Mwakweli & 3 others v Vipingo Development Limited & 2 others
The bottom line
#Kenya's Court of Appeal refused to halt a Vipingo development project, finding residents' appeal arguable but not left without a remedy if the developer's licence conditions are enforced.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the intended appeal is arguable
- 2.Whether the intended appeal would be rendered nugatory if the stay, injunction or preservation orders sought are not granted
- 3.Whether simultaneously filing similar stay applications in the High Court and the Court of Appeal amounts to an abuse of the court process
Key legal issues
#Whether the intended appeal is arguable
The intended appeal was arguable - the ground that the trial judge struck out the petition for lack of jurisdiction despite alleged rights violations is not idle
The court applied the settled rule that a single bona fide arguable ground suffices and that an arguable appeal need not necessarily succeed. The applicants' contention that striking out the petition on jurisdictional grounds denied them access to justice under article 48 was held to be a genuine ground fit for full argument on appeal.
Whether the intended appeal would be rendered nugatory absent the orders sought
The nugatory test was not satisfied; the EIA licence is conditional and liable to cancellation if violated, so the applicants would not be left without remedy
Although no positive order was made below, the court accepted that an injunction or preservation order could still be sought. However, the licence issued to the 1st respondent was conditional on mitigation steps, and any violation would expose the licence to cancellation. The applicants therefore failed to show the appeal would be futile if stay was refused.
Whether parallel stay applications in the High Court and the Court of Appeal constitute forum shopping
Simultaneous similar applications in both courts may be an abuse of process; a party should choose one forum at a time
The respondents disclosed that the application was filed while a similar application was pending before the High Court, an allegation the applicants did not deny. The court observed that permitting parallel applications would amount to playing lottery with court process and could turn the courts into a circus if the courts reached different outcomes.
Legal principles established
#- An applicant under rule 5(2)(b) must demonstrate an arguable appeal and that the appeal would be rendered nugatory absent stay
- Arguability may be demonstrated by a memorandum of appeal, a draft memorandum, or by setting out grounds in the supporting affidavit; absence of a filed memorandum is not fatal
- Simultaneously filing similar stay applications in the High Court and the Court of Appeal may amount to an abuse of the court process; a party should choose one forum at a time
- Where no positive order was granted below, that does not bar an applicant from seeking an injunction or interim preservation order pending appeal
Court orders
#- 1.The motion dated December 20, 2021 is dismissed
- 2.No order as to costs, the matter being a public interest case
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- Environment and Land Court of Kenya at Mombasa
- ELC Constitutional Petition E11 of 2020
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules and sections 3, 3A and 3B of the Appellate Jurisdiction Act (original jurisdiction of the Court of Appeal on interlocutory applications)
Relief refused
#Stay of the decision of July 30, 2021 in Petition E11 of 2020 pending the appeal
Applicants failed to demonstrate the appeal would be rendered nugatory absent stay; the EIA licence is conditional and liable to cancellation if violated
Stay of proceedings before the Environment and Land Court at Malindi
The twin tests for stay under rule 5(2)(b) were not satisfied
Injunction or interim preservation order barring any dealings or construction on plot LR No 4393/III/MN
No nugatory-impact demonstrated; the licence conditions provide a safeguard
Costs
Application dismissed with no order as to costs, the matter being a public interest case
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
For an applicant to succeed he must, firstly demonstrate that the appeal, or intended appeal, as the case may be, is arguable, which is the same as saying that the same is not frivolous. The applicant must in addition show that the appeal would be rendered nugatory absent stay.
On whether the appeal is arguable, it is sufficient if a single bona fide arguable ground of appeal is raised.
In our respectful view, a party should choose one forum at a time to ventilate his grievance.
Consequently, we find no merit in the motion dated December 20, 2021 which we hereby dismiss but with no order as to costs, the matter being a public interest case.
Issues in the judgment
#Judge name spelled 'LESSIT' in coram but 'LESIIT' in the signature block
Odunga signed as 'JUDGE' though the coram lists him as 'JJA'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwakweli & 3 others v Vipingo Development Limited & 2 others", Case Analysis (2022). Civil Application E060 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1378/eng@2022-12-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.