National Environment Management Authority v Km (Minor Suing Through Mother and Bestfriend Sks & 14 others
The bottom line
#Kenya's Court of Appeal paused enforcement of the Kshs.1.3 Billion Owino-Uhuru pollution judgment against NEMA until its appeal is decided.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable
The Court was satisfied from the draft memorandum of appeal that the intended appeal was arguable, without expressing further views.
The draft memorandum raised grounds including alleged misconstruction of the doctrine of strict or absolute liability and misapplication of the polluter pays principle, together with challenge to the quantum of damages. The Court held it need not say more lest it embarrass the bench that would eventually hear the appeal.
Whether the appeal would be rendered nugatory if stay is not granted
The Court found the appeal would be rendered nugatory if execution proceeded, since the huge judgment sum would be impossible to recover if the appeal later succeeded.
The petitioners had been awarded Kshs.1.3 Billion, with the applicant liable for 40%. None of the petitioners swore an affidavit demonstrating capacity to refund any part of the judgment sum if paid out and the appeal succeeded, making recovery impossible and rendering the appeal nugatory.
Legal principles established
#- An applicant under rule 5(2)(b) must demonstrate both that the appeal is arguable and that it will be rendered nugatory absent the orders sought.
- An arguable appeal need not be one that must succeed; it suffices that it raises at least one bona fide point worthy of consideration.
Court orders
#- 1.Stay of execution of the entire judgment of the Environment and Land Court dated 16th July 2020 granted pending hearing and determination of the appeal
- 2.Each party to bear its own costs of the application
- On appeal from
- Environment and Land Court of Kenya at Mombasa
- E.L.C Petition No. 1 of 2016
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "National Environment Management Authority v Km (Minor Suing Through Mother and Bestfriend Sks & 14 others", Case Analysis (2021). Civil Application No. E004 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/448/eng@2021-07-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.