1.By a petition dated 20th September 2021 filed in Nairobi High Court Petition No. E374 of 2021, the respondents herein prayed that the court be pleased to–
2.The respondents’ petition was supported by the annexed affidavit of the 1st respondent, Isaiah Luyara Odando, sworn on 20th September 2021. The petition was also accompanied by the respondents’ Notice of Motion of the same date seeking, among others, temporary conservatory orders quashing the decision referred to in paragraph 1 (a) above. In addition to the temporary orders aforesaid, the petitioners sought certification of their petition as urgent and directions that the same be mentioned on a priority basis.
3.When the petition came for directions on 27th September 2021, the learned Judge ordered that –
4.The Applicant, the Kenya Revenue Authority, was aggrieved by the interim orders of Makau J and intents to file an appeal. Indeed it has already filed a notice of appeal evidencing that intention.
5.When the respondents’ interlocutory application in the petition came up for hearing inter partes on 12th October 2021, it could not proceed as scheduled in view of the pendency of the applicant’s Notice of Motion herein dated 29th September 2021 seeking stay of execution pending lodging, hearing and determination of an intended appeal from the Ruling of the High Court at Nairobi (Makau, J) delivered on the 27th day of September 2021.
6.Pursuant to the notice of appeal aforesaid the applicant filed the instant application under consideration in the main seeking stay of execution of the interim order by Makau J. The application is brought under Rule 5 (2) (b) of the Court of Appeal Rules. In its pleadings and written submissions in support of the application, Ms. Chelagat and Mr. Nyaga learned counsel for the applicant, were in attendance while learned counsel told the Court that the applicant was seeking stay of the said interim orders made on 27th September 2021 and further proceedings in the High Court pending their intended appeal against those orders. They contended that, in their view, the intended appeal is arguable in that the learned Judge’s mind was already made up to the applicant’s prejudice, and that the pending hearing inter partes of the respondents’ Motion and Petition would not be in the applicant’s interest. On the nugatory aspect it was submitted that the applicant was losing colossal sums of money in the consumable tax that it may not recover from the respondents should the intended appeal succeed.
7.In response, the respondents filed a replying affidavit as well as written submissions. In essence, Mr. Amondi, learned counsel for the respondents decried the delay in the hearing and determination of the respondents’ Motion and petition in the High Court on account of the applicant’s Motion before us. Further that the applicant had not met the threshold for the grant of the orders sought.
8.Having considered the applicant’s Motion and the affidavit in support thereof, the affidavit filed in reply thereto by the respondent, and having considered the corresponding submissions made in writing and orally by learned counsel for the applicant and learned counsel for the respondents, we form the view that the Applicant’s Motion stands or falls on two main grounds:
9.The principles that apply in applications pursuant to Rule 5(2) (b) of the Court of Appeal Rules for stay of execution or of further proceedings pending appeal, or intended appeal, have long been settled. To be successful, an applicant must first show that the intended appeal or the appeal (if filed) is arguable, and not merely frivolous. Secondly, the applicant must show that the appeal, or the intended appeal, if successful, would be rendered nugatory if execution or further proceedings in the impugned judgment, decree or order were not stayed. These principles have been enunciated in, among others, the following judicial pronouncements of this Court, including those cited by the parties.
10.On the first limb of this twin principle, we call to mind the Court’s decision in Anne Wanjiku Kibeh v Clement Kungu Waibara and IEBC  eKLR where the Court held that, for stay orders to issue, the Applicants must first demonstrate that the appeal or intended appeal is arguable, i.e., not frivolous, and that the appeal or intended appeal would, in the absence of stay, be rendered nugatory.
11.In our considered view, the applicant’s Motion is premature and unprocedural. The orders sought, and the reasons advanced by learned counsel for the applicant are precisely the matters that await determination at the inter partes hearing of the respondents’ Motion and petition in the High Court. We agree with learned counsel for the respondents that the proceedings herein can only serve to delay the proceedings in the High Court. The intended appeal is not arguable. The impugned interim orders of the learned Judge are yet to be confirmed so as to be the subject of challenge on appeal. Accordingly, denial of the stay sought would be inconsequential and there is nothing to be rendered nugatory if the applicant’s motion is not granted.
12.The term “nugatory” was defined in Reliance Bank Ltd V Norlake Investments Ltd (2002) 1 EA p.227 at p.232 thus: it does not only mean worthless, futile or invalid. It also means trifling.” The Court also expressed the view that what may render the success of an appeal nugatory must be considered within the circumstances of each particular case.
13.We are persuaded that the circumstances of the application before us does not call for stay of further proceedings in the High Court. The intended appeal from the interim orders in issue is frivolous and in vain and can only serve to stand in the way of inter partes hearing and determination, on the merits, of the respondents’ Motion in the High Court. In conclusion, the applicant’s Notice of Motion dated 29th September 2021 is hereby dismissed. This being a matter of public interest litigation, we make no orders as to costs
DATED AND DELIVERED AT NAIROBI THIS 17TH DAY OF DECEMBER, 2021ASIKE-MAKHANDIA....................................JUDGE OF APPEALJ. MOHAMMED.....................................JUDGE OF APPEALDR. K. I. LAIBUTA.....................................JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR