1. The application that is before this court for determination is the one dated 21st November, 2024 wherein the applicant seeks for the following orders: -
1) …Spent.
2) That any ruling and/or order closing this file or terminating further proceedings in this matter be and is hereby arrested and/or suspended.
3) That the Proposed Interested Party’s Application for joinder dated 21st June 2022 be heard on a priority basis.
2. The application is supported by the affidavit of the applicant.
3. This case has been mentioned severally at the behest of the Ex parte applicant and the respondent who informed the court that there was an appeal pending being CA no. E671 of 2022.
4. When the Ex parte applicant and the respondent informed the court that they had arrived at a consent in CA no. E671 of 2022 that they wanted this court to adopt as an order of the court.
5. The court did not adopt the consent since the Applicant asked the court not to proceed as such since he had not been served with the consent and that in any event, he had a pending application for joinder. In the interest of fairness, the court directed the Exparte applicant and the Respondent to serve the order and the consent upon all the parties.
6. The Respondent and the Exparte applicant oppose the application.
The proposed 5th Interested Party/Applicant’s case
7. It is the proposed 5th Interested Party/Applicant’s case that the Exparte Applicants do not want the matters arising herein to be determined on merit. He is aware that the basis for the push to close this matter is a purported consent order in Civil Appeal No. E671 of 2022.
8. He is troubled since he has an Application dated 22nd October 2024 seeking to set aside the illegal consent order of 12th February 2024. He strongly believes that the matter before the Court of Appeal is open, alive and well and it would be unfortunate and prejudicial to him for this court to close this matter. He invites this court to invoke Article 159 in rendering justice without undue regard to technicalities.
9. He would like the court to hear all parties and deliver substantive justice and without delay as demanded by Article 47 of the Constitution. He invites the court to note that the directors of the Ex Parte applicant have caused the collapse of the 4th Interested party and transfer of its assets to the Ex parte Applicant and now want to use the court process to sanitize the illegality through illegal consents aimed at prematurely terminating this case in order to avoid the substantive ventilation of the facts in issue.
10. It is further his case that for avoidance of doubt the court in its judgement noted as follows:
“13. The consent is couched in a manner that directs the Board to Act in a particular manner. Whereas the primary parties have the right to terminate the proceedings through a withdrawal of the suit or a settlement, this court cannot shut its eyes to facts on record that bring to the fore discordant voices, among members of the Board over the propriety of the consent and there is a need therefore to interrogate and confirm whether the consent has been reached through a procedural and regular resolution of the Board. It is worthy of note that the Respondent is a public Body. Its interests in this litigation are not private but of public interest. The need for utmost circumspection when considering a consent entered into by it cannot be gainsaid.”
11. He further argues that in HC PET NO E252 OF 2019 and Civil Appeal No E471 of 2021, the 4th Interested Party herein (Pevans East Africa Limited) whose directors are the same as the directors and owners of the Ex Parte Applicant herein (Milestone Games Limited) was the Petitioner and the Respondent herein (Betting Licensing Control Board) was a Respondent in that matter and the court made its detailed judgment finding that:
a. A bookmaker cannot operate on an expired license
b. The court cannot direct the Betting Control and Licensing Board on how to conduct its mandate donated by Section 4 of the Lotteries and Betting Act
c. There were national security concerns in denying Pevans East Africa the Licensee and held that it was not bound to disclose the said national security issues for obvious reasons.
d. The directors of Pevans East Africa were the architects of their own misfortune (being denied a license) and therefore the directors and owners of the Ex parte Applicant (Milestone Games Limited who are also the executive directors of Pevans East Africa Limited cannot pretend to be unaware of the Judgements in PET E252 of 2019 and E471 and 2019.
12. According to him it is interesting that in a turn of events counsel for BCLB Mr. Wanjohi with unbridled passion and in great effort tried to argue in this court for the interests of Milestone Games Limited to prejudice the interests of the Kenya local shareholders Paul Wanderi Ndungu and Asenath Wachera (combined 38%). Before Mr. Wanjohi became counsel for BCLB, the Previous Counsel Mr. Onsongo and all other Respondents had argued very strongly against granting Milestone Games a license relying on the judgment of the High Court in PET E252 of 2019 and Court of Appeal E471 of 2019 because of the violations of the Bettings and Lotteries Act.
13. In addition, the counsel for Safaricom PLC, Communication Authority of Kenya and Airtel Limited had put strong opposition to the granting of licenses also quoting the above two cases. They had argued strongly that Milestone was not allowed to use the trademark Sportpesa, the paybill numbers, the short codes, funds in the paybill numbers in the name of Pevans East Africa and the Communication Authority of Kenya had not approved the use of Pevans East Africa Limited's Paybills and short codes by Milestone Games Limited as prescribed by the Kenya Information and Communications Act. Safaricom had also declined paybills 955700 and 955100 that were in the name of Pevans East Africa Limited. Kenya Revenue Authority had also gone to court seeking money preservation orders citing the Proceeds of Crime and Anti Money Laundering Act and Income Tax Act. The court granted the said orders up to 5th December 2020. The submissions by the Respondents are before this court.
14. It is his case that a consent in the face of these matters is therefore concerning and unlawful.
15. He argues that there are affidavits of the majority directors Joy Masinde, Sabrina Kanini, Paul Njaga & Peter Kanaiya then directors of the Respondent BCLB herein purporting to sign a consent, this court has been made aware that there was no meeting of the BCLB to give a license to the Ex parte Applicant neither were they aware or did they agree to sign a consent in order to purge the contempt.
16. It is his case that in Petition No 251 of 2019 as well as Civil Appeal No E471 of 2019, this court as well as the Court of Appeal held that the executive directors of the 4th Interested Party had caused its downfall and the court could not sanitize trading using an illegal license yet the very same executive directors are before this court advancing the interests of the Ex parte Applicant and purporting to represent the interests of the 4th Interested Party where the proposed Interested Party together with Asenath Wachera are cumulatively 38% shareholders whose interests have been trampled upon and continue to be prejudiced by the Ex parte Applicant and the common/shared executive directors.
17. It is his case that these shared/common executive directors are the very persons who want to have this file closed so that their misdeeds are not unraveled.
18. He places heavy reliance in the case of Peter Makau Musyoka & 19 others (Suing on their own behalf and on behalf of the Mui Coal Basin Local Community) v Permanent Secretary Ministry of Energy & 14 others [2014] eKLR Constitutional Petition 305 of 2012 wherein the court declined an application to withdraw a public interest suit as doing so would have left grave unresolved issues.
19. According to him allowing the Ex parte Applicant to illegally consent to withdraw this matter will leave a myriad of grave unresolved issues which the inheriting public interest demands determination on merits.
20. He further relies on a supplementary affidavit dated 15th January, 2025 and filed on 16th January, 2025. He states as follows: -
“
1) That I wish to state as follows in response to the grounds of opposition by the respondent dated 15th January 2025 and filed on 16th January 2025.
2) That in particular, I take the view that this court ought to note the very disturbing conduct of the State Law counsel Mr Munene Wanjohi who seems hell bent in advancing the interest of the Milestone Games Limited and has abandoned the public interest responsibility bestowed on the Betting Control and Licencing Board as prescribed by the Betting Lotteries and Gaming Act (Cap 131). Mr Munene Wanjohi seems incapable to distinguish between what seems to be his personal relationship with Milestone Games Limited, which he has passionately and consistently pursued while trashing the public interest obligation he is supposed to safeguard and also the safe guard my right to property of which the 4th respondent's director unlawfully transferred the assets of the company to Milestone Games Limited, which they also own. I wish to draw the attention of this court to the strong arguments against the illegalities which were filed by his predecessor Mr Oguso and also the individual directors of BCLB against the licensing of Milestone Games Limited using the stolen assets of Pevans East Africa Limited. I further wish to draw the attention of this court that four out of seven directors of the board swore affidavits stating that there was no meeting of the board to approve the consent, since they held they had acted in accordance with the law and also that the court cannot direct the board on issuance of licenses. In this instant matter, Mr Wanjohi has been starkly enabling injustice in what he has disguised as an attempt to purge contempt proceedings against the directors while he has full knowledge of the following:
i. That the court falsely in a ruling dated 21st February 2022 Delivered by justice Nyamweya purported to hold the directors of BCLB for contempt alleging that they had defied her court order.
ii. That the said contempt was contingent on the happenings of 3rd to 4th December and that the said order was extracted on 4th December 2022 and could not have been served on the directors on 3rd December. The Judge also lied that she had received the application on 2nd December 2020, whereas the application was filed on 3rd December 2020 at 9:43 am.
iii. While the court order was extracted on 4th December 2020 and it is clear it was not practically possible to serve it on 3 December 2020, the judge proceeded to purport to hold the BCLB directors for contempt in her paragraph 40 of her ruling, where she held that BCLB directors were in contempt. This is clearly complicity to ensure that the BCLB was coerced to enter into a consent with ex parte applicant to supposedly purge the said contempt by signing the defective consent, which the majority of directors rejected
iv. It is clear that Wanjohi has been advancing other interests as he continues to enable travesty of justice as he agrees without questioning the various outright injustices that led to the directors being held for contempt. The said contempt proceedings were unlawfully engineered to perpetuate injustice against the directors of BCLB through lies and illegal machinations. This has worked against my interest and those of Asenath Wacera and those of Pevans East Africa Limited where we hold a combined shareholding of 38%, whose assets have been expropriated by the common directors who owned 95% of the shares at Milestone Games Limited as at that time this suit was filed and when the assets were carted away.
v. The affidavit of Cyrus Maina dated 17-December 2020 and drawn by Mr Wanjohi's predecessor, one MR Oguso clearly enumerated the above illegalities, but Mr Wanjohi continues to controvert the same issues his colleague had opposed on behalf of the BCLB.
vi. The majority directors of BCLB swore affidavits which are on record in this court which showed clearly that BCLB had not approved signing of the consent to enable purging of the unlawful consent proceedings.
vii. That the directors have since left BCLB and the contempt proceedings are no longer enforceable and therefore signing the said consent serves absolutely no other purpose, except backdating a licence. which is unlawful.
21. He questions why Wanjohi would take a position that conflicts with the majority of the BCLB board? Who is he representing? It is urged that Mr Wanjohi, should know that as Kenyans him and Asenath are entitled to their property vested in their 38% shareholding in Pevans East Africa Limited, which was misappropriated to Milestone Games Limited. He invites this honourable court to address itself on whether a state law officer would take a position that contradicts a majority of a state board that he represents in court.
22. He raises concerns that Mr Wanjohi is feigning ignorance that he is not aware that the courts in Constitutional petition E252 of 2019 and the Subsequent Appeal E471 of 2019 filed by Pevans East Africa Limited, where the high court and the court appeal held that;
a. That the court cannot direct BCLB to issue a licence.
b. That one cannot operate on an expired licence.
c. That a licence cannot be back dated.
23. It is his case that Mr Wanjohi cannot feign ignorance that for 2021 and 2022 Milestone Games Limited traded and advertised to be holding a licence 00205, while the fact was that licence for 2021 and 2022 had been issued to Bollywood Casino. The BCLB had paid various public adverts to inform the public of this illegality.
24. He takes issue as to why Mr Wanjohi also feigning ignorance that Milestone Games Limited's licence No. 00448 for 2022/2023 was cancelled in case JR E138 of 2022, and while the Court of Appeal granted a stay the case is still live in that court.
25. He argues that a licence cannot be backdated while the matter is still alive at the Court of Appeal.
26. It is averred that the application is competent and seeks to remedy the mischief and abuse of court by the Applicant and the Respondent, where they have always intended to defeat justice and ended up signing a non-existent consent that had been rejected by the Court of Appeal on 2nd October 2023 and by this honourable court on September 2022.
27. He believes that this court is properly seized of jurisdiction since my application dated 2nd January 2025 in E671, challenging the ruling of 12th February 2024 and dated 2nd January 2025 was found to be meritorious by the Court of Appeal and was certified as urgent on 14 January 2025. The Respondent herein was served with the court directions and is well aware of the same.
28. His application was certified urgent by the Court of Appeal and this court has no option but to proceed and hear his joinder application since the impugned order issued on 12th February 2024 has been disturbed and cannot be implemented by this honourable.
29. The directions of the Court of Appeal are as follows;
a. That this honourable court is further bound by the order of the Court of Appeal issued on 2nd October 2023, where a three-judge bench rejected the consent dated 1st August 2023 signed by two parties only, that is the Ex parte Applicant herein and the respondent. That being the case this court cannot disobey the order by that bench as it is the only order that has not been challenged and is still in force to date.
b. This honourable court rejected the earlier consent dated 26th may 2022, a position that was upheld by the court of appeal's bench sitting on 2nd October 2023.
30. It is his case that his application dated 21st November 2024 is not an appeal of the impugned Court of Appeal order dated 12th February 2024 for the following reasons:
“
a. That I have sought review of the order at the court of appeal and therefore the order remains disturbed.
b. That the impugned order was procured through illegal machinations which involved bypassing the order of the same court issued on 2nd October 2023 which remains unchallenged to date.
c. That this court is bound by the unchallenged order dated 2nd October 2023 and it is misleading to purport that I am appealing the court order of 12th February 2024, which in any case is irregular and unenforceable having being issued while there was a valid order that had rejected the impugned consent. Since the said consent was adopted after it had been rejected and the order has never been challenged, the court of appeal on 12th February issued an illegal order, there being no consent to adopt.”
31. It is his case that his application actually upholds the doctrine of Hierarchy of Courts, the order of the court of appeal dated 2nd October 2023 is still in force, having not been challenged by the Respondent or any other party herein and is binding on this court. It is urged that the Respondent is actually inviting this court to defy the order of the Court of Appeal dated 2nd October 2023.
32. It is also his case that this court is not functus officio for the following reasons;
a. The order of the Court of Appeal dated 2nd October 2023 is valid to date and has never been challenged and is therefore binding on this court.
b. The impugned order being relied on by the Respondent is unlawful having purported to adopt an absent consent that was rejected on 2nd October 2023 and was never filed again in the same court.
33. He submits that the Proposed Interested Party is not a stranger to these proceedings, since it is his application dated 21st July 2022 that informed this court to reject the impugned consent dated 26th May 2022, which led to the appeal. Further that in any case it is the Respondent and the Ex parte Applicant who have been deploying under hand tactics to deny him a right to be heard.
34. He believes that his application is not based on contradictory allegations, as he is a shareholder in the 4th Interested Party on whose behalf and benefit that he made his application for joinder. He urges that his shareholding in the 4th interested party is not a contested issue and neither is it contradictory or based on mere belief, suspicion or any speculation. Furthermore, that the public interest nature of the matter as read with Articles 22 and 258 of the Constitution demands a liberal approach to the question of locus and joinder of parties
35. He believes that his application is not an abuse of court process as vindicated by the Court Appeal's instant certification of his application dated 2nd January 2025 challenging the impugned order of 12th February 2025 as urgent.
36. The Applicant/5th Intended Interested Party also filed submissions wherein he raised the following issues for determination;
a) Whether delay in hearing the joinder Application has been inordinate.
b) Whether there is any credible reason why the joinder application has not been determined to this day;
c) Whether the proceedings before the court of appeal are a bar to the court handling the joinder application;
d) Whether there is any legitimate stay order barring this court from continuing to handle this matter;
e) Whether it is in the interests of justice for the court to handle the application before it expeditiously;
f) Whether the Applicant ought to be granted costs of the Application.
Whether delay in hearing the Joinder Application has been inordinate.
37. He submits that there is absolutely no credible reason why the joinder application dated 21st June 2022 has been pending before the court for over two years despite the fact that he is the only party that has demonstrable interest in the 4th Interested Party.
38. To buttress his argument, he relies on the case of Mwangi S. Kimenyi v Attorney General & Kenya Institute for Public Policy Search and Analysis (KIPRA) [2014] KEHC 4220 (KLR) where the court defined inordinate delay in the following terms
“There is no precise measure of what amounts to inordinate delay. ... Nevertheless, inordinate delay should not be difficult to ascertain once it occurs; the litmus test being that it should be an amount of delay which leads the court to an inescapable conclusion that it is inordinate and therefore, inexcusable. Caution is, however, advised for courts not to take the word ‘’inordinate’’ in its dictionary meaning, but to apply it in the sense of excessive as compared to normality.
39. He submits that pending an application for joinder for over two years without setting it down for hearing is inordinate delay particularly considering that the delay has led to the consent that has been adopted illegally being concluded without the knowledge of and participation of the proposed interested party.
40. It is also his submission that this court ought to rise to the occasion and settle the participation of the Proposed Interested Party in these proceedings once and for all.
41. Reliance is further placed in the case of Naftali Opondo Onyango v National Bank of Kenya Ltd (Civil Case 1550 of 2001)[2005] KEHC 1746 (KLR) (Civ) (11 July 2005) (Ruling) where the court stated that the second consideration is whether the delay is excusable.
42. He invokes Articles 47 and 48 which enshrine the right to fair administrative action and access to justice. To the extent that the joinder has not been dealt with expeditiously, the right to administrative action that is fair and expeditious has been violated
43. He submits that there is a real risk, with the closure of this file, that this matter may be closed without the issues herein ever being determined on merit.
Whether there is any credible reason why the joinder application has not been determined to this day;
44. On this issue, it is submitted that there is no reason why the application has not been determined to this day. The court is urged to note that the Ex parte Applicant has attempted to make reference to the existence of stay orders.
45. The Applicant submits that this is not true for reasons that the orders of stay given by Justice Ndung'u on 24th October 2022 were conditional on the Ex parte Applicant providing an indemnity within three (3) days considering the potential consequences of the stay. The said indemnity it is urged was never provided by the Ex parte Applicant. The court had ordered as follows:
“In the foregoing and for reasons above stated, I am satisfied that a stay of proceedings herein would serve the interests of justice. I accordingly allow a stay of proceedings as prayed. Such stay shall be for a period of 90 days. The stay shall be conditional to a written undertaking by the applicant to indemnify any of the parties of any loss that would arise resultant to the stay. The undertaking to be executed within 3 days hereof.” (Emphasis supplied)
46. It is urged that other than the ruling delivered on 10th February 2023 in Civil Application No. E351 of 2022, the proceedings for stay pending appeal have never resulted in the issuance of an order of stay pending appeal. This is a point that has never been brought to the fore and he urges the court to consider it.
47. He submits that there is absolutely no bar to the court proceeding to grant the orders sought as there is no stay. Of importance he urges the court to note that the proceedings before the Court of Appeal are alive and not concluded as alleged by the Ex parte Applicant.
48. This being the case, he urges the court to proceed and issue express orders that the joinder issue that has been strategically held in abeyance to enable the Ex parte Applicant to continue enjoying status quo without any orders.
49. He draws the attention of the court to the fact that the Ex parte applicant continues to trade in an illegal license using the assets of the 4th Interested Party which were illegally acquired and spirited to the Ex parte Applicant.
50. It is submitted that this ought to be reason enough for this court to dispense with the joinder application to ensure there is equality of arms. Further that as it stands, the interests of the 4th interested party are orphaned and marooned as a result of procedural technicalities and abuse of court process.
51. He urges the court to hold that the delay is not just inordinate but is also inexcusable and there is every reason why the court ought to proceed to determine the application herein.
52. He places reliance on the grounds below:
a) No reason at all, let alone a credible one, has been given as to why the proposed interested party should not be joined to these proceedings by the court handling the application for joinder dated 21st June 2022 which has been pending for over two (2) years.
b) The proposed interested party is still a 17% shareholder of the 4th Interested Party and initial challenges were laid to rest by the ruling in HCOMM E002 OF 2023 vide the ruling of 2nd October 2023.
c) Furthermore, the interests of the 4th Interested Party are still unrepresented as the executive directors support the Ex parte Applicant in the plunder of the assets of the 4th Interested Party and in the attempts to illegally transfer the assets and license to trade to the Ex parte Applicant.
d) The Ex parte Applicant has not challenged the fact that there is no stay of proceedings.
53. It is urged that the effect of settling this matter on the terms of the said consent would be a circumvention of the law and due process as this court cannot direct the Respondent on how it does its work under Section 4 of the Betting and Lotteries Act.
54. Further that the high court in Pet No E252 of 2019 and Court of Appeal in Civil Appeal No. E251 of 2021 and Civil Appeal E471 were categorical that the Respondent’s mandate was not subject to control by any person and that the court could not usurp this mandate by ordering issuance of a license to the Ex parte Applicant.
55. It is also urged that the rationale behind this is that the court does not have the tools with which to vet and appraise an applicant for a bookmaker’s license and the security concerns and deportation of the executive directors of the 4th Interested party (now shareholders and/or directors of the Ex parte Applicant).
56. The Applicant also urges that the evidence before this court vide the affidavits of Sabrina Kanini, Joy Masinde, Paul Njaga and Peter Kanaiya points to the irresistible conclusion that there was never a meeting of the Respondent where it was resolved that the purported consent to settle the matter had been passed.
57. It is also stated that it is pertinent to underscore that succeeding directors, appointed subsequent to the dissolution of the preceding board, lack the legal authority to authorize the issuance of a license pertaining to a period during which they were not serving as members of the board. Legally speaking, a newly constituted board cannot pass a valid resolution to ratify or validate a license relating to a period predating their tenure.
58. According to the Applicant it is noteworthy that the consent order was procured based on threats of contempt proceedings on account of an order given by Justice Nyamweya.
59. It is also stated that it is noteworthy that the court indicated that it received an application on 2nd December 2020, while in actual fact, it was filed on 3rd December 2020 at 10.43am. In the same vein counsel for the Ex parte Applicant is aid to have misled the court that he served BCLB with a Court order on the night of 3rd December 2020 while, in fact, the order was dated 4th December 2020.
60. He submits that in effect, there was no reason for the purported consent to be signed to purge a consent.
61. He further submits that it has since been ascertained, upon reviewing the CTS system, that no consent has been duly filed before this Honourable Court.
62. Further that the State Law Office improperly submitted a document that was neither paid for nor formally lodged, rendering it inadmissible and not properly before this Court as of the date of these submissions.
63. Consequently, that the Court of Appeal was misled into adopting a purported consent that was irregularly introduced at the appellate level and as such, the consent adopted by the Court of Appeal is not binding on this Honourable Court, as it has never been properly placed before it and has therefore not settled this matter.
64. He urges this court to find it appropriate to proceed to handle the joinder application expeditiously.
Whether the proceedings before the court of appeal are a bar to the court handling the joinder application
65. It is his submission that the proceedings before the Court of Appeal are alive pursuant to the application for setting aside the illegal and fraudulent consent. Further that as demonstrated in the Application filed herewith, the Court of Appeal is seized of the Application dated 22nd October 2024 and it is in the interest of justice for this court to proceed to hear the joinder application pending the determination of that application.
66. It is his further submission that, this application is distinct from the one before the Court of Appeal.
Whether there is any legitimate stay order barring this court from continuing to handle this matter;
67. He submits that there is no stay order that is in force that this court has been shown demonstrating that there is a bar to the determination of the proceedings herein or in the Court of Appeal.
68. He submits that the consent adopted at the Court of Appeal has never been lodged in this court and the Court of appeal was misled to adopt a consent that was not before this court.
69. It is also his case that considering the sensitive nature of the matter herein and the continuing violations of the law by the Ex parte Applicant, it is only proper that this court as a temple of justice proceeds to dispense justice expeditiously in accordance with Articles 47 and 48 of the Constitution. Article 47 is said to enjoin this court to administer justice expeditiously.
70. It provides thus:
47. Fair administrative action
1. Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.
Whether it is in the interests of justice for the court to handle the application before it expeditiously;
71. He submits that each aspect of the matter before this court calls out for justice for the following reasons:
a. The simple joinder application has been pending for over two years.
b. These proceedings were commenced by the very Ex parte Applicant who has thereafter used all technical strategies to frustrate the just determination of this matter.
c. The proposed Interested Party’s submissions are the only reason why the Learned Justice A. Ndung’u refused to adopt the illegal consent, and after that refusal, the Ex parte Applicant rushed to the Court of Appeal with the intention to surreptitiously conclude the matter vide an illegal consent, in a forum where the proposed interested party could not participate.
d. The consent before the Court of Appeal was illegally crafted and recorded without the participation of all necessary parties and cannot, therefore, be the basis for stalling these proceedings as it is, prima facie, illegal. It cannot also be said to be binding as the consent is impugned vide the application of 22nd October 2024.
e. As the matter continues to stall with no progress before this court, the Ex parte Applicant continues to trade illegally without any intervention. Furthermore, the 4th Interested Party continues to suffer as its assets are being used pursuant to an illegal scheme of fraud and takeover of assets.
f. It is now over 4 years since the primary judicial review matter itself was instituted and it is necessary and in the interests of justice that it is determined with the input of all parties herein.
g. There is no prejudice that any party will suffer in the event the justice prevails but as it stands, technicalities are being used to enable an illegal licensee to continue to operate. Furthermore, legitimizing the illegal consent is tantamount to usurping the role of the Respondent in licensing bookmakers as per section 4 of the Gaming and Lotteries Act.
Whether the Applicant ought to be granted costs of the Application.
72. He submits that the court to award the costs to the Applicant. It is stated that he has already lost years to the Ex parte Applicant in its connivance with the executive directors of the 4th Interested Party who are also shareholders in the Ex parte Applicant
73. The Applicant urges that costs are at the discretion of the Court and usually follow the event as captured under Section 27(1) of the Civil Procedure Act.
74. Reliance is placed in the decision of this court in Orix Oil (Kenya) Limited V Paul Kabeu & 2 Other [2014] eKLR where the court stated:
“…the court should have been guided by the law that costs follow the event, and the Plaintiff being the successful party should ordinarily be awarded costs unless its conduct is such that it would be denied the costs or the successful issue was not attracting costs.
He submits that none of those deviant factors are present in this case and the court would still have awarded costs to the Plaintiff, which I do.”
The Respondent’s Case;
75. The application is opposed by way of a Replying Affidavit of Benard Chauro who argues that the Applicant seeks to challenge an order made by the Court of Appeal before this court yet he has already made another application for review before that very Court of Appeal, which application was not certified urgent by the said Court.
76. It is the Respondent’s case that the Court of Appeal vide an Order dated 12th February 2024 determined the present proceedings and the matter that was pending before this court was therefore duly settled between the parties the moment the Order of the Honourable Court was issued.
77. Further that there are no proceedings upon which the Applicant would be seeking the leave of this Honourable Court to be enjoined to.
78. It is its case that the Order is binding on all parties. Also, that since the Applicant has filed an application for review of the orders of the Court of Appeal, he cannot on the same limb make an almost similar application before this Honourable Court.
79. The Respondent argues that the Applicant is not and was not a party to the proceedings before the High Court and the Court of Appeal and that the matters having been determined by the Court of Appeal, there is no basis upon which the present application can be brought by a party to join proceedings which have been settled and equally on the same application seek substantive orders in proceedings that have been settled.
80. The Court of Appeal is said to have vide a ruling dated 10th February 2023, declined to enjoin the Applicant herein to the Appeal before it.
81. According to the Respondent the Applicant's application for joinder is dated 21st June 2022 and not 21st June 2024 as stated in the Applicant's supporting affidavit dated 21st November 2024. Also, that the said application for joinder was initially stayed by Justice Ndungu and thereafter all proceedings in this matter were stayed by the Court of Appeal.
82. It is The Respondent’s case that this case that the main parties to this suit have settled the dispute between them thus there is nothing left to litigate in this matter.
The 4th Interested Party’s case;
81.It opposes the application on the ground that the dispute between the Ex Parte Applicant and the Respondent having been
settled by a consent order recorded in Court of Appeal CA e671 of 2022, this
Honourable Court is functus officio.
82.It also advances the ground that this Court lacks any further authority to hear and determine the substantive matter herein, and joining the Applicant to the proceedings would not serve any useful purpose.
83.It further raises the ground that the orders prayed for are prejudicial to the Applicant and Respondent and to the 4th Interested Party and that the Application is a blatant abuse of court process and should be dismissed.
Analysis and determination;
Issues for determination:
84. Upon perusing the Application, the Affidavits and the rival submissions alongside the authorities cited by parties, this court finds the following to be the issues for determination;
1) Whether this court can arrest and/or suspend any ruling and/or order closing this file or terminating further proceedings in this matter.
2) Whether the 5th Proposed Interested Party’s Application for joinder dated 21st June 2022 should be heard on a priority basis.
85.It is not in dispute that there is a consent between the Ex parte Applicant and the Respondent that was recorded in the Court of Appeal in Civil Appeal No. CA no. E671 of 2022.There is further no dispute that there is an order emanating from the consent dated 12th February 2024. It is further not in dispute that the Applicant/5th Intended Interested Party has a pending application for Joinder in this suit dated 21st June 2022.
86.It is also not in dispute that the Ex parte Applicant and the Respondent moved the court to record the consent in this court so as to settle this suit. The court is yet to adopt the as an order of the court.
87.It is further not in dispute that the Applicant/5th Intended Interested party has a pending application in the Court of Appeal where he is challenging this consent.
88.In determining the application before me, this court is driven by Article 47 of the constitution in propelling, fair administrative action, Article 48 on the Right to Access Justice, Article 50 on the Right to Fair Hearing and Article 159 on Judicial Authority.
89.Having laid out the foregoing background, the court would like it to be noted in clear terms that all that it is attending to is the issue of the timing of the adoption of the consent. This Court is not in any way clothed with jurisdiction to interfering or to set aside the consent and the order of the Court of Appeal which remain firm and intact orders.
90.The Applicant/5th Intended Interested Party has demonstrated that he will suffer prejudice if the consent and the order are adopted as an order of the court at this juncture.
91.On their part, it is this court’s finding and I so hold that the Respondent and the Ex part Applicant have not demonstrated the prejudice that they will suffer in the event the adoption of the consent is delayed so as to pave way for the determination of the pending application at the Court of Appeal which seeks to set aside the consent.
92.By granting the Applicant/5th Intended Interested Party the order to arrest or postpone the closure of this suit, this court will not be setting aside the consent but instead it will be promoting Fair Administrative Action under Article 47 of the Constitution as read alongside Article 159 of the Constitution.
On the second issue:
93.This court cannot delve into the merits of the joinder application at this juncture. I make a finding that the court lacks the capacity to issue directions for the hearing of the 5th Intended Interested Parties’ application for Joinder in light of the existence of the consent and I hold.
Order;
1) An order is hereby issued arresting and/or suspending the ruling and/or order closing this file or terminating further proceedings in this matter.
2) The 5th Proposed Interested Party’s Application for joinder dated 21st June 2022 shall abide the outcome of The Court of Appeal.