Kenya Power & Lighting Company Limited v Green Power Generation Company Limited & another
The bottom line
#Kenya Power won a stay of a Kshs 10 million land judgment, keeping its electricity substation running while it appeals.
What this practically means
#Executive summary
#Key legal issues
#Competence of the Notice of Appeal and invocation of Rule 5(2)(b) jurisdiction
The Notice of Appeal was competent; the Applicant, being a party affected and aggrieved by the joint and several ELC judgment, had a right to lodge its own notice under Rule 75, and Trade Bank was distinguishable.
The court held that Trade Bank prohibited joint notices of appeal, requiring each appealing party to file a separate notice. The ELC judgment was against the Applicant and 2nd Respondent jointly and severally, so the Applicant was aggrieved. No evidence showed the notice had been struck out, and the 1st Respondent was not prejudiced since any stay orders would abate if the pending striking-out application succeeded.
Arguability of the intended appeal
The intended appeal was arguable, as the Applicant raised concerns on the ELC's finding on ownership of the suit property and the award of damages which merited consideration.
The court applied the principle that only one arguable ground is needed and arguability does not mean likely success. The draft memorandum faulted the ELC for finding the suit property was not government land, for ignoring evidence of the Applicant's occupation, and for excessive damages; these merited the Court's consideration.
Whether the appeal would be rendered nugatory
The appeal would be rendered nugatory: the Applicant occupied the suit property with substantial investments, the Kshs 10 million decretal sum was considerable, and the 1st Respondent would suffer no prejudice since the property and damages would remain available if the appeal failed.
Applying the Norlake and Kinyanjui formulations, the court asked whether what is sought to be stayed is reversible or compensable in damages. The Applicant's occupation and substantial investments, plus the considerable decretal sum payable from public funds, tipped the balance; the 1st Respondent, a company of means, could still execute after the appeal.
Public interest as a third condition for stay
A public interest element existed, since the Applicant continued to use the suit property for generation and supply of electricity to the public, as the ELC itself had acknowledged.
Relying on Gatirau Peter Munya, the court accepted that under the Constitution of Kenya, 2010 a third public-interest condition may be added to the twin limbs. The substation on the suit property supplied electricity to residents of Mpeketoni and surrounding environs, sustaining businesses and livelihoods, so eviction could have irreversible effects on public infrastructure.
Legal principles established
#- A person affected by a decision can lodge a notice of appeal in the Court of Appeal; a joint judgment against parties does not require a joint notice of appeal, and each aggrieved party may file its own notice.
- Under Rule 5(2)(b), an applicant for stay must satisfy the twin limbs of an arguable appeal and that the appeal would be rendered nugatory; a third public-interest condition may be added under the Constitution of Kenya, 2010.
- On the arguability limb, an applicant need only demonstrate one arguable ground, and an arguable appeal is not necessarily one that will succeed.
Court orders
#- 1.Execution of the judgment of the Environment and Land Court delivered on 6th May 2020 in Malindi ELC Case No 179 of 2013 be stayed pending the hearing and determination of the intended appeal
- 2.The costs of the application dated 27th September 2021 shall abide the outcome of the intended appeal
- On appeal from
- Environment and Land Court
- Malindi ELC Case No 179 of 2013
- 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, "Kenya Power & Lighting Company Limited v Green Power Generation Company Limited & another", Case Analysis (2022). Civil Application E056 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/441/eng@2022-03-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.