Explorers Tavern v Kilimani Project Foundation (Being Sued on Behalf of Kilimani Residents Association) & 7 others [2020] KECA 414 (KLR)

Court of Appeal of Kenya

7 August 2020

SKS. Gatembu Kairu AMA.K. Murgor SKS. ole Kantai

1,897 words in judgment

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The bottom line

Kilimani nightclubs lost their bid to pause a court order requiring action over noise, as the Court of Appeal found residents' health interests outweighed their appeal.

What this practically means

Executive summary

This is a ruling of the Court of Appeal at Nairobi (Gatembu, Murgor and ole Kantai, JJ.A.) on an application under rule 5(2)(b) of the Court of Appeal Rules by Explorers Tavern for stay of execution of the judgment of Komingoi, J. of the Environment and Land Court delivered on 17th October 2019 in Petition No. 5 of 2018. The trial court declared that the continued operation of businesses, including Explorers Tavern and other entertainment establishments, within the Kilimani residential area violated residents' rights to life and a clean and healthy environment under Articles 26(1) and 42(1) of the Constitution, held the business permits and liquor licences unlawful, and issued mandatory injunctions compelling closure notices and revocation of liquor licences. The applicant filed a Notice of Appeal and sought stay pending the intended appeal, supported by the 4th respondent, Kiza Restaurant and Lounge, arguing financial hardship, erroneous reliance on noise readings taken at another establishment, and the trial Judge's usurpation of regulatory agencies' functions. Applying the settled twin principles from Stanley Kangethe Kinyanjui v Tony Ketter & Others, the Court found one arguable point sufficient and accepted that the grounds raised were arguable. However, on the nugatory limb, weighing the residents' affidavits on noise disturbance, the Covid-19 pandemic and the public interest, the Court was not satisfied the appeal would be rendered nugatory absent stay. The Motion was dismissed with no order as to costs, the respondents having filed no replying affidavits.

Key legal issues

Whether the intended appeal was arguable

Holding

The Court found the grounds attacking the trial Judge's reliance on noise levels recorded at a third party's establishment, and the alleged disregard of expert reports, to be arguable points.

Reasoning

The applicant contended that the trial Judge wrongly juxtaposed noise readings taken at Space Lounge and Grill as if they were readings of the applicant, and disregarded expert reports. The Court found these raised bona fide matters for the intended appeal, holding that only one arguable point is needed under rule 5(2)(b), without making definitive findings of fact or law that could embarrass the full hearing.

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Whether the intended appeal would be rendered nugatory absent stay

Holding

The Court was not satisfied that the intended appeal would be rendered nugatory absent stay, weighing the residents' affidavits, the Covid-19 pandemic and the public interest against the applicants' claims of financial hardship.

Reasoning

Although the applicant and the 4th respondent claimed irreparable loss and financial hardship, the Court noted the petition was supported by many affidavits from residents describing anguish, stress and disturbance caused by noise from the nightclubs. The Court also took into account the government-ordered closure of public establishments during the Covid-19 pandemic and the public interest in enforcement of the environmental judgment.

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Legal principles established

An applicant under rule 5(2)(b) must satisfy both twin principles: that the appeal or intended appeal is arguable, and that it would be rendered nugatory absent stay.
A single bona fide arguable ground of appeal suffices to satisfy the arguability limb under rule 5(2)(b).
The Court of Appeal, in the modern era of the liberal interpretation of the Constitution of Kenya, 2010, may consider public interest when deciding whether to grant or refuse a stay of execution.

Court orders

1.The Notice of Motion seeking stay of execution of the judgment of the Environment and Land Court pending the intended appeal is dismissed
2.No order as to costs

Authorities

Legislation

Constitution of Kenya, 2010Article 26(1)
Constitution of Kenya, 2010Article 42(1)
Environmental Management and Coordination Act
Environmental Management and Coordination (Noise and Excessive Vibration Pollution) (Control) Regulations, 2009L.N. No. 61 of 2009

Cases cited (1)

Stanley Kanygethe Kinyanjui v Tony Ketter & Others
[2013] eKLR

On appeal from: Environment and Land Court of Kenya at Nairobi; Petition No. 5 of 2018
Jurisdiction invoked: Rule 5(2)(b) of the Court of Appeal Rules (stay of execution pending appeal)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Explorers Tavern v Kilimani Project Foundation (Being Sued on Behalf of Kilimani Residents Association) & 7 others [2020] KECA 414 (KLR)", Case Analysis (2020). Civil Application No. 141 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/414/eng@2020-08-07

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