Dr. Wilfrida Itolondo & 4 Others v The President & 7 Others [2014] KECA 472 (KLR)

INTHE COURT  OF APPEAL AT NAIROBI

CORAM: MURGOR, J.A. (IN CHAMBERS)

CIVIL APPLICATION NO. NAI. 122 OF 2014

BETWEEN

DR. WILFRIDA ITOLONDO& 4 OTHERS……..APPLICANTS

AND

THE PRESIDENT & 7 OTHERS………………..RESPONDENTS

(Application for stay of execution pending an appeal against   the judgment of  the  High  court of  Kenya  at Nairobi  (Odunga,  J) dated  21st  March, 2014

in

H.C.JR. C. NO. 232OF 2012)

****************

R U L I N G

On  the 5th   June  2014, I  declined to  certify this   matter as urgent having taken the  view  that there were  no  urgent circumstances to warrant the  issuance of a certificate of urgency.

Briefly the facts are that by a Notice of Motion dated 24 th July 2012  the applicants herein sought for orders of mandamus compelling the  respondent to institute a  process for the appointment of and  to appoint the  Vice Chancellor of Kenyatta University; and  an  Order  of Prohibition  to prohibit the Prof. Olive

Mwihaki Mugenda from  acting or  purporting to act  as  the Vice Chancellor  of  the   Kenyatta  University  unless   appointed/ reappointed by law.

On 21st March  2014, the High Court dismissed the applicant’s suit with costs  to the  respondents.

The  applicants were   aggrieved with  judgment of the  High Court  and   filed   Notice of  Appeal dated  19th   May   2014.    The applicant also filed  Notice of Motion dated 3rd   June 2014, together with an affidavit sworn  by Dr. Wilfrida Itolondoand a Certificate of Urgency of the  same  date, which I declined to certify as urgent.

In  their urgency application, the  applicants contended that the 3rd   and  4th  respondents had  served upon  them with a Bill  of Costs for an amount of Kshs. 2,245,108/-, and were  also expecting the other respondents to also  file  their Bills  of Cost  at any  time; that the  Bill of Costs was due to be taxed on 10th June 2014, and if taxed, they were  apprehensive that if the application for stay  of execution was  not certified urgent, the  order for costs  would be executed to their detriment.

The  application was  referred back  to me  under rule  55of this  Court’s  rules   for  hearing inter  partes. Dr.  Itolondo,who

submitted on  behalf of the other applicants submitted that the case  was  of great public interest. He complained that the 3rd,  4th and  6th  respondents had  served the  applicants with Bills  of Costs that were  due  for taxation on 10th  July, 2014, and  that the actions of the 3rd,  4th    and  6th  respondents was  in bad  faith and  intended to frustrate, debilitate and  scare  off  the  applicants from pursuing social  and  public rights as  guaranteed by  the Constitution; that the suit was not frivolous, it was arguable and  had  a high  chance of success.

On  her  part, Dr.Elena   Korirthe  2nd    applicant submitted that the  Constitution was violated by the  re-appointment of the 6 th respondent after her  five  (5)  year  contract had  expired on  31st March  2011; that being public spirited, the  applicants had  filed this  suit  in  the   interest  of social   justice  and   the   fundamental rights, as set out in the  new Constitution 2010. Dr. Korir  submitted that it was the  court’s discretion to award costs,  but, the court did not take into account the  public interest nature of the  suit, and that being public servants they could  ill afford to pay these  costs.

Mr     Wetangulalearned     counsel     for     the     3rd       and    4th respondents on his part submitted that, the  applicants had  filed  a

Certificate of Urgency dated 4th   June  2014  which the  Court  had declined to  certify as urgent. No new  reasons were  advanced to warrant the   matter  being certified urgent. Counsel   was  of the view  that, taxation of costs  did  not prohibit the  applicants from pursuing public interest matters, and  they are  entitled to  pursue their  appeal  as   they  deem    fit.  Counsel    concluded  that  the applicants had not demonstrated what prejudice they would suffer if the  costs  were  taxed.

Mr. Mwihurilearned counsel for the 6th  respondent on  his part stated that, he  had  filed   a  replying affidavit sworn   by  the Prof.Olive   Mwihaki  Mugenda.  Counsel   contended that  the applicants have  not given any  reasons for issuance of an urgency certificate. The  applicants have  not shown  that the respondents are  unable to refund the  taxed costs  in the event their appeal is successful.  Counsel   concluded that  costs   cannot  be  stayed  as

they can be refunded and  cited  KENYA OIL COMPANY LIMITED

VS. JAYANTILAL DHARAMSHI GOSRANI  [2010] eKLR in support of this  contention.

Ms.Shamallahlearned     counsel    for    the    7th   respondent, associated herself with submissions of counsel for the  3 rd   and  4th

respondents,   and   submitted  that  no   new    facts  have    been presented to  the court on the reasons for issuance of an urgency certificate; that after taxation, execution is not immediate carried out, and therefore the applicants will  not suffer any prejudice.

I have  considered the  pleadings and  heard the  rival submissions of counsel, and  remain unconvinced on the  question of urgency of this  fiercely contested application. The  applicants, apprehension is  that the  taxation of the 3rd    and  4th  respondents Bill  of Costs  is due  to be  heard on  10th  July  2014, and  that once the costs  are awarded, they will  be immediately required to settle the costs.   Their  concern is that they are public servants who  can ill afford to pay  the  costs  of the suit.  They consider that since  the suit was  filed   in  the  public interest, the  court should not have awarded any costs to the respondents.  On the other hand,  the respondents take the  view  that the  applicants have  not advanced any  sufficient reasons to  warrant the  issuance of a certificate of urgency. The  Bill  of Costs  have   yet to  be  taxed, and  therefore execution, if at all, is not imminent.

I  agree   with the   respondents that  no  incidents  or circumstances  have   been   advanced  to   by   the  applicants to warrant the  issuance of an urgency certificate. The application is speculative in nature, as at the  time of the inter partes hearing of the urgency application, the   Bill  of Costs  had  yet to be  taxed before a competent court, which I have  no doubt will  have  an opportunity to  ably  address the  public interest aspect of the  suit as advanced by the  applicants. Since  the  Bill  of costs  has not yet to been  taxed, I consider that there is no imminent or immediate threat of execution or prejudice to the  appellants.

For these  reasons, I decline to alter my  decision made  on 5 th June  2014. The  costs  of this application for urgency to be  in  the main  application.

Datedand  delivered at Nairobi this  11thday  of JULY, 2014.

A.K.MURGOR

…………………………..JUDGE OF APPEAL

I certify that this  is a

true copy  of the  original

DEPUTY REGISTRAR