- The company had hired Steg Consultants in an arbitration proceeding between it and the Office of the President with the Department of Defence.
- The consultation firm moved to the High Court seeking judgement of the said amount together with interest, and in March 2022 the prayer was allowed.
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The Court of Appeal has dismissed an application by a construction company seeking to suspend the execution of a ruling by the High Court.
The ruling in question delivered on March 25, 2022, directed Kay Construction Company Limited to pay Sh142,234,965.60 to Patrick Sagwa t/a Steg Consultants.
The company had hired Steg Consultants in an arbitration proceeding between it and the Office of the President with the Department of Defence.
After the arbitration, the consultation firm moved to the High Court seeking judgement of the aforementioned amount together with interest, and in March 2022 the prayer was allowed.
The amount given was 15 per cent of Sh335,605,244.69 awarded by the arbitrator.
When the execution of the judgement commenced, Kay Construction applied to suspend it on the basis that it was premature as payment was subject to receiving payment from the Ministry of Defence.
On August 24, 2023, Steg Consultants also moved to court where it sought review of the judgment to have the award of interest at commercial rates.
This was countered by yet another application for review of judgment by the construction company who argued that as per the judgment, the other firm was entitled to 15 per cent of the difference between Sh335,605,244.69 and Sh 70,000,000.
It added that this was the equivalent of Sh39,840,786.70 and not the decretal amount as awarded.
In a ruling on October 31, 2023, the High Court dismissed both of the construction company's applications for stay of execution and review.
Aggrieved, it moved to the Court of Appeal with the subject application pending hearing and determination of an appeal.
The court heard the application where only the company was represented.
Its Counsel submitted that the main appeal had already been filed, the execution of the judgment of the High Court would be premature and that the decretal amount would only be payable after receipt of payment from the government.
It further said Steg Consultant's application for review was still pending before the High Court and that the amount sought to be recovered in execution far surpassed what was properly due.
It was also urged that unless the orders sought are granted, the appeal will be rendered nugatory.
Despite having been served with the application, there was no response to the same and neither was Steg Consultants represented at the hearing despite service of notice of hearing.
Upon determination of the case, Appellate Judges Mohammed Warsame, Jessie Lessit and Gatembu Kairu noted that in its award for costs, the High Court did not order any of the parties to do anything or to refrain from doing anything.
"It is a negative order incapable of stay except as regards the award of costs," they added.
The Judges pointed out that the Counsel for the construction company had conceded that there was no appeal and no notice of appeal, in relation to the March 2022 judgement.
They added that without that, the appellate court had no jurisdiction to entertain the application to suspend the execution of the said ruling.
"In the result, we are not persuaded that the threshold for granting the orders sought has been met," the court ruled as it dismissed the application on lack of merit.