Kiza Restaurant and Lounge v Kilimani Project Foundation & 7 others
The bottom line
#The Court of Appeal refused to suspend orders closing Kiza Restaurant for noise pollution, because the business was already shut due to Covid-19.
What this practically means
#Executive summary
#Key legal issues
#Arguability of the intended appeal
The intended appeal was arguable because the applicant raised the question whether the trial court properly evaluated the evidence, including the sound emission audits.
The applicant contended that the learned judge failed to consider its evidence on sound emission audits and wrongly concluded that emissions exceeded permissible levels. The court held that whether the trial court properly evaluated the parties' evidence was a matter deserving ventilation before it, thereby satisfying the first limb of the rule 5(2)(b) threshold.
Whether the appeal would be rendered nugatory
The applicant failed to establish that the appeal would be rendered nugatory if stay was not granted, since its operations had already closed due to the Covid-19 pandemic and the claimed financial hardship did not turn on the trial court's orders.
The applicant argued that closure would cripple its business and cost over 100 employees their livelihood. However, the court noted that the establishment had already closed due to the Covid-19 pandemic, so the trial court's closure orders would not produce a new, irreversible loss rendering a successful appeal nugatory. The nugatory limb was therefore not satisfied.
Legal principles established
#- An applicant under rule 5(2)(b) must first demonstrate that the intended appeal is arguable, and second that the appeal would be rendered nugatory if stay is not granted; the Court's discretion is unfettered but must be exercised judicially.
Court orders
#- 1.The Notice of Motion dated 29th May 2020 is dismissed
- 2.No orders as to costs
- On appeal from
- Environment and Land Court at Nairobi
- Petition No. 5 of 2019
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (application for stay of execution pending an intended appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kenya Chemical Workers Union v Vector Pest Control and Supplies Limited (Cause e808 of 2023) [2025] KEELRC 947 (KLR)[2025] KEELRC 947 (KLR)27 Mar 2025applied
- Salim (Suing as the Administrator of the Estate of the Late Mohamed Salim Mbarak) v Sidik Abdulrehman Abdalla t/a Baitulam House (Environment & Land Case E080 of 2021) [2025] KEELC 1031 (KLR)[2025] KEELC 1031 (KLR)4 Mar 2025applied
Cite this brief
#Cite this brief
Caselaw, "Kiza Restaurant and Lounge v Kilimani Project Foundation & 7 others", Case Analysis (2020). Civil Application No. NAI. 136 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/19/eng@2020-12-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.