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. NAI 156 of 2015· [2016] KECA 736 (KLR)

Parkside Medical Centre Limited v Nairobi City Council [2016] KECA 736 (KLR)

Court of Appeal
4 March 2016
AVAlnashir VisramGKG.B.M. KariukiSKS. ole Kantai
1,300 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

The Court of Appeal dismissed Parkside Medical Centre's bid to stop Nairobi City County's enforcement because a demolished boundary wall could simply be rebuilt.

What this practically means

#

Executive summary

#
Parkside Medical Centre Limited moved the Court of Appeal under Rule 5(2)(b) of the Court's rules and Sections 3A and 3B of the Appellate Jurisdiction Act, seeking an injunction restraining Nairobi City County from stopping developments on land parcels L.R. No. 209/12614/3 to 209/12614/24 and from interfering with the applicant's user, possession and enjoyment of the properties, pending an intended appeal against a ruling of the Environment and Land Court (Onguto, J.) dated 20th April 2015 in ELC No. 605 of 2014, which had discharged a temporary injunction. A stay of proceedings in the ELC suit was also sought. The applicant alleged it had obtained all necessary consents and approvals, had erected a boundary wall which the respondent demolished after issuing an Enforcement Notice, and would suffer irreparable loss. The respondent, through its Director of Planning, Compliance and Enforcement, opposed the application, contending the applicant had misled the Court and that the exhibited development permission did not relate to its properties. The court restated the settled Rule 5(2)(b) principles: an arguable appeal, and that the appeal would be rendered nugatory absent preservation of the status quo. It found the draft grounds on the jurisdiction of the High Court certainly arguable, satisfying the first limb, but held the nugatory limb failed because the boundary wall had already been demolished and could be reconstructed if the appeal succeeded. The Motion was dismissed with costs to the respondent.

Key legal issues

#
01

Arguability of the intended appeal

Holding

The draft grounds concerning the High Court's jurisdiction were certainly arguable, satisfying the first limb of the Rule 5(2)(b) test

Reasoning

The applicant contended that remarks in the High Court ruling appeared to limit the jurisdiction of the High Court to appellate jurisdiction. The court found that draft Memorandum of Appeal grounds 3 and 4, which challenged the judge's treatment of jurisdiction and the alleged denial of an appellate forum, were certainly arguable points. It declined to comment further so as not to embarrass the bench that would hear the intended appeal.

p. 3
02

Nugatory aspect

Holding

The applicant failed to demonstrate that the intended appeal, if successful, would be rendered nugatory

Reasoning

The boundary wall erected by the applicant had already been demolished before it approached the Environment and Land Court, and no wall exists now. Since it was not shown that the respondent could not reconstruct the wall if ordered, preserving the status quo would not render a successful appeal nugatory. The second limb of the Rule 5(2)(b) test therefore failed and the Motion was dismissed.

p. 3

Legal principles established

#
  • On an application under Rule 5(2)(b), an applicant must first show an arguable appeal (one that is not frivolous) and, secondly, that the appeal would be rendered nugatory if the status quo is not preserved and the appeal eventually succeeds
  • An applicant under Rule 5(2)(b) need not establish a multiplicity of arguable grounds; a single arguable issue will suffice
  • An arguable appeal does not mean an appeal that will certainly succeed

Court orders

#
  1. 1.The Motion fails and is accordingly dismissed with costs to the respondent

Authorities

#

Legislation

  • Appellate Jurisdiction ActSections 3A and 3B
  • Court of Appeal RulesRule 5(2)(b)
  • Physical Planning Actappeal procedure (as referenced in the High Court ruling)

Cases cited (5)

  • Republic v Kenya Anti Corupton Commission & 2 Others
    [2009] KLR 31
  • Nation Newspapers Limited v Peter Banza Rabando
    Civil Appeal No. 1 of 2007 (ur)
  • Titus Gicharu Mwangi v Mary Nyambura Murima & Anor
    [2014] eKLR
  • Transouth Conveyors Limited v Kenya Revenue Authority & Anor
    Civil Application No. 37 of 2007 (ur)
  • Judicial Commission of Inquiry into the Goldenberg Affair & 3 Others v Kilachi
    [2003] KLR
On appeal from
High Court of Kenya at Nairobi (Environment and Land Court)
ELC No. 605 of 2014
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules and Sections 3A and 3B of the Appellate Jurisdiction Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Parkside Medical Centre Limited v Nairobi City Council [2016] KECA 736 (KLR)", Case Analysis (2016). Civil Application No. NAI 156 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/736/eng@2016-03-04

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