[2017] KEHC 9516 (KLR)

REPUBLICOF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

COMMERCIAL & TAX DIVISION

CIVIL CASE NO. 342 OF 2014

SKAIR ASSOCIATES ARCHITECTS.…..................................…...PLAINTIFF

-VERSUS-

THE EVANGELICAL LUTHERANCHURCH OF KENYA......1ST DEFENDANT

THE ARCHBISHOP OF THE EVANGELICAL

LUTHERAN CHURCH OF KENYA…...…………....…....…..2NDDEFENDANT

THE GENERAL SECRETARY

EVANGELICAL LUTHERAN CHURCH OF KENYA.............3RD DEFENDANT

THE TREASURER EVANGELICAL

LUTHERAN CHURCH OF KENYA……...……..………...…4TH DEFENDANT

TRUSTEES OF THE EVANGELICAL

LUTHERAN CHURCH OF KENYA……………....….…….. 5TH DEFENDANT

RULING

[1]The Plaintiff, Skair Associates Architects, filed this suit on 6 August 2014, seeking judgment against the Defendants jointly and severally for :

[a]Kenya Shillings 53,198,263/=

[b]Costs of the suit

[c]Damages for breach of contract

[d]Interest for [a], [b] and [c] at commercial rate from date of Judgment to payment in full.

[e]Any other relief that the Court may deem fit to grant.

[2]The Plaintiff's cause of action was that on or about the 22 February 2010, the 2nd Defendant appointed the Plaintiff as Project Manager/Project Architects for the construction of 24 residential apartments on land known as Land Reference Number 1870/VI/89 in Westlands Area in Nairobi City County at an agreed total contract sum of Kshs. 234,093,293/=; and that due to non-payment and generally non-compliance with the terms and conditions of the Agreement and Conditions of Contract for Building Works on the part of the 2nd Defendant, the Quantity Surveyor procedurally issued the Plaintiff with Notice of Intention to Suspend Works for Non-payment on 25 June 2011. A sum total of Kshs. 53,198,263/= was then due in respect of interim fee notes forwarded to the 2nd Defendant between 6 June 2011 and 20 November 2012.

[3]Upon filing a Defence, the Defendants moved the Court vide an application dated 24 February 2015 for the striking out of the Plaint, or in the alternative for the striking out of the names of the 1st, 2nd, 3rd, 4th and 5th Defendants from the suit. That application was heard and determined on 18 June 2015; and an order issued directing the Plaintiff to make the necessary application to enjoin the proper defendants within 30 days, failing which the suit would stand dismissed without any further reference to the Court. However, the Plaintiff was unable to move the court within the 30 days window as directed by the Court because the court file went missing. In the interim, the Defendants obtained a Decree in their favour pursuant to the Court Ruling of 18 June 2014. The Decree was issued on 21 October 2015 for the striking out of the suit. Thereupon, the Defendants proceeded to file their Bill of Costs for taxation and had it served on the Plaintiff. It was this state of affairs that provoked the application for setting aside dated 21 March, 2016,which was determined on7 October 2016and orders issued as follows:

[a] The decree dated 21 October, 2015 be and is hereby set aside and the suit herein is reinstated for disposal on the merits.

[b] The Plaintiff’s application for amendment dated 15 July, 2015 and filed on 16 July 2015 be forthwith set down for hearing.

[c] The costs of the application shall be in the cause.

[4]This Ruling is therefore in respect of the application dated15 July 2015,which was filed underOrder 8 Rule 3, 5and7 of the Civil Procedure Rules,for the following orders:

[a]That the Plaintiff be granted leave to enjoin the Registered Trustees of Evangelical Lutheran Church of Kenya as set out in the draft Amended Plaint;

[b]That the 1st, 2nd, 3rd, 4th and 5th Defendant be struck out in accordance with the Ruling delivered on 18 June 2015;

[c]That the Plaintiff be granted leave to amend their Plaint as set out in the draft Amended Plaint annexed to application;

[d]That the draft Amended Plaint be deemed as duly filed and served;

[e]That the costs of the application be provided for.

[5]The application was premised on the concession that the 1st, 2nd, 3rd, 4th and 5th Defendants were improperly joined as parties to this suit; and the averment that the error was bona fide and that it is now imperative to comply with the Court Ruling of 18 June 2015. In the Supporting Affidavit sworn by Robert Muriuki Mbogori on 15 July 2015, it was deposed that pursuant to the Ruling aforementioned, Counsel for the Plaintiff requested the Registrar of Societies to carry out a search and confirm the registered Trustees of Evangelical Lutheran Church in Kenya; and that in response to that request the Registrar of Societies furnished him with a letter indicating the names of all the registered Trustees of the 1st Defendant. It was therefore conceded by Counsel that the 2nd, 3rd and 4th Defendants, as officials of the 1st Defendant, do not have the capacity to sue or be sued on behalf of the 1st Defendant; and that only the registered Trustees of the 1st Defendant have the capacity to be sued on behalf of the 1st Defendant.

[6]In his Supplementary Affidavit sworn on 14 November 2016, Counsel for the Plaintiff averred that, pursuant to the orders of the Court in paragraphs 41, 42 and 43 at pages 14 and 15 of the Ruling dated 18 June 2015, the Plaintiff was required to conduct a search to prove that the Evangelical Lutheran Church in Kenya Registered Trustees is a body corporate with capacity to sue and be sued, which was done. Counsel provided proof of the search that he conducted at the Registrar of Societies by way of Annexures SAA-3, SAA-4, to show that the Evangelical Lutheran Church in Kenya Registered Trustees (the Trustees) is indeed a body corporate capable of suing and being sued. It was further averred that the Trustees as a body corporate was registered on 2 February 1965; and that the Constitution of the Evangelical Lutheran church in Kenya, at Article XVIII Clause 2 sub-clause VI, authorizes the Trustees of the church to take or defend any legal proceedings on behalf of the church. Accordingly, it was the contention of the Plaintiff that it would only be proper and just to allow the proposed amendment in terms of the draft attached to the application and marked Annexure SAA-2 to the Supporting Affidavit.

[7]The application was opposed by the Defendants on the basis of the Grounds of Opposition filed on their behalf on 4 December 2015 by their Advocate, Mr. G. Otieno Ochich. It was their contention that the proposed Defendant is not the proper defendant in the suit; that the case against the proposed Defendant is already determined, and no appeal having been filed, is therefore closed; that the Supplementary Affidavit sworn by Counsel for the Plaintiff comprises a change in substance and therefore a departure from the facts as earlier deposed to by Counsel in the Supporting Affidavit and should accordingly be expunged from the record; and that the Plaintiff had misinterpreted the ruling of 18 June 2015by Kamau, J.

[8]In urging their client's respective cases, Counsel filed and exchanged written submissions; and while the Plaintiff's Counsel argued that the application was necessitated by the Court Ruling dated 18 June 2015, the Defence Counsel was of the posturing that the application is premised on a misinterpretation of that decision. The Plaintiff's written submissions were filed herein on 23 November 2016 and it is, in the main, a reiteration of the Plaintiff's contention that at Paragraphs 41, 42 and 43 of the Ruling dated 18 June 2015, the Plaintiff was directed to conduct a search to prove that the Evangelical Lutheran Church in Kenya Registered Trustees is a body corporate with the capacity to sue and be sued; and that having made this inquiry, Counsel filed a Supplementary Affidavit dated 14 November 2016 to avail the documents to prove compliance with the Court's directions; and that the Evangelical Lutheran Church in Kenya Registered Trustees was registered as a corporate body on 2 February 1965. It was therefore submitted that the Trustees, as a body corporate, is the proper party to be joined as a Defendant in this matter, and that the proposed amendment is warranted.

[9]The Defence submissions were filed on 7 December 2016 and the main arguments presented thereby are that, by the Court Ruling of 18 June 2015, the Plaintiff was directed to join a new and proper defendant; but that in the proposed Amended Plaint, there is no such new defendant named; and that to the contrary, the Plaintiff has simply rephrased and restated the name of one of the parties, namely the 5th Defendant. It was argued that by so doing, the Plaintiff had fallen short of doing what the Court had ordered to be done. It was further submitted by the Defendants that the Court had already considered the propriety or otherwise of the 5th Defendant being enjoined as a defendant; and therefore that the instant application only serves to reopen an already determined issue for reconsideration, thereby providing the Plaintiff with a second bite at the cherry, which would be irregular. The Defendants posited that the Plaintiff ought to have appealed the Ruling of 18 June 2015 instead.

[10]The Defendants also took issue with the Plaintiff's Supplementary Affidavit, arguing that it amounts to abuse of the court process. According to them, the averments in the Supplementary Affidavit show that the Plaintiff has substantially changed the character and complexion of its Notice of Motion application as initially conceived, and on the basis of which the Defendants filed Grounds of Opposition. It was urged by Counsel for the Defendants that this shift is tantamount to changing goal posts and is likely to embarrass the Defendants' case; and that by doing so, the Plaintiff has, in effect, amended its Notice of Motion without leave of the Court. Counsel accordingly urged the Court to either disregard the Supplementary Affidavit, or otherwise expunge it from the record.

[11]The last argument raised by the Defendants in their written submissions was that the Plaintiff had misrepresented and misinterpreted the Ruling of Kamau, J. dated 18 June 2015, in so far as it is suggested, in the Plaintiff's written submissions, that all that the Plaintiff was required to do was to conduct a search on the 5th Defendant at the relevant registry. Their contention was that the Court Order required the Plaintiff to find a proper defendant and make a necessary application to join such a proper defendant.

[12]I have carefully considered the application, the pertinent affidavits as well as the annexures thereto and the written submissions filed by Counsel. The first issue for consideration is in connection with the propriety of the Plaintiff's Supplementary Affidavit, sworn by Robert Muriukion 14 November 2016 and filed herein on 23 November 2016 The Defendants would like to have it expunged from the record for the reason that it contains information that amounts to a substantial departure from the grounds set out in the Notice of Motion dated 15 July 2015 and the averments in its Supporting Affidavit. However, having perused the two affidavits within the context of the proceedings of the Court todate, and in particular the Ruling dated 18 June 2016, I can find no such departure as alleged.

[13]The grounds set out in the Notice of Motion dated 15 July 2015 are that the Defendants were improperly joined and that the error was a bona fide and genuine mistake, and was not intended to mislead; and that pursuant to the Ruling given by Kamau, J. on 18 June 2015, the Plaintiff was directed to make the necessary application to enjoin the proper defendant. These are the very grounds that were explicated in the Supporting Affidavit of Robert Muriuki annexed to the application. All that the Supplementary Affidavit has done is to exhibit additional documents, including documents obtained from the Registrar of Societies in proof of the averments. I therefore have no hesitation in dismissing the argument that the averments in the Supplementary Affidavit constitute a departure from the Plaintiff's case as initially conceived. Indeed, Order 8 Rule 3(5)of theCivil Procedure Rules is explicit that:

"An amendment may be allowed ... notwithstanding that its effect will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the suit by the party applying for leave to make the amendment."

At any rate, there is no disputation that the documents were obtained in compliance with the Court Ruling of 18 June 2015.

[14]The application was filed pursuant to Order 8 Rules 3, 5 and 7 of the Civil Procedure Rules; and Rule 3(1) thereof provides that:

"...the court may at any stage of the proceedings, on such terms as to costs or otherwise as may be just and in such manner as it may direct, allow any party to amend his pleadings."

And Rule 5(1) in particular provides that:

"For the purpose of determining the real question in controversy between the parties, or of correcting any defect or error in any proceedings, the court may either of its own motion or on the application of any party order any document to be amended in such manner as it directs and on such terms as to costs or otherwise as are just."

[15]The rationale for amendment of pleadings need not be belaboured; it is so that the Court can then effectively and effectually determine the issues in controversy between the parties to the suit; and therefore should be freely allowed, especially if made before the commencement of the hearing. This principle was well explained in the case of Eastern Bakery vs. Castelino [1958] EA 461thus:

"...amendment to pleadings sought before the hearing should be freely allowed, if they can be made without injustice to the other side, and that there is no injustice if the other side can be compensated by costs.."

[16]The Court has had occasion to consider the question of the joinder of the Defendants herein and pronounced itself on 18 June 2015. Here is what the Court had to say:

"...as striking out the Defendants from this suit will leave the plaint bare and non-existent, they shall not be struck out at this stage...This decision has been informed by the provisions of Order 1 Rule 9 of the Civil Procedure Rules that provides that no suit shall be defeated by reason of misjoinder or non-joinder of parties and Section 1B(d), Civil Procedure [Act] that mandates the court in furthering the overriding objectives, to handle matters in a timely and affordable manner. Striking out the suit when there is an alternative way of addressing the misjoinder or non-joinder of parties will only increase costs as the Plaintiff paid hefty court filing fees. The Plaintiff is therefore hereby directed to make the necessary application to enjoin the proper defendants in the suit herein..."

[17]There is therefore no gainsaying that this application is a in every sense a corollary of the Ruling of 18 June 2015, and therefore is properly before the Court for consideration. Indeed the parties were in agreement as to the aptness of the application. What they differ on is whether the proposed Defendant, who is currently the 5th Defendant, ought to remain as the only defendant herein. In this regard, the Plaintiff took the view that the Court Order, in effect, directed it to carry out due diligence and ascertain the 5th Defendant's capacity to sue or be sued and to make appropriate changes to the Plaint. The Defendants on the other hand, were of the view that the Court found that all the 5 Defendants had been wrongly impleaded herein and that the Plaintiff was therefore required to ascertain the correct defendant and bring that defendant on board. Thus, the question is what exactly did the Court say?

[18]At Paragraphs 34 to 39 of the Ruling the Court was of the view that whereas it may well have been the case that the 1st, 2nd, 3rd and 4th Defendants, as officials of the Church, had the capacity to sue or be sued, there was no evidence to support that assertion; and that it could not ignore the fact that parties who are enjoined in any suit must be legal persons with capacity to sue or to be sued. In respect of the 5th Defendant, the Court held that:

"...it was not clear and there was nothing to show that they were duly registered and therefore capable to sue and to be sued or if indeed there was a Board of Trustees. There was also no evidence to show that the said Trustees were the officials who were envisaged within the meaning of the Societies Act. The Plaintiff was well aware of the Defendants' contentions that the 5th Defendant had no capacity to sue and to be sued. It was incumbent upon it to have submitted evidence to demonstrate that there is a Board of Trustees or that the Trustees, as named, had capacity to sue and to be sued. In the absence of such proof, the court could not make an assumption that such Trustees had been registered as a body corporate and had capacity of suing and being sued. Nothing would have been easier than for the Plaintiff to have at least provided proof to demonstrate that all the Defendants had capacity to sue or had capacity to be sued and in particular, as regards the 5th Defendant.

[19]Clearly therefore, far from making a definitive finding of misjoinder, the Court stressed the importance of certainty that it had brought on board the correct parties. This is even more explicit at Paragraph 45 of the Ruling in which it is stated thus:

"It did appear to the court that the Plaintiff was not certain who it could sue and was on a fishing expedition. It had cast its net far and wide in the hope that any of the Defendants could be found liable."

[20]Following the Ruling, the Plaintiff conducted a search at the Registry of Societies with a view of establishing the names of the Trustees of the 1st Defendant; and this too was in compliance with the Courts observation at Paragraph 44 of the Ruling. There is evidence annexed to the Supplementary Affidavit to confirm that the 5th Defendant is registered as a corporate entity capable of suing and being sued. Accordingly, I entertain no doubt that had this evidence been presented before the Court before the Ruling of 18 June 2015 was delivered, it would have found that the 5th Defendant had been properly enjoined herein. Accordingly, I find that the Plaintiff's application dated 15 July 2016 does have merit. The same is hereby allowed and orders granted as prayed in the following terms:

[a]That leave be and is hereby granted to the Plaintiff to enjoin the Evangelical Lutheran Church in Kenya Registered Trustees as the Defendant herein as proposed;

[b]That the 1st, 2nd, 3rd, and 4th Defendants be and are hereby struck out in accordance with the Ruling delivered on 18 June 2015;

[c]That the Plaintiff be and is hereby granted leave to amend their Plaint as set out in the draft Amended Plaint annexed to application and in accordance with this Ruling;

[d]That the Amended Plaint be filed and served within 14 days from the date hereof in accordance with the provisions of Order 7 Rules 1 and 17 of the Civil Procedure Rules

[e]That the costs of the application be in the cause.

[21]This Ruling is also in respect of the Defendants' application dated 23 March 2017, which was filed under Article 159(2)(a) and(d) of the Constitution of Kenya, Sections 1A, 1Band 3Aof the Civil Procedure Act, Chapter 21 of the Laws of Kenya, Order 42 Rule 6 of the Civil Procedure Rules, 2010 and all other enabling provisions of the law. The application seeks for orders that:

[a]Spent

[b]Further proceedings in this suit be stayed pending the hearing and determination of Civil Appeal No. 65 of 2017 now pending before the Court of Appeal at Nairobi.

[c]Spent.

[d]The costs of the application be in the cause.

[e]The Court be pleased to grant any other or further orders as may be deemed fit in the circumstances.

[22]The application was premised on the grounds that, being dissatisfied with the Ruling and decision of this Court that was delivered on 7 October 2016, the Defendants have appealed the said Ruling and filed Civil Appeal No. 65 of 2017 at the Court of Appeal; and that the said Appeal is arguable and has overwhelming chances of success. It was further contended that there is the risk that, if further proceedings in this suit are not stayed then the said appeal shall be rendered nugatory. These grounds were expounded on in the Supporting Affidavit sworn by Mr. George Otieno Ochich as well as the Defendant's written submissions filed on 22 June 2017.

[23]In his written submissions filed in support of the second application, Counsel for the Defendants reiterated the Defendant's position that they are dissatisfied with the Ruling and decision of the Court that was delivered on 7 October 2016; and that consequently, an appeal therefrom has been filed vide Civil Appeal No. 65 of 2017 in the Court of Appeal at Nairobi. In the premises, it was their contention that any continuation of the proceedings herein in the intervening period would be prejudicial to the pending appeal. Counsel further argued that the Defendants have demonstrated the conditions set out in Order 42 Rule 6 of the Civil Procedure Rules and shown that they will suffer substantial loss if the order for stay is not granted as sought; and that the application was brought without unreasonable delay.

[24]Counsel for the Defendants relied on the case of Chris Munga Bichage vs. Richard Nyagaka Tongi & 2 Others [2013] eKLR and Mursal Guleid & 2 Others vs. Daniel Kioko Musau [2016] eKLR to support his submission that the primary consideration in an application for stay of proceedings is that the Court should avoid a situation where the Appellant will be prejudiced and the appeal rendered nugatory if he eventually succeeds. In support of his contention that the appeal is arguable, Counsel restated the grounds of appeal in his submissions and urged that, unless further proceedings herein are stayed, there is a great risk that this suit may proceed to conclusion before the appeal is heard and determined, thus rendering the appeal nugatory.

[25]With regard to substantial loss, it was the submission of Counsel for the Defendants that they risk to suffer loss by reason of delay in enjoying the fruits of their decree should stay of proceedings be declined; and that the only hurdle that is standing between them and the enjoyment of that decree is the said Ruling which they hope will be overturned on appeal. It was further urged that the instant application was filed expeditiously and that a Notice of Appeal was also filed within the 14 day period allowed by the law for the filing of Notice of Appeal. Counsel added that the Defendants are ready and willing to provide any security that the Court may require.

[26]In concluding his submissions, Counsel for the Defendants stated that it is in the interest of justice that further proceedings in this suit be stayed so that the Court of Appeal may accord them an opportunity for the reconsideration of their case. He added that such a stay of proceedings as sought will not prejudice the Plaintiff in any way as the suit will simply be reactivated at the conclusion of the appeal and the Plaintiff will still have its opportunity to prosecute the case as permitted by law.

[27]The application was opposed by the Plaintiff, whose contention ws that the Defendants have not demonstrated the conditions set out in Order 42 Rule 6(2) of the Civil Procedure Rules. In the Replying Affidavit sworn on 19 May 2017 by Mr. Robert Muriuki, Counsel for the Plaintiff, it was averred that the Defendants had failed to show that they stand to suffer irreparable damage or prejudice should the proceedings before the Court continue; and that in any case should they succeed on appeal, they stand to be compensated in costs. The Plaintiff posited that it would be in the interest of both parties that this matter be heard and determined with finality in the spirit of Article 159 of the Constitution and Sections 1A and 1B of the Civil Procedure Act.

[28]In the written submissions filed herein by the Plaintiff on 7 July 2017, these grounds were amplified and addressed seriatim. According to the Plaintiff, the argument that the Defendants have a decree in their favour is such a weak argument to amount to a demonstration of substantial loss, adding that even if stay were to be granted, the Defendants would have to await the determination of the Court of Appeal to enforce that Decree. The Court was thus urged to protect the interests of both the Plaintiff and the Defendants by allowing the speedy conclusion of this suit in accordance with the dictates of Article 159 of the Constitution; and that should the Court be inclined to grant stay as sought, the Defendant should be required to deposit security in the sum claimed of Kshs. 53,198,263/=. According to Counsel for the Plaintiff such an order would not only give the Plaintiff the confidence in the pending proceedings, but also guarantee the speedy prosecution of the appeal by the Defendants.

[29]Needless to state that under Order 42 Rule 6 of the Civil Procedure Rules, it is permissible for a party to apply for stay of proceedings pending the hearing and determination of an interlocutory appeal. Sub-rule 1 thereof provides that:

"No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order..."

Thus, the only conditions such an applicant would be required to satisfy as set out in Rule 6(2) of Order 42aforementioned are:

[a] that substantial loss may result to the applicant unless the order is made;

[b] that the application has been made without unreasonable delay, and that such security as the Court may order, has been provided.

[30]Accordingly, although the court has the discretion to grant stay orders on terms, the interests of justice require that the discretion be exercised judiciously and within the aforesaid parameters. The rationale for the circumspection has been considered in various cases such as Machira T/A Machira & Co. Advocates vs East African Standard (No. 2) [2002] KLR 63,in which it was held that:

"The ordinary principle is that a successful party is entitled to the fruits of his judgment or any decision of the court giving him success at any stage. That is trite knowledge and is one of the fundamental procedural values which is acknowledged and normally must be put into effect by the way applications for stay of further proceedings or execution, pending appeal are handled. In the application of that ordinary principle, the court must have its sight firmly fixed on upholding the overriding objective of the rules of procedure for handling civil cases in courts, which is to do justice in accordance with the law and to prevent abuse of the process of the court."

[31] Accordingly, in determining what the interests of justice require in the instant application, it is imperative to balance the interests of the parties as was proposed by Counsel for the Plaintiff. In this respect, I find instructive the expressions of Ringera, J in Global Tours & Travels Limited WC No. 43 of 2000,which I entirely agree with, that:

"...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 on whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously."

[32]The Defendant has endeavoured to demonstrate that they have an arguable appeal and while it is not in my place to determine whether the appeal has good chances of success, it is indubitable that an appeal has been filed being Nairobi Civil Appeal No. 65 of 2017and that the Record of Appeal has been duly admitted by the Court of Appeal. It is equally manifest that there was a delay in the typing of proceedings for which a Certificate of Delay was supplied by the Deputy Registrar dated 14 February 2017. It is understandable that the application was not filed until 23 March 2017, there being no dispute that the Notice of Appeal was otherwise timeously filed. The Defendants, in addition expressed the willingness to provide such security as the Court may deem fit to order.

[33]Consequently, at paragraph 21 of the Plaintiff's written submissions dated 7 July 2017, it was stated thus:

"We humbly ask that the Court does direct that the Defendants/Applicants to deposit the claimed amount of Kshs. 53,198,263/= with the Court. The said amount would guarantee the due performance of the Court decision dated 7th October, 2016 on the part of the Defendants/Applicants. Not only would this security give the Plaintiff/Respondent confidence in the judicial proceedings, it would guarantee the Defendants/Applicants would eagerly prosecute their appeal case without unnecessary delay tactics or ploys to defeat the expeditious conclusion of the same."

[34]Granted the foregoing, and upon balancing the competing interests of the parties herein, I would allow the Defendants application for stay dated 23 March 2017 on the following terms:

[a]Upon compliance with the orders issued herein in respect of the Plaintiff's application dated 15 July 2015 to their logical conclusion, up to close of pleadings as envisaged by Order 7 Rules 1 and 17 of the Civil Procedure Rules, there be stay of proceedings herein pending the hearing and determination of Nairobi Civil Appeal No. 65 of 2017.

[b]The Defendants to provide security in the sum of Kshs. 26,599,131. 50, being half of the sum claimed herein, which sum shall be deposited in an interest earning account in the joint names of Counsel for the parties within 45 days from the date hereof, failing which the order of stay as per [a] above shall automatically lapse, and the Plaintiff will then be at liberty to proceed with the prosecution of this case.

[c]Costs of the application to be in the cause.

Orders accordingly.

SIGNED, DATED AND DELIVERED AT NAIROBI THIS 6TH DAY OF OCTOBER, 2017

OLGA SEWE

JUDGE