[2020] KEHC 1016 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

MISC. APPLICATION NO. 171 OF 2020

TRIDENT INSURANCE COMPANY LIMITED............................................APPLICANT/RESPONDENT

-VERSUS-

ACCOUNTING OFFICER COUNTYASSEMBLY OF NYAMIRA.....1ST RESPONDENT/APPLICANT

THE AG. CLERK, COUNTY ASSEMBLY OF NYAMIRA...................2ND RESPONDENT/APPLICANT

RULING

1) On 6th November 2020, this court delivered a ruling in which itconvicted the 1stand 2ndrespondents for contempt for disobeying the decision of the Public Administrative Review Board of 11thDecember 2019. The respondents were ordered to award the subject tender to the lowest evaluated bidder and to complete the procurement process within 14 days from the date of the decision.

2) This court invited the respondents to submit on mitigation toenable this court to mete out the appropriate sentence. Therespondents being aggrieved filed a notice of appeal to challenge the order of conviction. They also took out the motion dated 18thNovember 2020, in which they sought for the following orders:

i. THAT the instant application be certified urgent and be heard ex parte in the first instance.

ii. THAT pending the hearing and final determination of this application interpartes or until further orders, and order be and is hereby issued directing for a stay of proceedings in this matter.

iii. THAT pending the hearing and final determination of an intended appeal against the decision of this court issued on 6/11/20 or until further orders, an order be and is hereby issued directing for a stay of further proceedings in this matter.

iv. THAT the cost of this application be provided for.

3) The motion is supported by the affidavit of Duke Onyari. Whenserved with the motion, the applicant/respondent filed grounds of opposition to resist the application. Learned counsels were invited to make oral submissions.

4) Though the parties were invited to submit on facts inmitigation, before sentencing, I think it is important to first determine the application for stay of proceedings filed by the respondents. I have considered the grounds stated on the motion plus the facts deponed in the supporting affidavit together with the grounds of opposition. I have further considered the rival oral submissions made by learned counsels.

5) It is the submission of Mr. Siagi, learned advocate for therespondents/applicants that the applicants have filed a notice of appeal to challenge this court’s order to convict them for contempt and therefore unless the order for stay is granted they may be sentenced thus jeopardizing the applicants’ personal liberty and freedom.

6) The learned advocate pointed out that the sentence will involvestringent fines and penalties to be imposed under the Public Procurement and Disposal of Assets Act 2015. The applicants further argued that the findings of the court made on 6/11/2020 seeks to enforce an expenditure in the financial year 2019-2020 which is against the provisions of Nyamira County Appropriation Act which prohibits utilization of funds from a past financial budget year being 2019-2020 but the applicable year is 2020/2021 thus creating a legal and administrative quagmire besides exposing the applicants to criminal liability if the applicants were to implement the decision of the Public Procurement Administrative Review Board.

7) The applicants are of the view that they have always beenwilling to comply with the Board’s decision but it is impossible to comply because of the lapse of the financial year applicable to the tender. The learned advocate further pointed out that the 2ndrespondent was improperly enjoined to these proceedings. It is stated that the respondents/applicants stand to be condemned to bear personal liability in a matter that concerns the County Government.

8) Mr. Ong’anda, learned advocate for the applicant/respondenturged this court to dismiss the respondents/applicants motion for lacking in merit and proceed to sentence them for contempt. The learned advocate pointed out that the applicants have not put forward sufficient reasons and grounds to enable this court issue an order of stay of proceedings. Mr. Ong’anda pointed out that the respondents/applicants have used the motion to introduce new issues which did not arise during the hearing of the summons dated 30thApril 2020.

9) After a careful consideration of the material placed before thiscourt and the rival submissions, it is not in dispute that on 6thNovember 2020 this court convicted the respondents for contempt for willfully disobeying the orders issued by the Public Procurement Administrative Review Board issued on 11thDecember 2019 vide Application no. 134 of 2019. What is pending is the sentence to be meted out upon taking into account the facts in mitigation submitted by the parties.

10) This court has already recorded the facts in mitigation.However, this court has been beseeched to stay further proceedings until the appeal filed against this court’s order of conviction is heard and determined by the Court of Appeal. In my humble view if proceedings in this matter are not stayed it will mean that this court shall proceed to mete out the sentence as against the respondents/applicants before their appeal is heard and determined.

11) With respect, I am persuaded by the respondents’ assertion thatthey are likely to suffer great loss and prejudice if these proceedings are not stayed pending appeal in view of the stringent fines and penalties prescribed under the Public Procurement and Disposal of Assets Act 2015 which the respondents /applicants may be required to pay from their own pockets and or be personally put in jail. I am convinced that the respondents/ applicants should be given a chance to pursue the appeal after which the issue of sentencing can be dealt with.

12) In the end, the motion dated 18th November 2020 is found to bewith merit. Consequently, an order for stay of further proceedings in this matter is issued pending the hearing and determination of the intended appeal. Costs of the motion to abide the outcome of the appeal. In order to avoid this matter being procrastinated further or forgotten, I hereby direct that the same be mentioned before this court on 29. 03. 2021

Dated, Signed and Delivered online via Microsoft Teams at Nairobi this 11th day of December, 2020.

...........................

J. K. SERGON

JUDGE

In the presence of:

.......................................for the Applicant

....................................for the Respondent