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Court of AppealDismissedCivil Application No. NAI. 182 of 2020· [2020] KECA 21 (KLR)

B Concept Limited T/A B-club Nairobi v Residents Association & 7 others

Court of Appeal
18 December 2020
890 words in judgment
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The bottom line

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Nairobi's B-Club lost its bid to pause enforcement of noise violation closure orders while it appeals, because its money troubles were blamed on Covid-19, not the ruling.

What this practically means

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Executive summary

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The Court of Appeal (Okwengu, Gatembu Kairu and Murgor, JJ.A) ruled on a Notice of Motion dated 30th June 2020 by B Concept Limited T/A B-Club Nairobi seeking stay of execution of the judgment of the Environment and Land Court at Nairobi (Komingoi, J.) dated 17th October 2019 in Petition No. 5 of 2019. That judgment had ordered environmental and licensing authorities to enforce closure notices against the applicant for contravening the Noise and Excessive Vibration Pollution (Control) Regulations 2009 and to revoke liquor licences issued to it. The application, brought under Articles 159 and 164(3) of the Constitution, sections 3A and 3B of the Appellate Jurisdiction Act and rule 5(2)(b) of the Court of Appeal Rules, was supported by an affidavit of the applicant's Managing Director, who deponed that the applicant risked losing over Kshs. 20,000,000 and would be unable to meet obligations to employees, creditors and suppliers, partly due to the Covid-19 pandemic closure. No respondent filed affidavits or submissions. Applying the established rule 5(2)(b) threshold, the court found the applicant's complaint that the judge wrongly applied sound level measurements taken at a third party's premises to be an arguable issue. However, on the nugatory-impact limb, the court was not persuaded, noting the financial difficulties stemmed in part from the Covid-19 pandemic closure. The motion was accordingly dismissed with no orders as to costs. The decision below was not disturbed; this was an interlocutory ruling on stay.

Key legal issues

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01

Whether the intended appeal was arguable

Holding

The complaint that the learned judge applied sound level measurements taken at a third party's premises to the applicant raised an arguable issue

Reasoning

The applicant's main grievance was that the judge wrongly applied the sound level measurements taken in Space Lounge and Grill's premises to the applicant's case. The court held that whether or not those measurements were correctly applied was a matter it considered to be an arguable issue, satisfying the first limb of the rule 5(2)(b) threshold.

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02

Whether the appeal would be rendered nugatory if stay was not granted

Holding

The applicant was not persuaded that the appeal would be rendered nugatory; the financial difficulties were attributed to the Covid-19 pandemic closure rather than the judgment

Reasoning

The applicant deponed that it risked losing over Kshs. 20,000,000 and would go out of business, unable to meet obligations to employees, creditors and suppliers. However, the court noted the financial challenges arose partly from the Covid-19 pandemic closure, and was not persuaded that the success of the appeal would be rendered nugatory without a stay, so the second limb of the threshold failed.

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Legal principles established

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  • An applicant under rule 5(2)(b) must satisfy the court that the appeal is arguable and that, if stay is refused and the appeal succeeds, the success would be rendered nugatory; the discretion is unfettered but must be exercised judicially

Court orders

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  1. 1.The Notice of Motion dated 30th June 2020 is dismissed
  2. 2.No orders as to costs
On appeal from
Environment and Land Court at Nairobi
Petition No. 5 of 2019
Jurisdiction invoked
Articles 159 and 164(3) of the Constitution, sections 3A and 3B of the Appellate Jurisdiction Act and rules 1(2) and 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, "B Concept Limited T/A B-club Nairobi v Residents Association & 7 others", Case Analysis (2020). Civil Application No. NAI. 182 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/21/eng@2020-12-18

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