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JudgmentIndependent Policing Oversight Authority VS JOHN NJAGI KIRAGU6 min read

Independent Policing Oversight Authority VS JOHN NJAGI KIRAGU

High Court at Embu High Court · · Lucy Njuguna



  1. For determination is a notice of motion dated 20th September 2024 through which the applicant seeks the following orders:
    1. Spent;
    2. Spent;
    3. That this appeal be reinstated for hearing and determination on merit;
    4. That the honourable court be pleased to vacate the orders of 18th July 2024 and re-admit the appeal and the appeal be set down for hearing interparties on merit;
    5. That this court make any such orders and issue any such relief as it may deem just to grant in the interest of justice; and
    6. That the costs of the application be in the cause. 
  2. On 18th July 2024, the court ordered the appellant to file a record of appeal within 7 days failing which the appeal shall stand dismissed. On 18th September 2024 when the matter came up for directions, the appellant had not filed the record of appeal and the court ordered that the appeal stood dismissed. The applicant advocate states in this application that the delay in filing the record of appeal was inadvertent and excusable as it was occasioned by failure of the court e-filing system for several days when the 7-day period was running. He deposed that the appellant is still keen on prosecuting the appeal and that the mistakes of counsel should not be visited on the client. He stated that stay of execution is also necessary since any execution will be levied against public resources.
  3. The respondent filed a replying affidavit stating that the applicant has not demonstrated that he took reasonable steps to follow up with the court’s registry on filing of the record of appeal when the e-filing system failed. That stay of execution is not justified since the applicant has not satisfied the requirements for granting of stay and no security for performance has been offered. That the respondent will suffer great prejudice if the stay order is granted without the option of security for performance. He deposed that he is being denied the fruits of his judgment and he urged the court to dismiss the application.
  4. The application was canvassed by way of written submissions.
  5. The applicant relied on Order 42 Rule 6 of the Civil Procedure Rules and the cases of Ivita v Kyumbu [1975] eKLR and John Nahashon Mwangi v Kenya Finance Bank Limited (In Liquidation) (2015) eKLR and urged the court to grant stay orders to avert the prejudice that will be suffered when the execution is levied against public coffers. It also relied on Order 51 Rule 6 Civil Procedure Rules and urged the court to enlarge time for the appeal to be heard on merit.
  6. The respondent relied on the case of Husamuddin Gulamhussein Pothiwalla v Kidogo Basi Housing Co-operative Society Ltd & 31 others [2003] KECA 172 (KLR) where the court discussed the factors to consider before granting an order for extension of time to file an appeal. That the appeal herein has no merit and the delay in filing this application has not been sufficiently explained. Further reliance was placed on order 42 Rule 6 of the Civil Procedure Rules and he argued that the appellant does not deserve to be granted stay orders because they have not offered any security for performance of the Decree.  He argued that the orders sought are prejudicial to him since the appellant is not keen on prosecuting their appeal, hence denying him the fruits of his judgment. For this argument, he relied on the cases of Nyatera v Nyakundi (Civil Appeal E033 of 2022) [2023] KEHC 24532 (KLR) and Gianfranco Manenthi & another v Africa Merchant Assurance Company Ltd [2019] eKLR. He urged the court to dismiss the application.
  7. From the foregoing, the issue for determination is whether or not the ruling of this court issued on 18th July 2024 should be reviewed.
  8. Review is provided for under Section 80 of the Civil Procedure Act as follows:

“Any person who considers himself aggrieved—

(a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or

(b) by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.”

Similarly, Order 45 Rule 1 of the Civil Procedure Rules provides:

(1) Any person considering himself aggrieved—

(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or

(b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.

  1. There are only 3 factors for the court to consider before reviewing its findings, these are:
    1. That there has been discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed; or
    2. That there has been some mistake or error apparent on the face of the record; or
    3. Any other sufficient reason.
  2. The appellant was ordered by the court to file its record of appeal within 21 days but it did not comply. It explained that the court’s e-filing platform was not working for several days within the 7 days given by the court, thus they filed the document late. That it sought the assistance of the court’s registry to file the record of appeal by which time the allowed period had ended. The respondent argued that the appellant had not sufficiently demonstrated that it sought help from the registry even though this has been pleaded.
  3. The orders of the court were automatically vacated within the 7 days provided.  The condition set by the court was the court’s way of dispensing justice to the respondent while ensuring that the applicant prioritizes prosecuting this appeal. As it were, the applicant did not meet the condition and so the orders were automatically vacated. Orders of the court are meant to be obeyed otherwise the disobeying parties are to be held in contempt. In the case of Republic v County Chief Officer, Finance & Economic Planning, Nairobi City County Ex Parte Stanley Muturi [2018] eKLR it was held:

“Court orders are not meant for cosmetic purposes. They are serious decisions that are meant to be and ought to be complied with strictly.”

  1. The appellant was granted stay of execution on 22nd May 2024 but this order was to last until determination of the appeal which now stands dismissed. The conduct of the appellant denotes its lack of keenness to finalize litigation in this matter. The appellant’s conducts seeks to deny the respondent his rights to enjoy the fruits of his judgment. It is trite that courts cannot and should not make orders in vain as was the sentiment in the case of B. V. Attorney General [2004] 1 KLR 431 where it was held thus:

“The Court does not, and ought not to be seen to, make Orders in vain; otherwise, the Court would be exposed to ridicule, and no agency of the Constitutional order would then be left in place to serve as a guarantee for legality, and for the rights of all people.”

  1. That being said, in light of section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, I am not persuaded that the order for review should be granted. In the same breadth, the stay orders cannot be granted in accordance with Order 42 Rule 6 of the Civil Procedure Code. At the very least, if the order was to be granted albeit conditionally, the appellant has already stated that any security demanded would have to be drawn from public funds. In my view, the applicant, being a body run by taxpayer’s funds ought to conduct itself better in order to avoid wastage of public funds on litigation that can be minimized or avoided altogether. I find no good faith from the appellant through this application.
  2. Therefore, I find that the application lacks merit and the same is hereby dismissed with costs to the respondent.
  3. It is so ordered.

Delivered, dated and signed at Embu this 4th day of December, 2024.


    Independent Policing Oversight Authority VS JOHN NJAGI KIRAGU Independent Policing Oversight Authority VS JOHN NJAGI KIRAGU