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Court of AppealDismissedCivil Application No. 99 of 2019· [2019] KECA 97 (KLR)

Karolyne Mwatha Mburu & 2 others v Athi Water Services Board & another [2019] KECA 97 (KLR)

Court of Appeal
22 November 2019
WKW. KaranjaHOH. M. OkwenguKMK. M'Inoti
1,774 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal refused to stop a water project on private land, holding that pending compensation makes monetary disputes unsuitable for injunctive relief.

What this practically means

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Executive summary

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This is a single-judgment ruling of a three-judge bench of the Court of Appeal at Nairobi on an application under rule 5(2)(b) of the Court of Appeal Rules by three officials of the Loresho South Residents' Association, seeking an injunction to restrain Athi Water Services Board and the Water Resources Authority from entering some 22 properties in Loresho South to lay pipes for a donor-funded public water project, together with a stay of proceedings before the Environment and Land Court. The application followed the dismissal, with costs, of the applicants' injunction application by Eboso, J. on 13th March 2019, on the grounds that no prima facie case had been established, damages would be adequate, and the balance of convenience favoured the project. The Court of Appeal restated the twin rule 5(2)(b) tests: the intended appeal must be arguable and, absent the orders, would be rendered nugatory if it ultimately succeeded; both tests must be satisfied. The court found the draft memorandum arguable on the Association's capacity to sue and compliance with section 89 of the Water Act, but declined to say more to avoid preempting the full appeal. On the nugatory limb, however, the court held that the applicants' complaint was essentially monetary: compensation had commenced being processed, so the appeal would not be a pyrrhic victory. The application was dismissed, with costs of the application abiding the outcome of the intended appeal. The ruling binds subordinate courts on the rule 5(2)(b) principles it restates.

Key legal issues

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01

Dual test under rule 5(2)(b)

Holding

The applicants satisfied the arguability test but failed the nugatory test, so the application had to be dismissed

Reasoning

The court restated the settled twin test for relief under rule 5(2)(b): an arguable appeal and a nugatory appeal if orders are refused. Both must be met. The draft memorandum raised arguable issues on the Association's capacity and compliance with the Water Act, but since compensation was being processed, the appeal would not be a pyrrhic victory.

p. 3
02

Nugatory aspect - monetary compensation

Holding

Where the real dispute reduces to compensation and the compensation process has commenced, an appeal is not rendered nugatory by continuation of the project

Reasoning

The applicants' central grievance was non-payment of compensation before entry onto the land. The court found it common ground that the respondents had commenced determining compensation, making the dispute purely monetary; damages would therefore be an adequate remedy, defeating the nugatory limb.

p. 2

Legal principles established

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  • An applicant under rule 5(2)(b) must satisfy both the arguability and the nugatory tests; satisfying only one is insufficient
  • An arguable appeal need not ultimately succeed; it suffices that it raises at least one bona fide issue for full argument
  • Whether an appeal will be rendered nugatory depends on whether what is sought to be stayed is reversible or compensable in damages

Court orders

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  1. 1.The application for injunction and stay of proceedings pending appeal is dismissed
  2. 2.Costs of the application to abide the outcome of the intended appeal

Authorities

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Legislation

  • Water Actsection 89
  • Land Actsection 28
  • Constitution of Kenya, 2010Article 40
  • Constitution of Kenya, 2010Article 23
  • Civil Procedure RulesOrder 1 Rule 13
  • Court of Appeal Rulesrule 5(2)(b)

Cases cited (10)

  • Said Ahmed v. Manasseh Denga & Another
    [2019] eKLR
  • David Morton Silverstein v. Atsango Chesoni
    [2002] eKLR
  • Paul Gitonga Wanjau v. Gathuthi Tea Factory Co Ltd & 2 Others
    [2016] eKLR
  • Joseph Wainaina Kinyanjui & Another v. Kenya National Highways Authority
    [2018] eKLR
  • Peter K. Waweru v. Republic
    [2006] eKLR
  • J. K. Industries Ltd v Kenya Commercial Bank Ltd
    [1982-88] 1 KLR 1088
  • Joseph Gitahi Gacheu & Another v Pioneer Holdings (A) Ltd & Another
    CA No. 124 of 2008
  • Damji Pragji Mandaria v. Sara Lee Household & Body Care (K) Ltd
    CA No. Nai. 345 of 2004
  • Kenya Airports Authority v. Mitu-Bell Welfare Society & Another
    CA No. 114 of 2013
  • Stanley Kangethe Kinyanjui v. Tony Keter & 5 Others
    CA No. 31 of 2012
On appeal from
Environment and Land Court at Nairobi
ELCC No. 306 of 2018
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Karolyne Mwatha Mburu & 2 others v Athi Water Services Board & another [2019] KECA 97 (KLR)", Case Analysis (2019). Civil Application No. 99 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/97/eng@2019-11-22

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