County Director of Planning & Architecture, County Government of Mombasa v Makupa Transit Shade Limited [2017] KECA 123 (KLR)
The bottom line
#Kenya's Court of Appeal halted a Kshs 500 million ocean reclamation project in Mombasa until an appeal over planning approval jurisdiction is decided.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the intended appeal is arguable under Rule 5(2)(b)
- 2.Whether the intended appeal would be rendered nugatory if the orders sought are not granted
- 3.Whether any positive order exists capable of being stayed
- 4.The nature of an application under Rule 5(2)(b) and its relationship to Section 3(2) of the Appellate Jurisdiction Act
Key legal issues
#Nature of a Rule 5(2)(b) application
A Rule 5(2)(b) application is distinct from an appeal; the Court exercises an original independent discretion and is not subject to Section 3(2) of the Appellate Jurisdiction Act, though it is restricted to stay of execution, stay of proceedings and injunction
The court adopted Githinji, JA's articulation in Equity Bank Ltd vs West Link Mbo Ltd that a Rule 5(2)(b) application is a procedural innovation empowering the Court, as a court of first instance, to preserve the subject matter of an appeal for its just and effective determination. It follows the application is not an appeal under Article 164(3) and the Appellate Jurisdiction Act's appeal-related powers do not govern it.
Twin principles for granting relief under Rule 5(2)(b)
The applicant must demonstrate both an arguable appeal and that the appeal would be rendered nugatory if the orders sought are not granted; satisfying only one is insufficient
Relying on Reliance Bank Ltd vs Norlake Investments Ltd and Peter Paul Mburu Ndururi vs James Macharia Njore, the court restated the two cumulative principles governing Rule 5(2)(b) applications: arguability of the intended appeal and the nugatory-ness test. It then applied both in turn, finding one arguable jurisdictional issue and a nugatory risk from irreversible reclamation works.
Arguability of the intended appeal
Whether the ELC had jurisdiction to entertain the judicial review proceedings in light of Section 38 of the Physical Planning Act is an arguable issue meriting consideration by the Court, without making final determinations
The court held that an applicant need not establish multiple grounds or a high probability of success; a single arguable issue or serious question of law suffices. It found the jurisdictional question - whether the ELC could hear judicial review proceedings notwithstanding the appellate procedure in Section 38 of the Physical Planning Act and Section 9(2) of the Fair Administrative Action Act - arguable, while expressly avoiding final determination of it.
Nugatory-ness of the intended appeal
Unless the substratum of the intended appeal (the suit property) is preserved, the appeal would be rendered nugatory, given the colossal cost of restoration (project estimated at Kshs. 500,000,000) and uncertainty whether the property could be restored to its original ecological state
Applying Stanley Kangethe Kinyanjui vs Tony Ketter, the court asked whether what is sought to be stayed is reversible or compensable in damages. Although Section 30(4) of the Physical Planning Act permits restoration orders, the court found restoration costs colossal and doubted the ecological restorability of reclaimed ocean land, so preservation pending appeal was warranted.
Whether a positive order exists capable of being stayed
The ruling of 24th July 2017 merely dismissed the applicant's application, so nothing in it was capable of being stayed; the court proceeded to consider the 10th February 2017 orders and the injunctive relief sought
The court accepted the respondent's submission that a dismissal order contains no positive direction capable of execution and therefore cannot be stayed. It narrowed its consideration to the leave/stay order of 10th February 2017 and the two injunctions sought, ultimately granting the injunctions as the appropriate Rule 5(2)(b) remedy to preserve the suit property.
Legal principles established
#- An application under Rule 5(2)(b) is not an appeal; the Court exercises an original, independent discretion and is not subject to Section 3(2) of the Appellate Jurisdiction Act, but may grant only stay of execution, stay of proceedings and injunction
- An applicant under Rule 5(2)(b) must satisfy both twin principles: an arguable appeal, and that the appeal will be rendered nugatory if the orders are not granted
- A single arguable ground suffices to establish an arguable appeal; the applicant need not show the appeal will definitely succeed
Court orders
#- 1.An injunction restraining the respondent, its servants, agents, employees and any persons acting pursuant to its authority, from proceeding with or continuing reclamation of the Indian Ocean at Makupa Creek and consequent construction on Plot No. 4106/MN/IV pending the lodging, hearing and determination of the intended appeal against the ruling dated 24th July 2017
- 2.An injunction restraining the respondent and those acting on its authority from using or operationalizing the suit property for commercial or private purposes, involving third parties, or proceeding with any other developments thereon, pending the intended appeal
- 3.Costs of the application to abide the outcome of the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Mombasa (High Court)
- Misc. Cause No. 11 of 2017
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Stay of execution of the orders dated 10th February 2017 and 24th July 2017
The ruling dated 24th July 2017 merely dismissed the applicant's application, so there was nothing capable of being stayed in respect of that order; the court granted injunctions instead
Costs
The costs of the application shall abide the outcome of the intended appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Taking caution not to make final determinations on issues subject of the intended appeal, we are persuaded that whether the ELC had jurisdiction to entertain the judicial review proceedings in light of Section 38 of the Physical Planning Act is arguable and merits consideration by this Court.
We find that unless the substratum of the intended appeal (suit property) is preserved the intended appeal would be rendered nugatory.
The applicant is obliged to satisfy both of those principles; it is not enough to satisfy only one of them.
From the foregoing, it is clear that Rule 5 (2) (b) is a procedural innovation designed to empower the Court to entertain an interlocutory application for preservation of the subject matter of the appeal in order to ensure the just and effective determination of appeals.
The costs of the application shall abide the outcome of the intended appeal.
Issues in the judgment
#The judgment inconsistently refers to the orders of 10th February 2017 as being dated '10th February, 2010' in paragraph 16
The application of 20th February 2017 is inconsistently referred to as dated '20th February, 2010' in paragraph 16
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "County Director of Planning & Architecture, County Government of Mombasa v Makupa Transit Shade Limited [2017] KECA 123 (KLR)", Case Analysis (2017). Civil Application No. 43 of 2017 (UR 34/2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/123/eng@2017-11-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.