B Concept Limited T/A B-club Nairobi v Residents Association & 7 others
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the intended appeal was arguable
The complaint that the learned judge applied sound level measurements taken at a third party's premises to the applicant raised an arguable issue
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.
Whether the appeal would be rendered nugatory if stay was not granted
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
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.
Legal principles established
#- 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
#- 1.The Notice of Motion dated 30th June 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
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.