c. Application No E017 of 2023
19.This motion by the respondent is dated June 23, 2023 and filed on June 27, 2023 seeking the same orders as the above, that is, striking out of the applicant’s supplementary affidavits by Raphael Tuju, Amos Oketch and Edward Kenneth Okundi sworn on June 12, 2023.
20.As regards the proceedings before the Deputy Registrar on July 21, 2023, Mr Wakhisi, counsel for the respondent, stated that the two applications are essentially one and the same. He added that they are not identical because the justifications for striking out are to a small degree different.
21.We have perused and compared the two applications. The distinguishable difference between the two is that the additional ground that the respondent has raised for striking out the supplementary affidavits is that the documents did not form part of the record of the High Court and Court of Appeal and as such ought not to be considered and or interrogated for purposes of determination of the petition as they do not form part of the record before this court.
22.We note that the applicants responded to this application by filing a replying affidavit sworn on July 12, 2023 by Raphael Tuju and written submissions dated July 12, 2023 and filed on even date in opposition thereto. Their averments rehash what they had earlier submitted.
23.In the above context, and noting the court’s order issued on April 28, 2023 granting the applicants conservatory orders staying execution and stay of proceedings pending the inter partes hearing and determination, we now opine as follows:
24.Having considered the foregoing, we hold the considered view that it is apposite to deal with the striking out of the applicants’ supplementary affidavits first, for their correlation to the application for conservatory orders. Thereafter, we will deal with the applications filed by the respondent contemporaneously. Cognizant that empowered by rule 40(3) of the Supreme Court Rules on which the respondent’s two applications are founded, the court may, on application of any party, direct certain documents to be excluded from the record, and an application for such exclusion may be made orally.
25.Turning to the matter at hand, it is not in contestation that the annexures adduced by the applicants in the supplementary affidavit were not produced in the superior courts below. It is a party’s duty to satisfy all the elements under the provisions of section 20 of the Supreme Court Act that guides the court in admitting additional evidence as established in Mohamed Abdi Mahamad v Ahmed Abdullahi Mohamed & 3 others  eKLR.
26.Under rule 26 of the Supreme Court Rules, a party seeking to adduce additional evidence should make a formal application to the court. We acknowledge that the supplementary affidavits seek to rebut averments made by the respondent. However, this does not extend to allowing the applicants to introduce additional evidence through the backdoor. Proper procedures as prescribed by the law must be followed and this, the applicants failed to do. We therefore find merit in the respondent’s applications to have the supplementary affidavits struck out.
27.With the above finding, we now proceed to consider the application for conservatory orders. The court has inherent power to make any ancillary or interlocutory orders that it deems fit to make as it may be necessary for the ends of justice or prevent abuse of the process of the court. This power is derived from section 21(2) of the Supreme Court Act and rule 3(5) of the Supreme Court Rules; and the criterion we enunciated in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others  eKLR. To consider whether to entertain the interlocutory relief sought, an applicant must demonstrate that the appeal is arguable and not frivolous; that if stay is not granted the appeal will be rendered nugatory; and that it is in the public interest that the order of stay is granted.
28.The applicants’ prayers are two pronged. First, they seek conservatory orders staying the execution of the judgment dated April 20, 2023 in Civil Appeal No 70 of 2020: Dari Limited and 5 others -versus- East African Development Bank pending the hearing and determination of this Appeal. Secondly, they seek stay of proceedings before the High Court in Milimani High Court Commercial Cause No E469 of 2019 between Dari Limited & 5 others v EADB & 2 others consolidated with Insolvency Cause Nos E001, E002, E003, E004 all of 2020; Enforcement proceedings of the notice of appointment of receivers and managers dated December 23, 2019, appointing George Weru and Muniu Thoithi as Receiver Managers of Dari Limited and any enforcement proceedings emanating from the Facility Agreement of April 10, 2015.
29.In relation to the proceedings pending before the High Court, we note that they do not directly arise in the appeal before us. The impugned judgment by the Court of Appeal makes no reference to these proceedings. Having interrogated the record, it is evident that the stay over these proceedings emanated from the Court of Appeal ruling in Civil Appeal No 202 of 2020 consolidated with Nos 203, 204, 205 & 206 of 2020 that was necessitated by the ruling of Kasango J in HCCC E469 of 2019 on July 8, 2020 that declined to extend that stay orders that had been issued by the Court of Appeal in Civil Appeal No 49 of 2020. The applicants have not adduced any evidence of the existence of any appeal on these issues before the Court of Appeal. With the judgment having been made by the Court of Appeal on the main issue on recognition and enforcement of the foreign judgment, these pending proceedings before the High Court are beyond our remit.
31.On whether an appeal is arguable, we pronounced ourselves in Tanad Transporters Limited & 2 others v Laiser Communications Limited & 2 others, SC Petition No 7 (E009) of 2022 and George Boniface Mbugua v Mohammed Jawayd Iqbal (Personal representative of the Estate of the late Ghulam Rasool Jammohamed) SC Miscellaneous Application No 7 (E011) of 2021  eKLR that this question does not call for the interrogation of the merits of the appeal and the court, at this stage, must not make any definitive findings of either fact or law. An arguable appeal is not one which necessarily must succeed but one which ought to be argued fully before the court. The applicants hinge their appeal on the question of recognition and enforcement of foreign judgments in Kenya that violate article 50 as read with article 25 of the Constitution. This is an issue that has transcended through the superior courts below as the applicants pursued their quest to set aside the adoption of a foreign judgment as a judgment of the High Court of Kenya. It is our view that this sufficiently demonstrates that the applicants have an arguable appeal, the merit of which can only be interrogated at the hearing.
32.On the nugatory aspect, the concern is whether what ought to be stayed is allowed to happen is reversible, or not. To establish this, a court has to balance the interest of the applicant vis a vis that of the respondent who is seeking to enjoy the fruits of its judgment. (See Tanad Transporters Limited Case (supra)). The applicants assert that there is imminent danger of eviction from LR No 1055/165 and LR No 11320/3 which the respondent currently holds as securities. That in the event their appeal succeeds, the respondent’s immunity may prevent the applicants from recovering their monies. Conversely, the respondent contends that the amount in question which is owed to them is considerably substantial, and in any case, the applicants can be compensated by way of damages.
33.Matching the competing arguments under the circumstances, the balance of probability favours the respondent. We say so because, though the respondent currently holds securities being charges over LR No 1055/165 and LR No 11320/3 which are located in a suburb area in Nairobi in their favour; as well as the security of Kshs. 50,000,000/- deposited in the joint names of the parties’ advocates in an interest earning account; the amount owed to the respondent is colossal with a decretal sum of USD 15,162,320.95 that continues accruing interest. The appeal before us is founded on the enforcement and recognition of a foreign judgment as against our judgment in Elly Okong’o Ing’ang’a case. The money decree issued is a result of the findings on the primary dispute as already stated. The enforceability and validity of the Facility Agreement dated April 10, 2015 as between the different parties is, in our view, a distinct issue whose determination accrues from a different course of action. The parties are, in any event, still engaged before the High Court including in High Court Insolvency Cases E001, E002, E003, and E004 of 2020, as consolidated with E469 of 2019.
34.We are satisfied that the respondent remains a reputable international bank that should have no difficulty compensating the applicants if the applicants succeeded in their claim. The applicants’ apprehension as to the diplomatic immunity afforded to the respondent does not suffice. This is because the applicants have not demonstrated the extent to which, if at all, the alleged immunity accrues and applies to the present situation. Moreover, we cannot at this stage be called upon to make a determination on immunity or otherwise of the respondent, as the issue is not on appeal before this court, having not been subject of judicial determination in the superior courts below.
35.Lastly, on the public interest element, we note that although the intended appeal is on the recognition of the foreign judgment, the arguments raised by the applicant with respect to the present application revolve around their grievances with the enforcement of the resultant money decree. Our perusal of the record reveals that the dispute between the parties arose out of the Facility Agreement entered into by the parties on April 10, 2015 and the terms thereunder. These are at best private interests that are at stake that do not have a bearing on public interest as the settings are specific to the parties in this dispute. In our view, enforcement of a foreign judgment is not in and of itself an affirmation of public interest until it is interrogated further as may be applicable on a case to case basis. We think that, prima facie, the applicants’ dispute is a matter of “private international law” or “conflict of laws” as known in other jurisdictions.
36.It is premature for the court to wade into the merits of the international law aspect of the dispute as to satisfy the public interest threshold to warrant our intervention. This position extends to the applicability of article 50 of the Constitution on the right to fair hearing in view of the purely private and/or commercial engagement between the parties. It is our inescapable conclusion that the applicants have not demonstrated to our satisfaction that they can surmount the public interest criteria for exercise of our discretion in their favour.
37.Consequently, and for the reasons aforesaid we make the following orders:i.The notice of motion application dated April 25, 2023 and filed on April 26, 2023 be and is hereby dismissed.ii.The notice of motion application (Petition (Application) No E012 of 2023) dated June 23, 2023 and filed on June 27, 2023 be and is hereby allowed.iii.The notice of motion application (Application No E017 of 2023) dated June 23, 2023 is hereby allowed.iv.Costs of the application shall abide the outcome of the appeal.It is so ordered.