Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Application No. 70 of 2015· [2016] KECA 621 (KLR)

Bob And Ursulla Brenneisen & 7 others v Shanzu Waterfront Limited [2016] KECA 621 (KLR)

Court of Appeal
22 April 2016
AMAsike MakhandiaWilliam OukoW. OukoKMK. M'inoti
1,782 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal refused to stop a coastal flat development because the objectors could not show the harm would be permanent, proving that proving irreparable damage is essential.

What this practically means

#

Executive summary

#
This is a ruling of the Court of Appeal at Mombasa (Makhandia, Ouko and M'inoti, JJ.A.) on an application under sections 3A and 3B of the Appellate Jurisdiction Act and rule 5(2)(b) of the Court's rules for an injunction pending appeal. The eight applicant pairs, owners of properties adjacent to the respondent's land, sought to restrain the respondent from continuing construction of ten blocks of flats pending an intended appeal against a ruling of Omollo, J. in the Environment and Land Court. That ruling had declined a similar injunction but granted a conditional one for 90 days, directing NEMA to conduct an environmental audit at the respondent's expense. The High Court had also found no prima facie case because the applicants failed to demonstrate the invalidity of the County Government of Mombasa's approvals, having not enjoined the County or sought nullification of the approvals. The Court of Appeal restated the twin principles in Stanley Kangethe Kinyanjui v. Tony Ketter: an applicant must establish both an arguable appeal and that the appeal would be rendered nugatory if the order is denied. The court found the intended appeal arguable, accepting grounds including that the judge granted orders not sought and acted while functus officio. However, on the second limb, the applicants failed to show how the appeal would be rendered nugatory: they did not demonstrate irreparable destruction of flora and fauna, and the respondent's claim that these could be replanted or compensated by damages was uncontroverted. Both limbs must be satisfied. The application was dismissed with costs to the respondent.

Key legal issues

#
01

Whether the intended appeal was arguable

Holding

The court found the grounds arguable, including that the judge granted orders not sought and that the court may have become functus officio.

Reasoning

The court applied the settled rule that a single bona fide arguable ground suffices. The grounds advanced - that the learned judge failed to appreciate the evidence, granted orders not sought in the application, and misapprehended the law on functus officio - were held not to be frivolous and would be tested at the hearing of the intended appeal.

p. 4
02

Whether the intended appeal would be rendered nugatory if the injunction was denied

Holding

The applicants failed to demonstrate that damage to the flora, fauna and eco-system would be irreparable or irreversible.

Reasoning

The court held that the applicants did not show the manner of the feared destruction or that the eco-system comprised rare or irreplaceable species. The respondent's assertion that flora and fauna could be replaced by replanting or compensated by damages was uncontroverted on the record, so the second limb of the rule 5(2)(b) test failed.

p. 4

Legal principles established

#
  • An applicant under rule 5(2)(b) must satisfy both the arguability and the nugatory-venue limbs; failure on either is fatal to the application.

Court orders

#
  1. 1.Dismissal of the applicants' application for an injunction pending appeal

Authorities

#

Legislation

  • Appellate Jurisdiction Actsections 3A and 3B
  • Court of Appeal Rulesrule 5(2)(b)
  • Court of Appeal Rulesrule 75
  • Environmental Management and Co-ordination Act (EMCA)section 3(3)(c)

Cases cited (8)

  • Stanley Kangethe Kinyanjui versus Tony Ketter & 5 Others
    [2013] eKLR
  • Ruben & 9 Others versus Nderitu & another
    (1989) KLR 459
  • Halai & another versus Thornton & Trupin (1963) Ltd.
    [1990] KLR 365
  • David Morton Silverstein versus Atsango Chesoni
    Civil Application No. Nai 189 of 2001
  • Damji Pragji Mandavia versus Sara Lee Household & Body Care (K) Ltd.
    Civil Application No. Nai 345 of 2004
  • Joseph Gitahi Gachau & another versus Pioneer Holdings (a) Ltd. & 2 Others
    Civil Application No. 124 of 2008
  • Reliance Bank Ltd versus Norlake Investments Ltd
    [2002] 1 EA 227
  • International Laboratory for Research on Animal Diseases versus Kinyua
    [1990] KLR 403
On appeal from
Environment and Land Court at Mombasa
H.C.C. Suit No. 103 of 2014
Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act and rule 5(2)(b) of the Court of Appeal Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Bob And Ursulla Brenneisen & 7 others v Shanzu Waterfront Limited [2016] KECA 621 (KLR)", Case Analysis (2016). Civil Application No. 70 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/621/eng@2016-04-22

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