Nairobi City Water & Sewerage Company Ltd v Capture Solutions Ltd & 3 others

3. In support of the instant Motion, the applicant relied on the adavit sworn by Patrick Murithi, the applicant’s legal ocer, on 26th November 2025. According to the deponent, in dismissing the application, Majanja, J. did not consider the fact that the issues before the court outweighed the delay in ling an appeal, hence the learned Judge did not exercise his discretion judiciously, leading to a miscarriage of justice. According to the applicant, its appeal has high chances of success. 4. As a result of the wrong exercise of discretion, it was deposed: that the applicant is now left exposed to execution which would render all the proceedings in this Court and the applicant’s quest for justice otiose and nugatory; that the applicant, being a public company and an essential services provider involved in the provision of water and sewerage services within Nairobi and its environs, any disruption of its services will inconvenience millions of residents; and that, on the other hand, no prejudice will be occasioned to the respondents that cannot be assuaged by costs. 5. The applicant further explained: that prior to the dismissal of its application on 14th December 2020, the High Court had stayed execution of the nal award; that following the decision of 14th December 2020, the respondent obtained warrants of attachment and a proclamation and served the same upon the applicant; that the applicant then led an application for stay of execution in Civil Application No. E406 of 2020. Similarly, it sought stay of execution in High Court Misc. Application No. 679 of 2020 which, when it came up for ex parte hearing on 22nd December 2020, was allowed on condition that the applicant deposits Kshs 10,000,000 in court, a condition which, according to the applicant, was complied with; that on 19th March 2021, when High Court Misc. Application No. 679 of 2020 came up for inter partes hearing, the 3rd respondent undertook not to proceed with execution pending the hearing and determination of this appeal, and the execution was halted; that on 18th March 2022 when Civil Application No. E406 of 2020 came up before this Court, the 3rd respondent once more gave an undertaking that the 1st respondent would not execute the award during the pendency of this appeal; that relying on that undertaking, the application for stay before this Court was withdrawn; and that the application for stay of execution in High Court Misc. Application No. 679 of 2020 was apparently dismissed on 24th November 2025 by Visram, J. on the strength of the respondent’s submissions that the applicant had withdrawn a similar application before this Court 6. According to the applicant: in a complete departure from the undertaking, the 1st respondent, acting on instructions of its director, the 2nd respondent, appointed the 4th respondent to proceed with execution and the applicant’s assets were proclaimed on 5th April 2024; the 4th respondent, feigning ignorance of the proceedings before this Court, ignored all demands to address the issue of reneging on the undertaking while the 1st and 2nd respondents disavowed the undertaking; however, on 18th March 2025, during the hearing of an application led by the 3rd respondent on behalf of the 1st respondent seeking to strike out this appeal, the 3rd and 4th respondents appeared together for the 1st respondent while the 2nd respondent was in attendance; the joint appearance, despite feigning ignorance of each other’s pursuits, betrayed the fact that the respondents were acting together to circumvent the undertaking by the 3rd respondent; on 18th March 2025, the 3rd and 4th respondents, faced with questions about how they had approached the Court, withdrew the application. 7. In response, the 1st and 2nd respondent relied on the replying adavit sworn by Lorenzo Boncompangni, the 2nd respondent and a director of the 1st respondent, on 7th December 2025 in which he averred: that the application is a non- starter, vexatious, contemptuous, res-judicata and a classic example of abuse of court process; that although the application is disguised as an application seeking stay of execution pending hearing and determination of the appeal, it is in actual sense an appeal from the decision of Visram, J. of 24th November 2025 in Nairobi High Court Misc. Application No. 679 of 2020 that dismissed the applicant’s application for stay of execution of the decree issued on 27th https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1691/eng@2026-09-25 2

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August 2020; and that the applicant has also concealed from this Court the fact that prior to ling this application, it had led in the High Court an application dated 24th November 2025 seeking a replica of the orders they now seek, in a classic case of forum shopping, in a bid to escape satisfying a legitimate decree. 8. The deponent further deposed that the applicant has led a total of ve (5) applications in this Court and in the High Court seeking stay of execution of the said decree, yet there is neither an appeal nor an application for review against the said decree, hence the application herein is res-judicata; that although the applicant alleges contempt of some orders, the orders said to be violated are not demonstrated, and that there have never been orders of stay of execution in this appeal or in any other court in respect of the matter at hand; that the inclusion of the 3rd respondent/intended contemnor, M/s Gitonga Majau Maitethia, the applicant’s former advocates in this application, is a diversionary tactic meant to mislead this Court as the said counsel has no role whatsoever in the matter at hand. 9. According to the deponent, the purported undertaking given by the 3rd respondent not to execute the decree in favour of the 1st respondent is not plausible and cannot be taken to be an order of stay of execution in this appeal due to the reasons that the 1st respondent had neither extended such an undertaking to the applicant nor instructed its former advocate to give such an undertaking. The 1st respondent was never informed or notied of such an undertaking by its former counsel, the 3rd respondent, who eventually cut all forms of communication with the 1st respondent and the deponent since January 2022, forcing him to eventually instruct the advocates currently on record. In his view, even if such an undertaking was made, it could only last the life of Court of Appeal Civil Application No. E406 of 2020 which was withdrawn on 18th January 2022 and Court of Appeal Civil Application No. E230 of 2021 which was dismissed on 18th March 2022 by this Court. According to the deponent, the issue of execution of the decree by the 1st respondent was never a live issue during the proceedings concerning the two applications. As for the conditional stay of execution granted by Majanja, J at the High Court on 19th March 2021, it was deposed that its period lapsed a long time ago, having been extended once for a period of 30 days on 17th February 2021, pending the appearance in Court of Appeal Civil Application No 406 of 2020. The said conditional deposit of Kshs. 10,000,000/= in court, it was averred, was never meant to be for stay of execution pending hearing and determination of this appeal. 10. The deponent disclosed that Civil Application No. E136 of 2022 (Nairobi City Water and Sewerage Company Limited versus Capture Solutions Limited) in which the applicant sought extension of time to le an application for leave to appeal the decision of the High Court of 27th August 2020, was also dismissed by this Court. The subsequent application in the High Court dated 30th September 2020 seeking an extension of time to le an appeal from the nal arbitral award and stay of execution was dismissed vide a ruling delivered on 14th December 2020. The deponent asserted that all these applications are a clear testimony that the applicant is in a serious venture of abuse of court process and incessant forum shopping. According to him, the appeal cannot be the basis for stay of execution of the decree issued in the High Court for reason that the entirety of the appeal herein seeks to rewind back the wheels of justice under a presumption that the High Court can be allowed to sit on own appeal disguised as an appeal from the decision of an Arbitrator. In his view, by opposing recognition of the arbitration award and not appealing the same, the applicant is estopped from going back to the pre-recognition proceedings to seek an appeal, its only recourse being in appealing the decree of the High Court which avenue is now closed, courtesy of the various pronouncements of this Court in the various applications by the applicant. He concluded that the applicant is keen to frustrate the execution of a legitimate decree by all means, yet the decree is itself not being challenged in any court. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1691/eng@2026-09-25 3

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11. The 4th respondent, Andrew Muturi, an advocate of the High Court practising in the rm name of Muturi Andrew & Co. Advocates, swore a replying adavit on 7th December 2025. It was his position: that the application dated 26th November 2025 was vexatious, scandalous, incompetent and a regurgitation of Nairobi High Court Misc. Application Number 679 of 2020 - Capture Solutions Ltd vs Nairobi Water and Sewerage Company Ltd; that although he was named as a respondent/ contemnor, not a single court order was indicated to have been violated by the 1st and 2nd respondents; that the applicant seemed to have proceeded under a mistaken belief that there was a challenge against the decree issued in favour of the 1st respondent by Majanja, J. on 27th August 2020 which was not the case as all the applications to set aside or appeal against the said decree had been dismissed by this Court and in the High Court; that the substantive appeal does not in any way challenge the decree of Majanja, J of 27th August 2020 and therefore there cannot be a stay of execution of that decree; and that it is therefore a misnomer to purport to seek orders of stay of a decree that is not subject of an appeal. 12. The deponent added: that when he got instructions from the 1st respondent to take up this matter from its previous counsel, M/s Majau Maitethia & Company Advocates on 18th April, 2024, he carefully perused the entire le and did not come across any orders of stay of execution of the decree issued on 27th August 2020; that the applicant has never brought to his attention any order of stay of execution of the decree issued on 27th August 2020 and as such, it is mischievous for him to be cited for contempt of non-existent orders; that even as the applicant led this application, it simultaneously led another application dated 24th November 2025 at the High Court which only came to his attention on the Case Tracking System (CTS) alert notifying him of a mention date slated for 12th April 2026; that the multiple applications demonstrate the extent to which the applicant is willing to go to scuttle the conclusion of this matter which has been in the court corridors for ve (5) years, yet it is in the realm of arbitration meant for fast and expeditious resolution of disputes; and that since the entire application is frivolous, it is ripe for dismissal with costs. 13. We heard this application on the Court’s virtual platform on 4th February 2026 on which day learned counsel, Mr Marete Kithinji, appeared for the applicant and learned counsel, Mr Moses Tumu held brief for Mr Muturi for the 1st, 2nd and 4th respondents. Both counsel relied on their written submissions which they briey highlighted. 14. On behalf of the applicant, it was submitted that the appeal arises from the refusal by the Judge of the High Court to extend time to le an appeal to that court from the underlying arbitral award; that in doing so, the learned Judge did not exercise his discretion correctly in keeping with the parameters spelt out in the Supreme Court decision of Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR; that absent stay, the respondents will be at liberty to execute the award, despite it being challenged by the applicant; that before this Court dierently constituted, learned counsel informed the Court that the respondent had undertaken not to proceed with execution pending the hearing and determination of the underlying appeal; that a party or person who makes a statement in court proceedings knowing the same to be false commits an act of perjury and amounts to an abuse of the court process; that a party who is aware of matters raised in court and proceeds to disregard and disobey the same is in contempt of court; and that the respondents were well aware of the said undertaking issued by the 3rd respondent and, by disregarding the same, are in contempt as held in Shimmers Plaza v National Bank of Kenya [2015] KECA 945. 15. On behalf of the 1st, 2nd and 4th respondents, it was submitted that the application is incompetent in as much as it seeks orders of stay of execution of the decree issued by Majanja, J on 27th August 2020 which is the only decree between the parties herein that is capable of being stayed. Citing this Court’s decision in Equity Bank Ltd v West Link MBO Ltd [2013] eKLR, it was submitted that the stay sought https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1691/eng@2026-09-25 4

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ought not to be granted since the decree whose execution is sought to be stayed has not been challenged. It was further submitted that the appeal does not meet the ingredients to satisfy this court to grant orders of stay of execution and in this regard, the decisions of this Court in the case of Stanley Kangethe Kinyanjui v Tony Ketter and 5 Others [2013] KECA 378 KLR (Kangethe Case) and Ruben & 9 others v Nderitu & Another (1989) KLR 459 were cited in highlighting the conditions that are considered in exercising this Court’s jurisdiction under rule 5(2)(b) of the Court’s Rules. We were urged to nd, on the authority of the case of Virgin Atlantic Airways Limited v Zodiac Seats Limited (UKSC) 46, that there would be no end to litigation in arbitral matters if the applicant’s position was countenanced. In order to avoid the obvious absurdity, the respondent submitted that the doctrine of merger sets in once an arbitral award is recognized. 16. On whether the success of the appeal will be rendered nugatory absent stay, the respondents cited the Kangethe Case (supra) and submitted that whether the prayers sought in the appeal is allowed or not, the result would be an academic exercise that cannot be rendered nugatory in whatever circumstance since the appeal does not challenge the decree of 27th August 2020. As such, the appeal cannot be rendered nugatory. We were urged to dismiss the application with costs. 17. We have considered the application, the adavits, both in support of and in opposition to the application as well as the submissions made. In order to place the dispute in perspective, it is necessary that a brief summary of the history of this dispute be set out. The applicant and the 1st respondent entered into two agreements dated 31st August 2017 in respect of two contracts, the GIS Enabled System Contract and the Workforce Management System Contract. Following the applicant’s contention that the 1st respondent failed to perform its part of the contract, the matter was referred to arbitration pursuant to the arbitration clause in the contract. In his award dated 27th December 2019, the arbitrator, Prof Ike Ehiribe, declared that the applicant was in breach of the two contracts and directed it to pay the 1st respondent Kshs 57,729,720 with interest and costs of Kshs 3,664,725.80. No appeal was led against the decision despite the applicant’s contention that it was entitled to appeal the decision to the High Court within 30 days. 18. In the meantime, the respondent led an application for the recognition and enforcement of the arbitral award vide Civil Misc. Application No. E679 of 2020 which was allowed on 27th August 2020. As we have stated above, an application for leave to appeal out of time was dismissed, by Majanja, J. on 14th December 2020 on the ground that it was prematurely made as leave to appeal had not been sought and granted. Due to its failure to le an appeal against the said decision within time, the applicant sought extension of time vide Civil Application No E307 of 2020 on 23rd April 2021. The application was however dismissed on 23rd April 2021 by a single Judge of this Court (Ouko, (P) as he then was), on the grounds that the explanation for the delay was implausible and that it was doubtful whether the appeal lies as of right from matters arising from arbitral proceedings. 19. Subsequently, the applicant herein led an omnibus application seeking, inter alia: leave to appeal against the decision of Majanja, J made on 27th August 2020 in Misc. Civil Application No. E679 of 2020 allowing the application dated 18th July 2020 that sought for the recognition and enforcement of an arbitral award dated 27th December 2019. It also sought an order of stay of execution of the arbitral award pending the lodgement, hearing and determination of the intended appeal against the decision given on 27th August 2020 in Misc. Civil Application No. E679 of 2020 recognising the award. That application was dismissed by this Court on 4th March 2022, this Court (M’Inoti, Mohammed & Kantai, JJ.A.). The Court found that the application for leave to appeal was made out of time and no time was extended to make the same. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1691/eng@2026-09-25 5

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20. Undeterred by the dismissals of its application, the applicant led Civil Application No. Nai 136 of 2022 seeking, inter alia, extension of time to le an application for leave to appeal. In a ruling delivered on 4th November 2022, a single Judge of this Court (Sichale, J.A.) dismissed the application. Dissatised with that decision, the applicant referred the matter to the full bench for determination. Although as at the time we heard this application, we were informed that the ruling from that reference was pending, we are aware that the pending ruling was delivered on 31st July 2026 by which this Court dismissed the reference. In so doing the Court expressed itself as hereunder: “ The earlier rulings delivered by Ouko, JA (as he then was) and the full bench, properly understood within their procedural context, conclusively addressed the applicant’s inability to obtain appellate intervention arising from the same arbitral award and the same superior court judgment, particularly on account of inordinate delay and failure to meet the threshold for extension of time. The applicant did not challenge those determinations by way of reference or further appellate process. The present application is therefore, in substance, an attempt to reopen matters that were either directly and substantially determined, or which ought properly to have been raised in the earlier proceedings…In the present case, the applicant’s repeated attempts to secure appellate intervention through successive applications founded on the same factual matrix amount to impermissible litigation in instalments. Such conduct undermines the principle of nality of litigation and constitutes an abuse of the process of the Court. In light of the foregoing ndings on res judicata and abuse of process, it is unnecessary to consider the motion under Rule 4 of the Court of Appeal Rules, the same having been fatally compromised by the applicant’s attempt to relitigate matters already conclusively determined by this Court.” 21. We have considered the application, the adavits both in support of and in opposition to the application as well as the submissions made on behalf of the parties as highlighted by their respective learned counsel. Without regurgitating the said submissions, it is clear from the brief history of this litigation as set out above that the applicant has reached a dead end in so far as its attempt to challenge the arbitral award is concerned. Without obtaining leave to appeal, the applicant’s prayers for stay of execution and proceedings are stillborn. A stay of execution is only granted where a party has procedurally intimated that it intends to appeal. As this Court has stated time and again, it is the notice of appeal that confers on this Court the jurisdiction to entertain matters. (See Morris Ngundo v Lucy Joan Nyaki & another [2015] eKLR. Where attempts by an applicant to le a notice of appeal have hit a snag as has happened in this case, the applicant is not entitled to enjoy orders of stay. Accordingly, the prayers seeking orders of stay of execution and proceedings must fail. 22. As regards the prayer seeking to cite the 3rd respondent for perjury and to cite all the respondents for contempt of Court, although the applicant has contended that this Court allowed the withdrawal of the application for stay of execution on the undertaking that there would be no execution, no evidence of such undertaking has been placed before us. Considering the high threshold set by the law for establishing contempt of court and based on the decision in Republic v Mohammed & Another [2018] KESC 51, we are not satised that the respondents wilfully disobeyed this Court’s orders since the record, as presented to us, does not reveal any such undertaking. This is not to say that undertakings by counsel, on behalf of their clients, count for nothing. Where evidence is presented that an advocate who has given an undertaking to Court colludes with his clients to get o the record in order to pave way for another advocate to come on record with a view to feigning ignorance of the undertaking earlier given and going contrary to it, the Court may well deem such conduct as being contemptuous of the Court and may, apart from any other action, invoke the powers conferred under sections 55 and 56 of the Advocates Act. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1691/eng@2026-09-25 6

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23. In conclusion, we nd no merit in this application which we hereby dismiss with costs to the respondents. DATED AND DELIVERED AT NAIROBI THIS 25TH DAY OF SEPTEMBER, 2026. W. KARANJA ……………………………………… JUDGE OF APPEAL MUMBI NGUGI ……………………………………… JUDGE OF APPEAL G. V. ODUNGA ……………………………………… JUDGE OF APPEAL I certify that this is the true copy of the original signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1691/eng@2026-09-25 7

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