1. Before this Court for determination are two applications. The first is a Notice of Motion dated 3rd July 2026 filed by the Appellant herein, the County Government of Kakamega. The second is a Notice of Motion dated 16th July 2026 filed by the Respondent, Daniel Wanyoike Ndungu.
2. The background to these applications relates to a dispute arising from a public procurement process undertaken by the Appellant. The Appellant, a procuring entity established under Article 176 of the Constitution of Kenya, 2010 and the County Governments Act, 2012 had advertised Tender No. CGKK/PSA/002/2025-2026 for the provision of security services.
3. The genesis of the dispute was the filing by the Respondent namely Madiany SPMCC Civil Case No. E011 of 2026 at Madiany law courts. In that suit, the Respondent sought to challenge Tender No. CGKK/PSA/002/2025-2026 on the grounds that it contravened provisions of the Public Procurement and Asset Disposal Act 2015 by allegedly failing to safeguard the interests of special interest groups such as the youth, women and persons with disabilities.
4. On 29th May 2026, upon an ex parte application by the Respondent, the trial court (Hon. J. J. Masiga – SPM) issued orders restraining the Appellant from advancing the procurement process including execution of the contract over the subject tender. Critically, the trial court further ordered that the existing contract between the Appellant and Papaton Security Services Limited, an entity not party to the proceedings be extended on similar terms and conditions pending the hearing of the application inter partes.
5. The Appellant aggrieved by the trial court's orders, has lodged the instant appeal and simultaneously filed the application dated 3rd July 2026 seeking, among others, an order for stay of execution of the trial court's orders pending the hearing and determination of the appeal. This court subsequently granted an interim order of stay pending inter partes hearing. Subsequently, the Respondent filed the application dated 16th July 2026 seeking to lift or vary the interim stay orders granted by this Court on 7th July 2026 and to restrain the Appellant from proceeding with the impugned procurement process.
6. Starting with the first application by the Appellant, the same is brought under Sections 1A, 1B, 3A, 65 79G and 95 of the Civil Procedure Act (Cap. 21), Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules 2010 and all other enabling provisions of the law. The same seeks the following reliefs:
a. That this Honourable Court be pleased to issue an order of stay of execution and/or stay of the operation and implementation of the ruling and/or orders of the Senior Principal Magistrate's Court at Madiany made on 29th May 2026 pending the hearing and determination of the appeal;
b. That this Honourable Court be pleased to stay proceedings in Madiany SPMCC Civil Case Number E011 of 2026, pending the hearing and determination of the intended appeal; and
c. That this Honourable Court be pleased to order that the Appellant/Applicant be at liberty to proceed with, complete and finalize the procurement in respect of Tender No. CGKK/PSA/002/2025-2026 for the provision of security services, and to make an award thereon pending the hearing and determination of the appeal.
7. The application is supported by the affidavit of Prisca Otipa, the Chief Officer responsible for Public Service in the County Government of Kakamega. The deponent avers inter alia; that the contract between the Appellant and Papaton Security Services Limited lapsed by effluxion of time on 25th May 2026; that following the lapse, the Appellant initiated a fresh competitive procurement process for security services; that the Respondent was not a candidate and did not submit any tender in the impugned procurement and therefore has no locus standi to challenge the process; that the trial court's order purporting to extend the contract of Papaton Security Services Limited was made in favour of a non-party and grants reliefs that were not pleaded in the Plaint; that the trial court lacked jurisdiction as disputes arising from public procurement processes ought to be adjudicated by the Public Procurement Administrative Review Board in the first instance; that the provision of security services is essential and any interruption exposes public property and human life to grave risk and that the financial year 2025/2026 has lapsed and unless the orders are stayed, the tender validity period will lapse rendering the appeal nugatory.
8. The second application is by the Respondent and is brought under Sections 1A, 2B, 3 and 3A of the Civil Procedure Act and Orders 42 Rule 6 and Order 51 Rules (1), (4) and (10) of the Civil Procedure Rules and sought the following orders:
a. That the status quo as at today in respect to the Appellant's Tender Reference No. CGKK/PSA/002/2025-2026 be maintained;
b. That this Honourable Court be pleased to lift the orders made on the 7th July 2026 and extended on 15th July 2026;
c. That this Honourable Court be pleased to grant a temporary order of injunction restraining the Appellant from advancing to the next stage of the procurement process, including execution of the contract, pending the hearing and determination of the application inter partes.
9. The application is supported by the affidavit of the Respondent, Daniel Wanyoike Ndungu. The Respondent contends inter alia : that the order of 7th July 2026 technically allowed the procurement process that had been stayed by the trial court to proceed; that the appeal is unmeritorious and not likely to succeed; that the Appellant's contention that the Respondent lacks locus standi is misplaced as Section 174 of the Public Procurement and Asset Disposal Act provides that the right to request review is in addition to any other legal remedy a person may have; if the procurement process is allowed to proceed, the application and the entire appeal that would be lodged will be rendered academic and nugatory.
10. The Respondent opposed the Appellant's application dated 3 rd July 2026 vide Grounds of Opposition dated 16th July 2026 and a replying affidavit sworn on 20 th July 2026. In the Grounds of Opposition, the Respondent contended interalia; that the application is frivolous, vexatious, devoid of merit and an abuse of the court process. It was further argued that granting the prayers sought would lead to absurdity as it would allow the Appellant to proceed with the evaluation process rendering the appeal nugatory should the appeal not be successful.
11. In further response to the Appellant/Applicant application dated 3 rd July 2026, the Respondent filed a replying affidavit sworn on 20 th July 2026 wherein he deposed that; that the Appellant's application is frivolous, vexatious, incompetent, an afterthought, nonsensical and premised on falsehoods and discrepancies brought out of sheer bad faith amounting to an abuse of the court process; that the Orders leading to the present appeal were issued by the Senior Principal Magistrate's Court at Madiany (Hon. J.J. Masiga, SPM); that the Appellant was served with the court order and pleadings in the matter as per the affidavit of the process server Fred Sitati Opili) ;that the Appellant entered an appearance by filing its Memorandum of Appearance through EDAM Associates Advocates which demonstrates the Appellant was fully aware of the court orders at all times and participated in the trial court proceedings without fail; that under Section 79G of the Civil Procedure Act, the statutory window for filing an appeal to the High Court is exactly 30 days and consequently, the Appellant was required to file its appeal on or before 28th June 2026; that the Appellant however filed the appeal on 6th July 2026 at 4:52 PM making the appeal eight (8) days late ; that the trial court delivered its ruling overruling and dismissing the Appellant's Preliminary Objection; that the Appellant chose to sleep on its rights and was only prompted to action by the adverse ruling, invoking the equitable maxim: "Equity assists the vigilant and not the indolent!; that as the successful party, he is entitled to the fruits of any court decision made in his favor at any stage; that public interest requires litigation to come to an end and that he should be protected from defending a "null appeal”; that courts are already clogged with cases and should not spare time entertaining incompetent or null appeals; that the Appellant’s Application dated 3rd July 2026 be dismissed in its entirety.
12. The Appellant opposed the Respondent's application dated 16 th July 2026 vide the replying affidavit of Prisca Otipa sworn on 17th July 2026 and a supplementary affidavit sworn on 20th July 2026 deposing as the Chief Officer responsible for Public Service. The Appellant vide the replying affidavit sworn on the 17 th July 2026 contends inter alia: that the Appellant is a county government established under Articles 6(1) and 176 of the Constitution of Kenya, 2010 and functions as a procuring entity under the Public Procurement and Asset Disposal Act 2015; that the affidavit was sworn in opposition to the Respondent/Applicant’s Notice of Motion Application dated 16th July 2026 and its accompanying supporting affidavit; that the contract between the Appellant and Papaton Security Services Limited (who is not a party to the suit in either court) had already lapsed by effluxion of time on 25th May 2026 as per the annexed copy of the contract; that following the lapse, the Appellant's department sought approval from the Chief Officer Finance on 16th April 2026 to initiate a fresh procurement process and that upon receiving approval, the Appellant initiated a competitive process by requesting the Chief Officer ICT to upload the tender on the county website and subsequently advertising Tender No. CGKK/PSA/002/2025-2026 in local dailies as required by law; that the Respondent/Applicant Daniel Wanyoike Ndungu sought to stop this tendering process by filing Madiany SPMCC Civil Case No. E011 of 2026 via a Plaint and Notice of Motion dated 29th May 2026; that on 29th May 2026, Hon. J.J. Masiga (Senior Principal Magistrate) sitting at Madiany Law Courts issued ex parte orders certifying the application urgent; restraining the Appellant from proceeding with Tender No. CGKK/PSA/002/2025-2026 and purporting to extend the expired contract between the Appellant and Papaton Security Services Limited (a non-party) pending inter-partes hearing; that security services for health facilities, public assets, personnel and members of the public are essential services that cannot be halted without exposing public property and human lives to grave immediate risk; that the courts cannot rewrite contracts or extend expired agreements with non-parties and any legal void in interim service provision causes irreparable harm; that due to the risk posed by the lower court's orders, the Appellant filed a Certificate of Urgency and Motion in the High Court seeking a stay of execution ; that the High Court granted the Appellant an order staying the decision and proceedings of the Madiany Magistrate’s Court; that to avert operational lapses, the Appellant concluded the evaluation and awarded the tender to M/s Dalic Company Limited who is currently mobilizing to begin service delivery ; that the balance of convenience and public interest overwhelmingly support allowing the new provider to work to prevent loss of funds, legal uncertainty and safety compromises; that as of the date of the affidavit, the procurement process is fully finalized and awarded; that based on advice from her counsel M/s EDAM Associates Advocates, she stated that courts do not issue orders in vain and granting the Respondent/Applicant's application dated 16th July 2026 would amount to issuing futile orders; that the Respondent/Applicant's application be dismissed with costs in the interest of justice and public good.
13. In further opposition to the Respondent’s application dated 16 th July 2026, the appellant filed a supplementary affidavit sworn by Prisca Otipa on 20th July 2026 deposing as the Chief Officer responsible for Public Service wherein she reiterated inter alia; that the Appellant is a county government established under Articles 6(1) and 176 of the Constitution of Kenya 2010 and acts as a procuring entity under the Public Procurement and Asset Disposal Act 2015; that based on legal advice from M/s EDAM Associates Advocates, she outlined the mandatory sequential conditions for granting a temporary injunction: demonstration of a prima facie case with a probability of success; demonstration of irreparable injury not compensable in damages; where in doubt, the balance of convenience must tilt in the applicant's favor; that the Court of Appeal precedent establishing that these limbs are sequential; that failing at the first limb closes the inquiry and requires denial of the injunction; that a prima facie case requires demonstrating the infringement of a legal right. However, the Respondent/Applicant was neither a candidate nor a tenderer in Tender No. CGKK/PSA/002/2025-2026; that upon opening the tender on 2nd June 2026, the only participating bidders were Papaton Security Services Limited, Bracel Security Limited and Dalik Security; that as a stranger to the procurement process, the Respondent/Applicant suffers no demonstrable grievance or right violation and lacks locus standi to seek court orders; that open tendering is the default and lawful method under the Act; that the procuring entity retains the sole mandate to designate which tenders are open and which are reserved under the 30% AGPO rule for youth, women and PWDs; that the Respondent failed to prove he belongs to any special interest group filed a bid under AGPO or represents an enterprise qualifying for reserved status; that because the Respondent is a stranger to the process, he cannot demonstrate any personal or financial loss if the injunction is denied; that the balance of convenience heavily tilts toward denying the injunction and finalizing the procurement due to the following reasons: the county requires over 1,300 guards to secure health facilities, assets and personnel; an ongoing void caused by an expired contract poses severe security risks and that the 2025/2026 financial year ended on 30th June 2026 requiring immediate execution of the 2026/2027 contract pursuant to planning and budget obligations under Sections 102–105 of the County Governments Act 2012; that procurement disputes are legally reserved for the Public Procurement Administrative Review Board (Section 167), the PPRA (Sections 8 & 9) and the High Court via Judicial Review (Sections 174 & 175). A magistrate's court exercising civil jurisdiction has no place in this statutory scheme; that the suit against the County Government of Kakamega ought to have been filed in Kakamega, not Madiany, rendering the trial court without jurisdiction; that the Respondent/Applicant's application be dismissed with costs in the interest of justice and public good.
14. Both applications were canvassed by way of written submissions .
15. The Appellant filed their submissions dated 14 the July 2026 and Supplementary submissions dated 2026 wherein it was submitted that it was well settled that a party seeking to preserve a position pending an appeal had to satisfy two conjunctive principles: first, that the appeal was arguable and not frivolous; and secondly, that unless the order sought was granted, the appeal, if it were to succeed, would be rendered nugatory. It was noted that those twin principles had been authoritatively restated in Stanley Kang'ethe Kinyanjui v Tony Ketter & 5 Others [2013] eKLR and Reliance Bank Ltd v Norlake Investments Ltd [2002] 1 EA 227. The Appellant emphasized that both limbs had to be established and that it was not sufficient to satisfy only one of them, citing Peter Paul Mburu Ndururi v James Macharia Njore [2009] eKLR.
16. The Appellant further averred that although those principles found their fullest expression under Rule 5(2)(b) of the Court of Appeal Rules, the very same considerations informed the exercise of that Honourable Court's discretion to stay a decision pending an appeal under Order 42 rule 6 of the Civil Procedure Rules 2010. Under that provision, the touchstone was whether the applicant would otherwise suffer substantial loss and whether the appeal stood to be defeated. Citing Butt v Rent Restriction Tribunal [1982] KLR 417, the Appellant pointed out that it had been emphasized that a court ought not to refuse a stay where such a refusal would render the appeal nugatory and deprive a litigant of the fruits of an arguable appeal. It was maintained that the Appellant made the subsequent submissions against those principles and those alone.
17. It was contended that an arguable appeal was not one that had to necessarily succeed, but rather one that was not frivolous and that raised at least one bona fide question deserving of a full argument before the appellate court as supported by Stanley Kang'ethe Kinyanjui v Tony Ketter (supra) and Kenya Tea Growers Association & Another v Kenya Plantation and Agricultural Workers Union [2012] eKLR. The Appellant asserted that a single bona fide arguable ground was enough to satisfy that limb.
18. The Appellant argued that its appeal raised not just one but several such questions each being independently arguable: whether the court could properly issue an order in favour of Papaton Security Services Limited, a person who was not a party to the suit and was not before it; whether the court could extend and revive a contract that had already lapsed by effluxion of time; whether the court could grant a relief namely the extension of a contract that had never been pleaded in the Plaint; whether the Respondent being neither a candidate nor a tenderer in the impugned procurement had the locus standi to institute the suit or to obtain the orders; whether the orders of injunction met the settled threshold and whether the public interest and the balance of convenience were properly weighed; and whether a trial court sitting in Madiany Siaya had the jurisdiction to sit and determine a matter where the defendant carried on business in Kakamega and where the impugned security services were to be procured in Kakamega and for Kakamega County.
19. The Appellant argued that the arguability of such questions was placed beyond controversy by the decision of the Court of Appeal in Nandi County Public Service Board & Another v Ketter & 461 Others [2025] KECA 71 (KLR), where the Court had held that the question of whether a court had jurisdiction alongside the question of whether persons who were not parties to a suit could enjoy the benefit of its orders were themselves arguable grounds. The Appellant stated that those very questions arose squarely in the current appeal. It was submitted that the Appellant was not require at that stage to demonstrate that those grounds would ultimately succeed; it was enough that they were weighty, bona fide and fit to be argued fully. The Appellant stated that the first limb was with respect amply satisfied.
20. Regarding the second limb, the Appellant stated that the term "nugatory" was to be given it’s full meaning connoting not merely that which was worthless or futile but also that which was trifling. It was argued that whether an appeal would be rendered nugatory depended on whether what was sought to be stayed, if allowed to happen, was reversible; and if it was not reversible, whether damages would reasonably compensate the aggrieved party pursuant to Stanley Kang'ethe Kinyanjui v Tony Ketter (supra). The Appellant added that in applying that test, the court had to weigh the conflicting claims of both sides citing Reliance Bank Ltd v Norlake Investments Ltd (supra)
21. The Appellant posited that when applied to the impugned orders, the appeal would plainly be rendered nugatory if a stay was not granted because: the third order (the extension) kept an already-expired contract with Papaton Security Services Limited in force with public funds being expended month upon month in favour of a non-party under the compulsion of the order. The Appellant noted that this was actually a case of a court rewriting the parties' contract. It was further argued that monies so paid out of the public purse were irrecoverable, that Papaton had furnished no undertaking and no security to refund them and that Papaton was not even before the court to be bound. The Appellant stated that the loss of public funds was a recognized factor that rendered an appeal nugatory under Nandi County Public Service Board & Another v Ketter (supra ) and that damages were neither available nor adequate as a remedy to the public purse.; the provision of security services to the county's health facilities, assets, personnel and members of the public was an essential service. The Appellant asserted that any interruption or dislocation occasioned by a legal void in the interim would visit irreparable harm upon life and public property for which damages could never compensate considering that the Appellant's contract with Papaton had expired by effluxion of time and a court could not rewrite a parties' contract or purport to extend it; the second order (the injunction) froze an ongoing and time-bound procurement Tender No. CGKK/PSA/002/2025-2026. The Appellant pointed out that the financial year 2025/2026 had lapsed on 30th June 2026 meaning that if the procurement remained frozen, the tender validity period would itself lapse and the procurement would collapse. It was maintained that an expired tender could not be resuscitated whether by consent or by order citing Republic v Public Procurement Administrative Review Board ex parte National Irrigation Board. The Appellant stated that should it ultimately succeed on appeal, its success would be hollow and merely academic for there would be no live procurement left to conclude which was the very definition of a nugatory appeal; the subject matter of the appeal being the Appellant's freedom to conclude the procurement and award the contract as well as its lawful control over the incumbent's expired contract would be irretrievably altered by the mere passage of time. The Appellant contended that the effects complained of were by their very nature irreversible.
22. The Appellant stated that in weighing the conflicting claims of both sides, as the Honourable Court had to do, the balance pointed in one direction only. It was argued that the Respondent whom the Appellant described as a stranger to the tender with no demonstrated interest in it stood to suffer nothing whatsoever if the orders were stayed. Conversely, the Appellant and the public it served stood to suffer irreversible loss, the collapse of the procurement, the continued haemorrhage of public funds and the compromise of an essential service if the orders were allowed to stand. The Appellant concluded that the nugatory limb was therefore satisfied and satisfied compellingly.
23. The Appellant concluded by stating that having demonstrated both that the intended appeal was arguable and that it would be rendered nugatory were the impugned orders not stayed, the two conjunctive limbs had been met. The Appellant respectfully prayed that the orders of the Senior Principal Magistrate's Court at Madiany made on 29th May 2026 be stayed pending the hearing and determination of the appeal with costs.
24. In their supplementary submissions dated 20 th July 2026 it was further submitted by the Appellant that the primary purpose of a stay pending appeal is to preserve the status quo so that the appeal when eventually heard remains meaningful. The Appellant stated that two fundamental questions govern the grant of a stay: whether the appeal itself is arguable; and whether without a stay, the appeal would be rendered nugatory if successful. The Appellant asserted that allowing an arguable appeal to become nugatory leaves a right without a remedy which the law does not permit. By its Notice of Motion dated 3rd July 2026, the Appellant seeks a stay of the orders issued on 29th May 2026 by the Senior Principal Magistrate's Court at Madiany pending the determination of both the application and the main appeal.
25. The Appellant noted that under settled jurisprudence including Stanley Kang'ethe Kinyanjui v Tony Ketter & 5 Others [2013] eKLR, Reliance Bank Ltd (In Liquidation) v Norlake Investments Ltd [2002] 1 EA 227 an d Peter Paul Mburu Ndururi v James Macharia Njore [2009] eKLR the two principles (arguability and the nugatory aspect) are conjunctive requiring the applicant to establish both.
26. The Appellant submitted that stay pending appeal from a subordinate court is governed by Order 42 Rule 6 of the Civil Procedure Rules 2010, which requires proof of substantial loss (Vishram Ravji Halai v Thornton & Turpin (1963) Ltd [1990] KLR 365; Kenya Shell Ltd v Kibiru [1986] KLR 410). Citing James Wangalwa & Another v Agnes Naliaka Cheseto [2013] eKLR and Butt v Rent Restriction Tribunal [1982] KLR 417 , the Appellant argued that showing the appeal would be rendered nugatory is the precise standard for establishing "substantial loss" under the rules. The Appellant emphasized that the threshold for an arguable appeal is modest: it need not be bound to succeed but must raise at least one bona fide question deserving of full judicial consideration (Kang'ethe Kinyanjui; Kenya Tea Growers Association & Another v KPAWU [2012] eKLR).
27. The Appellant submitted that its appeal raises multiple non-frivolous genuine legal questions: whether a court may issue an order binding and benefiting a non-party (Papaton Security Services Limited) that was never joined or heard; whether a person who is neither a candidate nor a tenderer has locus standi to challenge a procurement process in which they did not participate; whether a court can extend or revive a contract that had already expired by effluxion of time effectively rewriting the contract between parties; whether a court can grant a relief (extension of a contract) that was not pleaded or sought in the Plaint; whether a Magistrate’s Court has jurisdiction to entertain a public procurement dispute that the Public Procurement and Asset Disposal Act 2015 reserves exclusively for the Review Board, the PPRA, and the High Court; and whether the trial court in Madiany (Hon. J.J. Masiga, SPM) had territorial jurisdiction given that the Defendant is the County Government of Kakamega and the services were to be performed in Kakamega County. Relying on Nandi County Public Service Board & Another v Ketter & 461 Others [2025] KECA 71 (KLR) the Appellant highlighted that the Court of Appeal expressly held that questions of jurisdiction and orders benefiting non-parties are prima facie arguable grounds.
28. Citing Kang'ethe Kinyanjui , the Appellant submitted that "nugatory" means worthless, futile or trifling evaluated based on whether the consequences of refusing a stay are reversible and whether damages would provide an adequate remedy. The Appellant outlined three irreversible consequences if the stay were refused : the procurement process would remain frozen until the tender validity period expires after which an expired tender cannot be revived (Republic v PPARB ex parte National Irrigation Board) leaving a successful appeal with no live process to vindicate; the Appellant would be forced to pay substantial public funds to an unjoined non-party under an expired contract creating an unrecoverable drain on the public purse (Nandi County Public Service Board v Ketter) for which damages are unavailable and inadequate; Critical security for over 1,300 personnel, health facilities and public assets would remain dislocated, creating immediate risks to life and public property that money cannot compensate. Weighing the conflicting interests (Reliance Bank Ltd v Norlake Investments Ltd), the Appellant argued that the Respondent a stranger to the tender loses nothing if a stay is granted, whereas the Appellant and the public stand to suffer irreparable and irreversible loss if the stay is refused.
29. The Appellant maintained that it has satisfied both conjunctive requirements by establishing an arguable appeal and demonstrating substantial irreversible loss. The Appellant sought relief of court interalia that; that the orders of the Senior Principal Magistrate's Court at Madiany made on 29th May 2026 be stayed pending the hearing and determination of this appeal; that to maintain good order and avoid conflicting decisions, proceedings in Madiany SPMCC Civil Case No. E011 of 2026 be stayed pending the appeal; and that the Notice of Motion dated 3rd July 2026 be allowed as prayed.
30. The Respondent filed his submissions dated 21 st July 2026 opposing the Appellant's application dated 3rd July 2026 while fully supporting his application dated 16th July 2026. The Respondent submitted that the orders appealed against were made on 29th May 2026 by Hon. J.J. Masiga (SPM) at Madiany. That the Appellant was served on 2nd June 2026 and it filed its Memorandum of Appearance on 10th June 2026 through current counsel. That despite full awareness, the Appellant only filed this appeal on 6th July 2026, 38 days later. That s ection 79G of the Civil Procedure Act mandates that appeals from subordinate courts to the High Court SHALL be filed within 30 days. That the deadline to appeal was 28th June 2026 and that the appeal filed on 6th July 2026 was 8 days late without any leave or pending application for extension of time. Citing the Longman Dictionary of the English Language , counsel submitted that "shall" denotes a compulsory statutory command.
31. Relying on the Court of Appeal and Supreme Court
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2. The background to these applications relates to a dispute arising from a public procurement process undertaken by the Appellant. The Appellant, a procuring entity established under Article 176 of the Constitution of Kenya, 2010 and the County Governments Act, 2012 had advertised Tender No. CGKK/PSA/002/2025-2026 for the provision of security services.
3. The genesis of the dispute was the filing by the Respondent namely Madiany SPMCC Civil Case No. E011 of 2026 at Madiany law courts. In that suit, the Respondent sought to challenge Tender No. CGKK/PSA/002/2025-2026 on the grounds that it contravened provisions of the Public Procurement and Asset Disposal Act 2015 by allegedly failing to safeguard the interests of special interest groups such as the youth, women and persons with disabilities.
4. On 29th May 2026, upon an ex parte application by the Respondent, the trial court (Hon. J. J. Masiga – SPM) issued orders restraining the Appellant from advancing the procurement process including execution of the contract over the subject tender. Critically, the trial court further ordered that the existing contract between the Appellant and Papaton Security Services Limited, an entity not party to the proceedings be extended on similar terms and conditions pending the hearing of the application inter partes.
5. The Appellant aggrieved by the trial court's orders, has lodged the instant appeal and simultaneously filed the application dated 3rd July 2026 seeking, among others, an order for stay of execution of the trial court's orders pending the hearing and determination of the appeal. This court subsequently granted an interim order of stay pending inter partes hearing. Subsequently, the Respondent filed the application dated 16th July 2026 seeking to lift or vary the interim stay orders granted by this Court on 7th July 2026 and to restrain the Appellant from proceeding with the impugned procurement process.
6. Starting with the first application by the Appellant, the same is brought under Sections 1A, 1B, 3A, 65 79G and 95 of the Civil Procedure Act (Cap. 21), Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules 2010 and all other enabling provisions of the law. The same seeks the following reliefs:
a. That this Honourable Court be pleased to issue an order of stay of execution and/or stay of the operation and implementation of the ruling and/or orders of the Senior Principal Magistrate's Court at Madiany made on 29th May 2026 pending the hearing and determination of the appeal;
b. That this Honourable Court be pleased to stay proceedings in Madiany SPMCC Civil Case Number E011 of 2026, pending the hearing and determination of the intended appeal; and
c. That this Honourable Court be pleased to order that the Appellant/Applicant be at liberty to proceed with, complete and finalize the procurement in respect of Tender No. CGKK/PSA/002/2025-2026 for the provision of security services, and to make an award thereon pending the hearing and determination of the appeal.
7. The application is supported by the affidavit of Prisca Otipa, the Chief Officer responsible for Public Service in the County Government of Kakamega. The deponent avers inter alia; that the contract between the Appellant and Papaton Security Services Limited lapsed by effluxion of time on 25th May 2026; that following the lapse, the Appellant initiated a fresh competitive procurement process for security services; that the Respondent was not a candidate and did not submit any tender in the impugned procurement and therefore has no locus standi to challenge the process; that the trial court's order purporting to extend the contract of Papaton Security Services Limited was made in favour of a non-party and grants reliefs that were not pleaded in the Plaint; that the trial court lacked jurisdiction as disputes arising from public procurement processes ought to be adjudicated by the Public Procurement Administrative Review Board in the first instance; that the provision of security services is essential and any interruption exposes public property and human life to grave risk and that the financial year 2025/2026 has lapsed and unless the orders are stayed, the tender validity period will lapse rendering the appeal nugatory.
8. The second application is by the Respondent and is brought under Sections 1A, 2B, 3 and 3A of the Civil Procedure Act and Orders 42 Rule 6 and Order 51 Rules (1), (4) and (10) of the Civil Procedure Rules and sought the following orders:
a. That the status quo as at today in respect to the Appellant's Tender Reference No. CGKK/PSA/002/2025-2026 be maintained;
b. That this Honourable Court be pleased to lift the orders made on the 7th July 2026 and extended on 15th July 2026;
c. That this Honourable Court be pleased to grant a temporary order of injunction restraining the Appellant from advancing to the next stage of the procurement process, including execution of the contract, pending the hearing and determination of the application inter partes.
9. The application is supported by the affidavit of the Respondent, Daniel Wanyoike Ndungu. The Respondent contends inter alia : that the order of 7th July 2026 technically allowed the procurement process that had been stayed by the trial court to proceed; that the appeal is unmeritorious and not likely to succeed; that the Appellant's contention that the Respondent lacks locus standi is misplaced as Section 174 of the Public Procurement and Asset Disposal Act provides that the right to request review is in addition to any other legal remedy a person may have; if the procurement process is allowed to proceed, the application and the entire appeal that would be lodged will be rendered academic and nugatory.
10. The Respondent opposed the Appellant's application dated 3 rd July 2026 vide Grounds of Opposition dated 16th July 2026 and a replying affidavit sworn on 20 th July 2026. In the Grounds of Opposition, the Respondent contended interalia; that the application is frivolous, vexatious, devoid of merit and an abuse of the court process. It was further argued that granting the prayers sought would lead to absurdity as it would allow the Appellant to proceed with the evaluation process rendering the appeal nugatory should the appeal not be successful.
11. In further response to the Appellant/Applicant application dated 3 rd July 2026, the Respondent filed a replying affidavit sworn on 20 th July 2026 wherein he deposed that; that the Appellant's application is frivolous, vexatious, incompetent, an afterthought, nonsensical and premised on falsehoods and discrepancies brought out of sheer bad faith amounting to an abuse of the court process; that the Orders leading to the present appeal were issued by the Senior Principal Magistrate's Court at Madiany (Hon. J.J. Masiga, SPM); that the Appellant was served with the court order and pleadings in the matter as per the affidavit of the process server Fred Sitati Opili) ;that the Appellant entered an appearance by filing its Memorandum of Appearance through EDAM Associates Advocates which demonstrates the Appellant was fully aware of the court orders at all times and participated in the trial court proceedings without fail; that under Section 79G of the Civil Procedure Act, the statutory window for filing an appeal to the High Court is exactly 30 days and consequently, the Appellant was required to file its appeal on or before 28th June 2026; that the Appellant however filed the appeal on 6th July 2026 at 4:52 PM making the appeal eight (8) days late ; that the trial court delivered its ruling overruling and dismissing the Appellant's Preliminary Objection; that the Appellant chose to sleep on its rights and was only prompted to action by the adverse ruling, invoking the equitable maxim: "Equity assists the vigilant and not the indolent!; that as the successful party, he is entitled to the fruits of any court decision made in his favor at any stage; that public interest requires litigation to come to an end and that he should be protected from defending a "null appeal”; that courts are already clogged with cases and should not spare time entertaining incompetent or null appeals; that the Appellant’s Application dated 3rd July 2026 be dismissed in its entirety.
12. The Appellant opposed the Respondent's application dated 16 th July 2026 vide the replying affidavit of Prisca Otipa sworn on 17th July 2026 and a supplementary affidavit sworn on 20th July 2026 deposing as the Chief Officer responsible for Public Service. The Appellant vide the replying affidavit sworn on the 17 th July 2026 contends inter alia: that the Appellant is a county government established under Articles 6(1) and 176 of the Constitution of Kenya, 2010 and functions as a procuring entity under the Public Procurement and Asset Disposal Act 2015; that the affidavit was sworn in opposition to the Respondent/Applicant’s Notice of Motion Application dated 16th July 2026 and its accompanying supporting affidavit; that the contract between the Appellant and Papaton Security Services Limited (who is not a party to the suit in either court) had already lapsed by effluxion of time on 25th May 2026 as per the annexed copy of the contract; that following the lapse, the Appellant's department sought approval from the Chief Officer Finance on 16th April 2026 to initiate a fresh procurement process and that upon receiving approval, the Appellant initiated a competitive process by requesting the Chief Officer ICT to upload the tender on the county website and subsequently advertising Tender No. CGKK/PSA/002/2025-2026 in local dailies as required by law; that the Respondent/Applicant Daniel Wanyoike Ndungu sought to stop this tendering process by filing Madiany SPMCC Civil Case No. E011 of 2026 via a Plaint and Notice of Motion dated 29th May 2026; that on 29th May 2026, Hon. J.J. Masiga (Senior Principal Magistrate) sitting at Madiany Law Courts issued ex parte orders certifying the application urgent; restraining the Appellant from proceeding with Tender No. CGKK/PSA/002/2025-2026 and purporting to extend the expired contract between the Appellant and Papaton Security Services Limited (a non-party) pending inter-partes hearing; that security services for health facilities, public assets, personnel and members of the public are essential services that cannot be halted without exposing public property and human lives to grave immediate risk; that the courts cannot rewrite contracts or extend expired agreements with non-parties and any legal void in interim service provision causes irreparable harm; that due to the risk posed by the lower court's orders, the Appellant filed a Certificate of Urgency and Motion in the High Court seeking a stay of execution ; that the High Court granted the Appellant an order staying the decision and proceedings of the Madiany Magistrate’s Court; that to avert operational lapses, the Appellant concluded the evaluation and awarded the tender to M/s Dalic Company Limited who is currently mobilizing to begin service delivery ; that the balance of convenience and public interest overwhelmingly support allowing the new provider to work to prevent loss of funds, legal uncertainty and safety compromises; that as of the date of the affidavit, the procurement process is fully finalized and awarded; that based on advice from her counsel M/s EDAM Associates Advocates, she stated that courts do not issue orders in vain and granting the Respondent/Applicant's application dated 16th July 2026 would amount to issuing futile orders; that the Respondent/Applicant's application be dismissed with costs in the interest of justice and public good.
13. In further opposition to the Respondent’s application dated 16 th July 2026, the appellant filed a supplementary affidavit sworn by Prisca Otipa on 20th July 2026 deposing as the Chief Officer responsible for Public Service wherein she reiterated inter alia; that the Appellant is a county government established under Articles 6(1) and 176 of the Constitution of Kenya 2010 and acts as a procuring entity under the Public Procurement and Asset Disposal Act 2015; that based on legal advice from M/s EDAM Associates Advocates, she outlined the mandatory sequential conditions for granting a temporary injunction: demonstration of a prima facie case with a probability of success; demonstration of irreparable injury not compensable in damages; where in doubt, the balance of convenience must tilt in the applicant's favor; that the Court of Appeal precedent establishing that these limbs are sequential; that failing at the first limb closes the inquiry and requires denial of the injunction; that a prima facie case requires demonstrating the infringement of a legal right. However, the Respondent/Applicant was neither a candidate nor a tenderer in Tender No. CGKK/PSA/002/2025-2026; that upon opening the tender on 2nd June 2026, the only participating bidders were Papaton Security Services Limited, Bracel Security Limited and Dalik Security; that as a stranger to the procurement process, the Respondent/Applicant suffers no demonstrable grievance or right violation and lacks locus standi to seek court orders; that open tendering is the default and lawful method under the Act; that the procuring entity retains the sole mandate to designate which tenders are open and which are reserved under the 30% AGPO rule for youth, women and PWDs; that the Respondent failed to prove he belongs to any special interest group filed a bid under AGPO or represents an enterprise qualifying for reserved status; that because the Respondent is a stranger to the process, he cannot demonstrate any personal or financial loss if the injunction is denied; that the balance of convenience heavily tilts toward denying the injunction and finalizing the procurement due to the following reasons: the county requires over 1,300 guards to secure health facilities, assets and personnel; an ongoing void caused by an expired contract poses severe security risks and that the 2025/2026 financial year ended on 30th June 2026 requiring immediate execution of the 2026/2027 contract pursuant to planning and budget obligations under Sections 102–105 of the County Governments Act 2012; that procurement disputes are legally reserved for the Public Procurement Administrative Review Board (Section 167), the PPRA (Sections 8 & 9) and the High Court via Judicial Review (Sections 174 & 175). A magistrate's court exercising civil jurisdiction has no place in this statutory scheme; that the suit against the County Government of Kakamega ought to have been filed in Kakamega, not Madiany, rendering the trial court without jurisdiction; that the Respondent/Applicant's application be dismissed with costs in the interest of justice and public good.
14. Both applications were canvassed by way of written submissions .
15. The Appellant filed their submissions dated 14 the July 2026 and Supplementary submissions dated 2026 wherein it was submitted that it was well settled that a party seeking to preserve a position pending an appeal had to satisfy two conjunctive principles: first, that the appeal was arguable and not frivolous; and secondly, that unless the order sought was granted, the appeal, if it were to succeed, would be rendered nugatory. It was noted that those twin principles had been authoritatively restated in Stanley Kang'ethe Kinyanjui v Tony Ketter & 5 Others [2013] eKLR and Reliance Bank Ltd v Norlake Investments Ltd [2002] 1 EA 227. The Appellant emphasized that both limbs had to be established and that it was not sufficient to satisfy only one of them, citing Peter Paul Mburu Ndururi v James Macharia Njore [2009] eKLR.
16. The Appellant further averred that although those principles found their fullest expression under Rule 5(2)(b) of the Court of Appeal Rules, the very same considerations informed the exercise of that Honourable Court's discretion to stay a decision pending an appeal under Order 42 rule 6 of the Civil Procedure Rules 2010. Under that provision, the touchstone was whether the applicant would otherwise suffer substantial loss and whether the appeal stood to be defeated. Citing Butt v Rent Restriction Tribunal [1982] KLR 417, the Appellant pointed out that it had been emphasized that a court ought not to refuse a stay where such a refusal would render the appeal nugatory and deprive a litigant of the fruits of an arguable appeal. It was maintained that the Appellant made the subsequent submissions against those principles and those alone.
17. It was contended that an arguable appeal was not one that had to necessarily succeed, but rather one that was not frivolous and that raised at least one bona fide question deserving of a full argument before the appellate court as supported by Stanley Kang'ethe Kinyanjui v Tony Ketter (supra) and Kenya Tea Growers Association & Another v Kenya Plantation and Agricultural Workers Union [2012] eKLR. The Appellant asserted that a single bona fide arguable ground was enough to satisfy that limb.
18. The Appellant argued that its appeal raised not just one but several such questions each being independently arguable: whether the court could properly issue an order in favour of Papaton Security Services Limited, a person who was not a party to the suit and was not before it; whether the court could extend and revive a contract that had already lapsed by effluxion of time; whether the court could grant a relief namely the extension of a contract that had never been pleaded in the Plaint; whether the Respondent being neither a candidate nor a tenderer in the impugned procurement had the locus standi to institute the suit or to obtain the orders; whether the orders of injunction met the settled threshold and whether the public interest and the balance of convenience were properly weighed; and whether a trial court sitting in Madiany Siaya had the jurisdiction to sit and determine a matter where the defendant carried on business in Kakamega and where the impugned security services were to be procured in Kakamega and for Kakamega County.
19. The Appellant argued that the arguability of such questions was placed beyond controversy by the decision of the Court of Appeal in Nandi County Public Service Board & Another v Ketter & 461 Others [2025] KECA 71 (KLR), where the Court had held that the question of whether a court had jurisdiction alongside the question of whether persons who were not parties to a suit could enjoy the benefit of its orders were themselves arguable grounds. The Appellant stated that those very questions arose squarely in the current appeal. It was submitted that the Appellant was not require at that stage to demonstrate that those grounds would ultimately succeed; it was enough that they were weighty, bona fide and fit to be argued fully. The Appellant stated that the first limb was with respect amply satisfied.
20. Regarding the second limb, the Appellant stated that the term "nugatory" was to be given it’s full meaning connoting not merely that which was worthless or futile but also that which was trifling. It was argued that whether an appeal would be rendered nugatory depended on whether what was sought to be stayed, if allowed to happen, was reversible; and if it was not reversible, whether damages would reasonably compensate the aggrieved party pursuant to Stanley Kang'ethe Kinyanjui v Tony Ketter (supra). The Appellant added that in applying that test, the court had to weigh the conflicting claims of both sides citing Reliance Bank Ltd v Norlake Investments Ltd (supra)
21. The Appellant posited that when applied to the impugned orders, the appeal would plainly be rendered nugatory if a stay was not granted because: the third order (the extension) kept an already-expired contract with Papaton Security Services Limited in force with public funds being expended month upon month in favour of a non-party under the compulsion of the order. The Appellant noted that this was actually a case of a court rewriting the parties' contract. It was further argued that monies so paid out of the public purse were irrecoverable, that Papaton had furnished no undertaking and no security to refund them and that Papaton was not even before the court to be bound. The Appellant stated that the loss of public funds was a recognized factor that rendered an appeal nugatory under Nandi County Public Service Board & Another v Ketter (supra ) and that damages were neither available nor adequate as a remedy to the public purse.; the provision of security services to the county's health facilities, assets, personnel and members of the public was an essential service. The Appellant asserted that any interruption or dislocation occasioned by a legal void in the interim would visit irreparable harm upon life and public property for which damages could never compensate considering that the Appellant's contract with Papaton had expired by effluxion of time and a court could not rewrite a parties' contract or purport to extend it; the second order (the injunction) froze an ongoing and time-bound procurement Tender No. CGKK/PSA/002/2025-2026. The Appellant pointed out that the financial year 2025/2026 had lapsed on 30th June 2026 meaning that if the procurement remained frozen, the tender validity period would itself lapse and the procurement would collapse. It was maintained that an expired tender could not be resuscitated whether by consent or by order citing Republic v Public Procurement Administrative Review Board ex parte National Irrigation Board. The Appellant stated that should it ultimately succeed on appeal, its success would be hollow and merely academic for there would be no live procurement left to conclude which was the very definition of a nugatory appeal; the subject matter of the appeal being the Appellant's freedom to conclude the procurement and award the contract as well as its lawful control over the incumbent's expired contract would be irretrievably altered by the mere passage of time. The Appellant contended that the effects complained of were by their very nature irreversible.
22. The Appellant stated that in weighing the conflicting claims of both sides, as the Honourable Court had to do, the balance pointed in one direction only. It was argued that the Respondent whom the Appellant described as a stranger to the tender with no demonstrated interest in it stood to suffer nothing whatsoever if the orders were stayed. Conversely, the Appellant and the public it served stood to suffer irreversible loss, the collapse of the procurement, the continued haemorrhage of public funds and the compromise of an essential service if the orders were allowed to stand. The Appellant concluded that the nugatory limb was therefore satisfied and satisfied compellingly.
23. The Appellant concluded by stating that having demonstrated both that the intended appeal was arguable and that it would be rendered nugatory were the impugned orders not stayed, the two conjunctive limbs had been met. The Appellant respectfully prayed that the orders of the Senior Principal Magistrate's Court at Madiany made on 29th May 2026 be stayed pending the hearing and determination of the appeal with costs.
24. In their supplementary submissions dated 20 th July 2026 it was further submitted by the Appellant that the primary purpose of a stay pending appeal is to preserve the status quo so that the appeal when eventually heard remains meaningful. The Appellant stated that two fundamental questions govern the grant of a stay: whether the appeal itself is arguable; and whether without a stay, the appeal would be rendered nugatory if successful. The Appellant asserted that allowing an arguable appeal to become nugatory leaves a right without a remedy which the law does not permit. By its Notice of Motion dated 3rd July 2026, the Appellant seeks a stay of the orders issued on 29th May 2026 by the Senior Principal Magistrate's Court at Madiany pending the determination of both the application and the main appeal.
25. The Appellant noted that under settled jurisprudence including Stanley Kang'ethe Kinyanjui v Tony Ketter & 5 Others [2013] eKLR, Reliance Bank Ltd (In Liquidation) v Norlake Investments Ltd [2002] 1 EA 227 an d Peter Paul Mburu Ndururi v James Macharia Njore [2009] eKLR the two principles (arguability and the nugatory aspect) are conjunctive requiring the applicant to establish both.
26. The Appellant submitted that stay pending appeal from a subordinate court is governed by Order 42 Rule 6 of the Civil Procedure Rules 2010, which requires proof of substantial loss (Vishram Ravji Halai v Thornton & Turpin (1963) Ltd [1990] KLR 365; Kenya Shell Ltd v Kibiru [1986] KLR 410). Citing James Wangalwa & Another v Agnes Naliaka Cheseto [2013] eKLR and Butt v Rent Restriction Tribunal [1982] KLR 417 , the Appellant argued that showing the appeal would be rendered nugatory is the precise standard for establishing "substantial loss" under the rules. The Appellant emphasized that the threshold for an arguable appeal is modest: it need not be bound to succeed but must raise at least one bona fide question deserving of full judicial consideration (Kang'ethe Kinyanjui; Kenya Tea Growers Association & Another v KPAWU [2012] eKLR).
27. The Appellant submitted that its appeal raises multiple non-frivolous genuine legal questions: whether a court may issue an order binding and benefiting a non-party (Papaton Security Services Limited) that was never joined or heard; whether a person who is neither a candidate nor a tenderer has locus standi to challenge a procurement process in which they did not participate; whether a court can extend or revive a contract that had already expired by effluxion of time effectively rewriting the contract between parties; whether a court can grant a relief (extension of a contract) that was not pleaded or sought in the Plaint; whether a Magistrate’s Court has jurisdiction to entertain a public procurement dispute that the Public Procurement and Asset Disposal Act 2015 reserves exclusively for the Review Board, the PPRA, and the High Court; and whether the trial court in Madiany (Hon. J.J. Masiga, SPM) had territorial jurisdiction given that the Defendant is the County Government of Kakamega and the services were to be performed in Kakamega County. Relying on Nandi County Public Service Board & Another v Ketter & 461 Others [2025] KECA 71 (KLR) the Appellant highlighted that the Court of Appeal expressly held that questions of jurisdiction and orders benefiting non-parties are prima facie arguable grounds.
28. Citing Kang'ethe Kinyanjui , the Appellant submitted that "nugatory" means worthless, futile or trifling evaluated based on whether the consequences of refusing a stay are reversible and whether damages would provide an adequate remedy. The Appellant outlined three irreversible consequences if the stay were refused : the procurement process would remain frozen until the tender validity period expires after which an expired tender cannot be revived (Republic v PPARB ex parte National Irrigation Board) leaving a successful appeal with no live process to vindicate; the Appellant would be forced to pay substantial public funds to an unjoined non-party under an expired contract creating an unrecoverable drain on the public purse (Nandi County Public Service Board v Ketter) for which damages are unavailable and inadequate; Critical security for over 1,300 personnel, health facilities and public assets would remain dislocated, creating immediate risks to life and public property that money cannot compensate. Weighing the conflicting interests (Reliance Bank Ltd v Norlake Investments Ltd), the Appellant argued that the Respondent a stranger to the tender loses nothing if a stay is granted, whereas the Appellant and the public stand to suffer irreparable and irreversible loss if the stay is refused.
29. The Appellant maintained that it has satisfied both conjunctive requirements by establishing an arguable appeal and demonstrating substantial irreversible loss. The Appellant sought relief of court interalia that; that the orders of the Senior Principal Magistrate's Court at Madiany made on 29th May 2026 be stayed pending the hearing and determination of this appeal; that to maintain good order and avoid conflicting decisions, proceedings in Madiany SPMCC Civil Case No. E011 of 2026 be stayed pending the appeal; and that the Notice of Motion dated 3rd July 2026 be allowed as prayed.
30. The Respondent filed his submissions dated 21 st July 2026 opposing the Appellant's application dated 3rd July 2026 while fully supporting his application dated 16th July 2026. The Respondent submitted that the orders appealed against were made on 29th May 2026 by Hon. J.J. Masiga (SPM) at Madiany. That the Appellant was served on 2nd June 2026 and it filed its Memorandum of Appearance on 10th June 2026 through current counsel. That despite full awareness, the Appellant only filed this appeal on 6th July 2026, 38 days later. That s ection 79G of the Civil Procedure Act mandates that appeals from subordinate courts to the High Court SHALL be filed within 30 days. That the deadline to appeal was 28th June 2026 and that the appeal filed on 6th July 2026 was 8 days late without any leave or pending application for extension of time. Citing the Longman Dictionary of the English Language , counsel submitted that "shall" denotes a compulsory statutory command.
31. Relying on the Court of Appeal and Supreme Court
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