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Court of AppealPartially AllowedCivil Appeal (Application) No. 327 of 2006 (UR 181/2006)· [2007] KECA 103 (KLR)

REPUBLIC V NATIONAL ENVIRONMENTAL MANAGEMENT AUTHORITY Ex-parte SAM ODERA & 3 others [2007] KECA 103 (KLR)

Court of Appeal of Kenya
16 March 2007
Philip Kiptoo TunoiP.K. TunoiPWP.N. WakiJOJ.W. Onyango Otieno
2,237 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to fully suspend a ruling that quashed NEMA's approval of a phone mast, protecting tenants' health pending the appeal.

What this practically means

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Executive summary

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This is a unanimous ruling of the Court of Appeal at Nairobi (Tunoi, Waki and Onyango Otieno, JJA) on an application by EM Communications Limited under rule 5(2)(b) of the Court of Appeal Rules for a stay of execution pending an intended appeal against a judgment of Nyamu J (High Court Misc. Civil Appl. No. 400 of 2006, 14 December 2006). The High Court had quashed NEMA's approval of an Environmental Impact Assessment for the installation of a Base Transceiver Station on the roof of Dhanjay Apartments, Nairobi, and prohibited issuance of an EIA licence, finding procedural impropriety and non-compliance with EMCA, particularly section 58, section 59 and Regulations 17 and 21 on publication and public participation. The Court of Appeal restated the twin rule 5(2)(b) principles: the intended appeal must be arguable and, if stay is refused, the appeal must not be rendered nugatory. Both sides agreed the appeal was arguable, and the court welcomed wide ventilation of EMCA jurisprudence. On the nugatory test, the court weighed the balance of convenience: the tenants faced potentially irreversible and uncompensable health risks from electromagnetic exposure, whereas EM would at worst suffer monetary loss. The court declined a full stay, instead ordering that the status quo prevailing at the time of the High Court judgment remain until the appeal is determined, with costs of the application in the intended appeal. The decision did not disturb the High Court judgment; it preserved it pending appeal.

Key legal issues

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01

Test for stay of execution under rule 5(2)(b)

Holding

The twin principles are arguability of the intended appeal and whether refusal of the order would render the appeal nugatory.

Reasoning

The court restated the settled test: the applicant must show the intended appeal is not frivolous and that, absent a stay or injunction, the appeal, if successful, would be rendered nugatory. Both counsel agreed the appeal was arguable, so only the nugatory question required determination. The principles are applied flexibly to the facts of each case.

p. 3
02

Whether the intended appeal would be rendered nugatory in an environmental health matter

Holding

It would not; instead of a stay the court ordered maintenance of the status quo pending appeal, weighing the irreversible and uncompensable health risks to tenants against the applicants' merely monetary loss.

Reasoning

The court weighed the balance of convenience: if the tenants were exposed to unknown electromagnetic radiation effects, the harm could be irreversible and uncompensable, whereas the applicant would suffer only monetary loss. Given the special circumstances involving environmental matters and human health, the court tailored the relief as preservation of the status quo prevailing at delivery of the High Court judgment until the appeal is determined.

p. 4

Legal principles established

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  • An applicant under rule 5(2)(b) must satisfy the court that the intended appeal is arguable and that, if stay is refused, the appeal would be rendered nugatory; the principles are applied to the particular facts of each case.
  • In environmental matters affecting human health, an order of stay may be refused and the status quo maintained instead, since the effects of proceeding could be irreversible and uncompensable while the applicant would suffer only monetary loss.

Court orders

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  1. 1.The status quo prevailing as at the time the judgment of the superior court was delivered shall remain until the hearing and determination of the intended appeal
  2. 2.The costs of the application shall be in the intended appeal

Authorities

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Legislation

  • Environmental Management and Coordination Act (EMCA) 1999section 58
  • Environmental Management and Coordination Act (EMCA) 1999section 59
  • Environmental (Impact Assessment and Audit) RegulationsRegulation 17
  • Environmental (Impact Assessment and Audit) RegulationsRegulation 21
  • Court of Appeal Rulesrule 5(2)(b)

Cases cited (2)

  • Reliance Bank Ltd (in liquidation) vs. Norlake Investments Ltd
    [2002] 1 EA 227
  • Butt v Rent Restriction Tribunal
    [1982] KLR 417
On appeal from
High Court of Kenya at Nairobi
H.C.C. Misc. Civil Appl. No. 400 of 2006
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (application for stay of execution pending intended appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "REPUBLIC V NATIONAL ENVIRONMENTAL MANAGEMENT AUTHORITY Ex-parte SAM ODERA & 3 others [2007] KECA 103 (KLR)", Case Analysis (2007). Civil Appeal (Application) No. 327 of 2006 (UR 181/2006). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/103/eng@2007-03-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.