1. I have reviewed the application dated 10/12/2024 and considered the submissions made by counsel present. While it is true as submitted by the applicants that the monies owed are not owed to the regulator but to the contributors of the scheme, I have already pronounced myself that the petitioner’s role in these proceedings is justified by its position as a regulator and supervisor of retirement benefit schemes in Kenya.
2. It is undisputed that in determining whether to grant the orders sought by the applicant, the court must balance two competing considerations: (i) the applicant's right to pursue its appeal, which should not be unreasonably curtailed, and (ii) the need to safeguard the respondents’ interests during the pendency of the appeal. The applicants are required not only to demonstrate steps taken towards the filing of their appeal but also to provide sufficient security to protect the respondents.
3. In light of the foregoing, and having listened to the parties I note that parties have expressed their willingness to comply with any directions of the court regarding the provision of security. As such, in order to expedite the determination of the petition, I allow the application dated 10/12/2024 on the following condition:
i. The applicant shall deposit a sum of Kshs. 200,000,000/= (Two Hundred Million Only) into a joint, interest-earning account to be opened in the names of counsel for the applicant and counsel for the 1st respondent. Such deposit shall be made within 45 days of the date of this order.
ii. Should there be default of (i) above, the stay orders issued herein shall lapse automatically and the orders issued on 5/12/2024 shall take effect immediately without any further reference to this court.
4. The matter will proceed as earlier directed for mention on 27/2/2025. The costs shall await the outcome of the petition.
DATED, SIGNED AND DELIVERED IN NAIROBI
THIS 17TH DAY OF DECEMBER 2024.
F. MUGAMBI
JUDGE