Ezekiel Otieno (suing On His Own Behalf and On Behalf of The General Public) v Funds Account Manager, Mathare National Constituency Development Fund & 2 others
The bottom line
#Kenya's Court of Appeal refused to halt Mathare CDF tender payments because the projects were already finished, confirming completed contracts leave nothing to stay.
What this practically means
#Executive summary
#Key legal issues
#Arguable appeal
The applicant did not demonstrate an arguable appeal; the trial court's view that the Public Procurement and Assets Disposal Act dispute-resolution mechanism ought to have been exhausted appears to have merit
The respondents contended the trial court lacked jurisdiction because the Public Procurement and Assets Disposal Act provides dispute-resolution mechanisms. The court found this argument to have merit but deliberately refrained from deeper comment to avoid embarrassing the bench hearing the substantive appeal, concluding the arguability threshold was not met.
Nugatory-principle / order capable of being stayed
The projects were completed and payments made, so there was nothing capable of being stayed and the appeal could not be rendered nugatory
The respondents' uncontradicted position was that tenders were awarded, construction works (including classroom construction) were completed with certificates of completion issued, and tenderers were paid. The court therefore concluded that, the horse having bolted, the twin conditions precedent for a Rule 5(2)(b) application had not been satisfied.
Whether failure to file a Notice of Appeal defeated the application
The court declined to determine the Notice of Appeal issue since the twin principles had already failed
The 3rd respondent argued no Notice of Appeal had been filed. The court noted that its jurisdiction on a 5(2)(b) application arises upon filing of a Notice of Appeal, but found it unnecessary to belabour the point because the twin conditions precedent were not satisfied in any event.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy the twin principles of an arguable appeal and that the appeal will be rendered nugatory absent stay; both are conditions precedent
- This Court's jurisdiction on a Rule 5(2)(b) application arises upon filing of a Notice of Appeal
- Where tender works have been completed and payment made, there is nothing capable of being stayed and stay will be refused
Court orders
#- 1.The motion dated April 8, 2022 is dismissed with costs
- On appeal from
- High Court
- Constitutional Petition and Notice of Motion dated January 24, 2022
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (application for stay of execution/injunction pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ezekiel Otieno (suing On His Own Behalf and On Behalf of The General Public) v Funds Account Manager, Mathare National Constituency Development Fund & 2 others", Case Analysis (2023). Civil Application No. E092 of 2022 (Motion dated April 8, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/399/eng@2023-03-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.