Energy & Petroleum Regulatory Authority (previously known as Energy Regulatory Commission) v Gitson Energy Limited & 5 others (Civil Appeal (Application) E043 of 2022) [2024] KECA 116 (KLR)
The bottom line
#Kenya's Court of Appeal paused a court order forcing the energy regulator to issue a 300MW wind power licence until the full appeal is heard.
What this practically means
#Executive summary
#Key legal issues
#Arguability of the intended appeal
The intended appeal is not frivolous because it raises the question whether the High Court erred in granting mandamus when conditions precedent for the licence, including a feasibility study and availability of land, had not been fulfilled.
The Court applied the settled Rule 5(2)(b) test: one arguable point suffices, and an arguable appeal is not one that must necessarily succeed. The applicant contended the 1st respondent had not fulfilled conditions precedent, including submission of a feasibility study and availability of land in Marsabit, and that the first port of call should have been the Energy Tribunal. On those contentions the Court was satisfied the appeal was arguable.
Whether the appeal would be rendered nugatory if stay is refused
Once the licence and permits are issued and approvals granted, those acts cannot be undone if the appeal later succeeds, so the appeal would be rendered nugatory; the public importance of the regulatory conditions reinforced the grant of stay.
The Court reasoned that the effect of the impugned judgment is to compel the Authority to issue licences and permits without sufficient regulatory checks, including a feasibility study ensuring grid interconnection without disruption. Since approvals and licences, once granted, cannot be reversed, execution before appeal would destroy the subject matter of the appeal; public interest in the regulatory framework supporting safety and the environment weighed in favour of a stay.
Legal principles established
#- An applicant under Rule 5(2)(b) must demonstrate that the intended appeal is not frivolous and that, if the stay is declined and the appeal succeeds, the appeal will be rendered nugatory.
- An arguable appeal need not be one that must necessarily succeed.
Court orders
#- 1.Stay of execution of the judgment of the High Court dated 11th November 2021 and delivered on 15th November 2021 pending the hearing and determination of the appeal (prayer 3 of the application dated 21st February 2022)
- 2.Costs of the application to be costs in the appeal
- On appeal from
- High Court
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Energy & Petroleum Regulatory Authority (previously known as Energy Regulatory Commission) v Gitson Energy Limited & 5 others (Civil Appeal (Application) E043 of 2022) [2024] KECA 116 (KLR)", Case Analysis (2024). Application dated 21st February 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/116/eng@2024-02-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.