Kibos Sugar & Allied Industries Ltd & 2 others v Benson Ambuti Adega & 2 others; National Environment Management Authority & another (Interested Party) [2018] KECA 73 (KLR)
The bottom line
#Kenya's Court of Appeal paused an order shutting down three Kibos factories, but allowed the pollution case itself to continue in the Environment & Land Court.
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 applicants have an arguable appeal for purposes of Rule 5(2)(b)
- 2.Whether the appeal would be rendered nugatory if a stay of execution is not granted
- 3.Whether further proceedings in the E&LC should be stayed pending the hearing of the intended appeal
Key legal issues
#Arguability of the intended appeal
The appeal was arguable on the jurisdiction ground and on the ground of violation of the right to fair hearing
The draft memorandum of appeal raised six grounds, one of which concerned the jurisdiction of the E&LC given the dispute-resolution mechanism in EMCA, and another the denial of an opportunity to be heard before the interim orders were issued. Under the Kang'ethe-Ketter principles, one arguable ground suffices.
Nugatory aspect of the intended appeal
The appeal would be rendered nugatory if the order shutting down the applicants' factories remained in force, because the loss may be irreversible
The interim order had the effect of shutting down three factories in which the applicants had invested a colossal sum, affecting workers, farmers and the County Government. The focus is on the order sought to be stayed; suspension of licences may have irreversible effects even if the applicants ultimately succeed.
Whether to stay further proceedings in the E&LC
A stay of the E&LC proceedings was refused
The impugned order was interim pending inter partes hearing of the respondents' motion; allegations of a health hazard from pollution made expedition appropriate, and the jurisdictional issues should first be heard and determined by the trial court, without prejudice to the intended appeal.
Legal principles established
#- Rule 5(2)(b) applications require the applicant to establish an arguable appeal and that the appeal would be rendered nugatory absent the orders sought
- A single arguable ground suffices under Rule 5(2)(b); it need not be a ground that must succeed
- An appeal is rendered nugatory if what is sought to be stayed is irreversible or not compensable in damages
Court orders
#- 1.Order staying execution of the order issued by the E&LC on 31st October 2018 pending the inter partes hearing of the respondents' notice of motion dated 25th October 2018 in ELC Petition No. 8 of 2018
- 2.Costs of the application to be in the intended appeal
- 3.Refusal of the application insofar as it sought a stay of further proceedings in the E&LC
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment & Land Court, Kisumu
- KSM HC ELC Petition No. 8 of 2018
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, sections 3A & 3B of the Appellate Jurisdiction Act, and Article 159 of the Constitution
Relief refused
#Stay of further proceedings in the E&LC pending the hearing and determination of the intended appeal
Would be prejudicial to the respondents given the urgency and allegations of pollution; the jurisdictional issues have not been heard by the trial court
Costs
Costs of this application shall be in 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.
the court must be satisfied that two factors are established, that is that the applicant has an arguable appeal and that unless the orders sought are issued, the appeal may be rendered nugatory
Whether or not an appeal will be rendered nugatory depends on whether or not what is sought to stay if allowed to happen is reversible: or if it is not reversible whether damages will reasonably compensate the party aggrieved
we allow the applicants' motion only to the extent of issuing an order staying execution of the order issued by the E&LC on 31st October 2018 pending the inter partes hearing of the respondent's notice of motion dated 25th October, 2018, in ELC Petition No. 8 of 2018
Issues in the judgment
#The coram/description inconsistently dates the impugned ruling, once as 'dated 31st October, 2015' and elsewhere as 31st October 2018
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kibos Sugar & Allied Industries Ltd & 2 others v Benson Ambuti Adega & 2 others; National Environment Management Authority & another (Interested Party) [2018] KECA 73 (KLR)", Case Analysis (2018). Civil Appeal (Application) No. 137 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/73/eng@2018-12-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.