China Road & Bridge Corporation (K) Ltd v African Gas & Oil Co Ltd & 3 others [2016] KECA 76 (KLR)

African Gas relied on photographs said to show continuing construction works. The court examined the six photographs: four showed only equipment with no persons, making it impossible to tell whether work was going on; the other two showed people standing by, but African Gas itself acknowledged the parties had been allowed access to secure equipment. No evidence of initiatives suggestive of contempt was before the court, so no finding of violation could be made.

The court reviewed the ruling and draft grounds of appeal and identified multiple bona fide issues: whether title to compulsorily acquired properties had passed; whether the Land Act permitted possession before compensation in urgent necessity; whether injunctive conservatory orders were justified for liquidated-sum claims; whether African Gas' title was finally established; whether the deposit order was made without being sought or heard; and whether an undertaking on damages ought to have been made. It declined to elaborate further lest it prejudge the appeal.

The court noted that what renders an appeal nugatory depends on the circumstances of each case and that the court must weigh the respective hardship each party stands to suffer, not merely the ability to pay. The applicants averred massive daily losses from idle equipment and a mobilised workforce; the petitioners did not seriously dispute those averments, relying instead on the unproven contempt allegation. Both rule 5(2)(b) conditions were satisfied.