEMBLY SERVICE BOARD & ANOTHER V NYANDARUA COUNTY ASSEMBLY & 7 OTHERS in respect to the impugned judgment.

31. Concerning the third condition on the provision of security, it isnoteworthy that the impugned judgment is non-monetary in nature and hence the issue of security would not arise.

32. In view of the foregoing circumstances, I decline to grant theorder sought in the first application.

33. Consequently, I hereby make the following orders:

i. The Notice of Motion dated 25th August, 2021 ishereby dismissed with no order as to costs.

ii. The Notice of Motion dated 8th September, 2021 isallowed thus this apapeal is consolidated with HCCA no. E551 OF 2021-HON. JOHN KIERU WAMBUI & ANOTHER V JUBILEE PARTY & 5 OTHERS to be consolidated with the instant appeal.

iii. In the circumstances, each party shall bear its owncosts of the Notice of Motion dated 8th September, 2021.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 26TH DAY OF NOVEMBER, 2021

…….….…………….

J. K. SERGON

JUDGE

In the presence of:

…………………………………. for the 1st and 2nd Appellants

…………………………………. for the 1st and 2nd Respondents

…………………………………. for the 3rd and 4th Respondents

…………………………………. for the 5th and 6th Respondents