Kenya Pipeline Company Limited v Kurugu Food Complex (Civil Application E310 of 2024) [2024] KECA 1507 (KLR)
The bottom line
#The Court of Appeal paused a Kshs. 49.9 million judgment against Kenya Pipeline until its appeal is decided, citing public interest and irreparable costs.
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 and not frivolous
- 2.Whether, unless the relief sought is granted, the appeal will be rendered nugatory if it succeeds
Key legal issues
#Whether the intended appeal is arguable
The intended appeal was arguable, raising non-frivolous grounds including whether the trial court decided an unpleaded issue (Pipe Line No. 2) thereby denying the applicant a fair hearing, and whether public interest was considered
The Court examined the memorandum of appeal and found several bona fide points, principally that the trial judge made findings on Pipe Line No. 2 which had not been pleaded, raising a fair-hearing concern, and that public interest in the pipeline was arguably not weighed. A single arguable issue suffices; the applicant need not establish a multiplicity of grounds. The Court declined to elaborate further to avoid embarrassing the bench seized of the appeal.
Whether the appeal will be rendered nugatory if stay is not granted
Yes - the enormous financial outlay of paying mesne profits of Kshs. 49,934,160 and removing and reinstalling the pipeline, and the vast populace served by the pipeline, would render a successful appeal an academic exercise
Applying the Kinyanjui v Ketter test, the Court asked whether what is to be stayed is reversible or compensable by damages. Re-routing the pipeline and paying the decretal sum would involve massive expenditure and business interruption across Kenya and neighbouring countries that could not practically be reversed or compensated, meaning success on appeal would be hollow. Public interest, the applicant being a public body, weighed in its favour.
Legal principles established
#- An applicant under rule 5(2)(b) must satisfy the twin principles of an arguable appeal and that the appeal will be rendered nugatory if the relief is not granted
- An arguable appeal need not be one that will succeed, but one that ought to be argued fully; a single arguable issue suffices
- In assessing nugatory aspect, the court asks whether what is sought to be stayed is reversible, or if not reversible, whether damages will reasonably compensate the aggrieved party, each case depending on its own facts
- The discretion under rule 5(2)(b) to grant a stay or injunction is wide, unfettered provided it is just, and original
Court orders
#- 1.An order of stay of execution of the judgment of the trial court delivered on 23rd May 2024 in Nairobi ELC Case No. 589 of 2010 pending the hearing and determination of the applicant's appeal
- 2.Costs of the application to abide the outcome of the appeal
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, Nairobi
- ELC No. 589 of 2010
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Costs of the application and of the appeal borne by the respondent
The Court instead ordered that costs of the application abide the outcome of the appeal
Costs
The costs of the application shall abide by the outcome of the appeal.
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.
The applicant must however satisfy the Court on the twin principles first, that the intended appeal is arguable, or that it is not frivolous, and secondly, that unless the relief sought is granted, the appeal will be rendered nugatory if it succeeds.
an arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully before the Court
a single issue will suffice and that an applicant need not establish a multiplicity of arguable issues
Whether or not an appeal will be rendered nugatory depends on whether or not what is sought to be stayed if allowed to happen is reversible; or if it is not reversible whether damages will reasonably compensate the party aggrieved.
We therefore allow the application in terms of prayer 3 and grant an order of stay of execution of the judgment of the trial court delivered on 23rd May 2024 in Nairobi ELC Case No.589 of 2010 pending the hearing and determination of the applicant’s appeal. The costs of the application shall abide by the outcome of the appeal.
Issues in the judgment
#The judgment does not state the number of the application before the Court of Appeal; the case number given is the trial court number with the applicant's internal application date
Internal inconsistency in the grace period dates: the stay of 30 days is said to have lapsed on 22nd June 2024 yet was extended for 180 days, while the trial court's 180-day grace period is stated to expire on 23rd November 2024
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Pipeline Company Limited v Kurugu Food Complex (Civil Application E310 of 2024) [2024] KECA 1507 (KLR)", Case Analysis (2024). Civil Application No. E321 of 2024 (as stated on the application dated 18th June 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1507/eng@2024-10-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.