Evans Odhiambo Kidero, Susan Akello Mboya, Evans Odhiambo Kidero (Suing on behalf of the Estate of the late Abigael Atieno Kidero), Evans Odhiambo Kidero (Suing on behalf of the Estate of the late Philip Ayot Kidero), Gem Investments, Gem Apartments, Gem Suites, Orro Limited Argenti Limited & Paul Aol v Chief Magistrate of Milimani Law Courts, Ethics and Anti-Corruption Commission, Director of Public Prosecutions, Director of Criminal Investigations & Attorney General [2020] KECA 282 (KLR)

IN THE COURT OF APPEAL

AT NAIROBI

(CORAM: NAMBUYE, MUSINGA & GATEMBU JJ.A.)

CIVIL APPEAL (APPLICATION) NO. 242 OF 2020

BETWEEN

DR. EVANS ODHIAMBO KIDERO...............................................1STAPPLICANT

DR. SUSAN AKELLO MBOYA....................................................2NDAPPLICANT

DR. EVANS ODHIAMBO KIDERO (Suing on behalf of the Estate of the late

ABIGAEL ATIENO KIDERO)........................................................3RDAPPLICANT

DR. EVANS ODHIAMBO KIDERO (Suing on behalf of the Estate of the late

PHILIP AYOT KIDERO)................................................................4THAPPLICANT

GEM INVESTMENTS......................................................................5THAPPLICANT

GEM APARTMENTS.......................................................................6THAPPLICANT

GEM SUITES..................................................................................7THAPPLICANT

ORRO LIMITED............................................................................8THAPPLICANT

ARGENTI LIMITED........................................................................9THAPPLICANT

PAUL AOL...................................................................................10THAPPLICANT

VERSUS

THE CHIEF MAGISTRATE OF

MILIMANI LAW COURTS.......................................................1STRESPONDENT

ETHICS AND ANTI-CORRUPTION COMMISSION............2NDRESPONDENT

DIRECTOR OF PUBLIC PROSECUTIONS...........................3RDRESPONDENT

DIRECTOR OF CRIMINAL INVESTIGATIONS.....................4THRESPONDENT

HON. ATTORNEY GENERAL...................................................5THRESPONDENT

(Being an application for injunction pending the hearing and determination

of the Appeal from the Judgment and Decree of the High Court of Kenya

(Hon. Mumbi Ngugi, J.) dated 4thJune, 2020 inNairobi Petition No. 25 of 2018)

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RULING OF THE COURT

1. UPONperusing the Notice of Motion dated 19th June 2020 by the applicants seeking an order to stay the judgment of Hon. Lady Justice Mumbi Ngugi dated 4th June, 2020 pending hearing and determination of the appeal; an order of temporary injunction restraining the 2nd respondent through any of its agents, officers or investigators from any further execution of the search warrant issued against the 1st Applicant dated  19th September, 2018 pending the hearing and determination of Civil Appeal No. 242 of 2020 Dr. Evans Kidero & Others vs. EACC & Othersalready filed in this Court; an order of injunction restraining the 2nd respondent through any of its agents, officers or investigators from purporting to search, seize and continue to seize the 2nd - 10th Applicants’ properties pending the hearing and determination of Civil Appeal No. 242 of 2020 Dr. Evans Kidero & 7 Others vs. EACC & Others already filed in this Court.; and an order that costs of the application do abide the outcome of this Appeal; and

2. UPONreading the grounds in the body of the application and supporting affidavit of Dr. Evans Odhiambo Kidero together with annexures thereto; and

3. UPONreading the 2nd respondent’s replying affidavit sworn byPaul Mugwetogether with annexures thereto; and

4. UPONappraising the applicant’s and 2nd  respondent’s written submissions dated 25th June, 2020 and 27th June, 2020 respectively in support of their rival positions; and

5. HAVINGconsidered the Memorandum of Appeal already filed in light of the principles that guide this Court in determining applications under Rule 5(2)(b) of this Court’s Rules as summarized in Stanley Kangethe vs. Tony Ketter & Others [2013]eKLR, and which we fully adopt, we are satisfied that the applicants have satisfied the first of the twin principles that guide the court in the exercise of its mandate under the said rule, namely demonstration of existence of an arguable appeal irrespective of its ultimate success and /or otherwise; and

6. HAVINGapplied the same test with regard to the need to satisfy the second prerequisite, namely demonstration that failure to grant the order sought will render the appeal filed nugatory, we do not think that the second prerequisite has been satisfied. The applicant has failed to controvert the 2nd respondent’s averments in their replying affidavit that pending completion of investigations, filing, prosecution, and conclusion of the criminal case(s) against the applicants and the filing of the asset recovery suit, which actions are yet to commence, are unlikely to be concluded before the appeal which is already filed is heard and determined; and

7. HAVINGappreciated that in order to succeed underrule 5(2) (b)of the Court’s Rules both prerequisites must be satisfied; and

8. HAVINGreached the above conclusion, we make orders as follows:

(i) The Notice of Motion dated 19thJune, 2020 is declined.

(ii) Costs of the application to abide the outcome of the appeal. Dated and delivered at Nairobi this 9thday of October, 2020.

R. N. NAMBUYE

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JUDGE OF APPEAL

D. K. MUSINGA

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JUDGE OF APPEAL

S. GATEMBU KAIRU FCIArb

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JUDGE OF APPEAL

I certify that this is a true copy of the original.

Signed

DEPUTY REGISTRAR