Deepak Harakchand Dodhia v Anmol Limited & another;Director Physical Planning & 2 others (Interested Parties) [2019] KECA 259 (KLR)
The bottom line
#Kenya's Court of Appeal refused to stop a completed Westlands apartment project, ruling that injunctions cannot reverse construction that has already finished.
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 Court has jurisdiction to determine the motion, dependent on whether a Notice of Appeal was filed
- 2.Whether the intended appeal is arguable
- 3.Whether the intended appeal, if successful, would be rendered nugatory in the absence of an injunction
Key legal issues
#Jurisdiction of the Court to entertain a rule 5(2)(b) application where a Notice of Appeal has been filed
The Court had jurisdiction because a Notice of Appeal was lodged both in the Environment and Land Court and in the Court of Appeal in accordance with the rules
The 2nd respondent contended there was no appeal on the record and therefore no jurisdiction. The Court treated jurisdiction as dependent on the filing of a Notice of Appeal. The record showed a Notice lodged in the Environment and Land Court on 26 July 2018 and in the Court of Appeal on 8 August 2018, satisfying the rules.
Whether the intended appeal is arguable
The intended appeal was arguable: whether the applicant should have brought the injunction under the Environmental Management and Co-ordination Act to the exclusion of the principles in Rylands v Fletcher should be determined by the Court
Central to the draft memorandum was the complaint that the judge erred in requiring redress under EMCA notwithstanding the rights-based claims and the Rylands v Fletcher tort principles. The Court held that a single non-frivolous ground suffices, and found the applicant's complaint arguable though not necessarily destined to succeed.
Whether the appeal would be rendered nugatory if the injunction were not granted
The nugatory limb failed because the construction was complete and occupied or being leased; the order sought was overtaken by events, so the application was dismissed
Though the applicant asserted works were ongoing, the 2nd respondent's replying affidavit annexed photographs of the Building and Occupation Certificate dated 28 March 2019 confirming completion. Without evidence that works were ongoing, an order stopping the works would serve no purpose and the second limb of the rule 5(2)(b) test failed.
Legal principles established
#- In dealing with an application under rule 5(2)(b), the Court exercises original and discretionary jurisdiction which does not constitute an appeal from the trial judge's exercise of discretion
- Two principles guide rule 5(2)(b) applications: the appeal or intended appeal must be arguable (not frivolous), and it must be shown that without the orders sought the appeal would be rendered nugatory
- A single arguable ground of appeal suffices to meet the arguability threshold under rule 5(2)(b)
Court orders
#- 1.The application is dismissed
- 2.Costs to abide the outcome of the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi (Environment & Land Division)
- ELRC No. 3 of 2017
- Jurisdiction invoked
- Rules 5(2)(b), 20(2), 42 and 47(1), (2) and (4) of the Court of Appeal Rules; jurisdiction founded on the Notice of Appeal filed in accordance with the rules of the Court
Relief refused
#Injunction restraining the respondents from proceeding with construction of the residential development on Plot L.R. No. 1870/1/303 General Mathenge Drive, Westlands, pending the hearing and determination of the intended appeal
The construction works were completed and the apartments were in the process of being leased to tenants, so the order stopping the works had been overtaken by events; the nugatory limb therefore failed
Costs
Costs do 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.
First, an applicant is required to demonstrate that the appeal or intended appeal is arguable, or in other words, that it is not trifling or frivolous. Secondly, that unless he is granted a stay of execution or injunction as the case may be, the appeal or intended appeal, if successful, will be rendered nugatory.
We would also add that in dealing with applications under rule 5 (2) (b), the court exercises a jurisdiction which does not constitute an appeal to this Court from the trial judge’s exercise of discretion.
In which case, the second limb having failed, we have come to the conclusion that the application is not merited and is dismissed. We order that costs do abide the outcome of the intended appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Deepak Harakchand Dodhia v Anmol Limited & another;Director Physical Planning & 2 others (Interested Parties) [2019] KECA 259 (KLR)", Case Analysis (2019). Civil Application No. NAI 276 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/259/eng@2019-10-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.