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Court of AppealDismissedCivil Application (Motion) arising from ELC No. 393 of 2018; record of appeal C.A. No. E874 of 2023· [2024] KECA 1596 (KLR)

Nairobi County Government v Nuclear Investment Limited (Civil Appeal (Application) E874 of 2023) [2024] KECA 1596 (KLR)

Court of Appeal
8 November 2024
SKS. Ole KantaiJMJ. MativoMGM. Gachoka
1,276 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that proving an appeal is arguable alone is not enough to pause ongoing court proceedings; the appellant also had to show real harm.

What this practically means

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Executive summary

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Nairobi County Government (the applicant/defendant) moved the Court of Appeal for a stay of proceedings in ELC No. 393 of 2018 (Nairobi) pending appeal, and for setting aside of ELC proceedings of 28th March 2023, at which the applicant and its counsel were absent and the case was heard and concluded. The applicant alleged violation of its constitutional rights to be heard (Articles 25 and 50(1)) and to make representations in an administrative action, and complained that its application to the High Court to set aside the proceedings had been dismissed and that a ruling of 12th October 2023 went against it. The respondent (Nuclear Investment Limited) opposed, showing the hearing date had been taken by consent, counsel was in court that morning but absent at the allocated noon slot, and the applicant had also failed to file written submissions even after an extension. Applying the settled two-limb test summarized in Stanley Kangethe Kinyanjui v Tony Ketter & Others, the Court found the proposed grounds of appeal - denial of the right to be heard and to present its case - arguable, reiterating that an arguable point need not succeed. However, on the nugatory limb, the Court noted the applicant's non-compliance with filing submissions and that ELC judgment was imminent; it was not satisfied the appeal would be rendered nugatory without a stay, since the ELC judgment would determine the parties' rights and they would retain their options. The Motion was dismissed with costs to the respondent. This decision binds the High Court and subordinate courts on the two-limb test for stay of proceedings pending appeal.

Key legal issues

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01

Arguability of the intended appeal

Holding

The grounds that the applicant was denied an opportunity to be heard and to present its case are arguable points on appeal

Reasoning

The Court observed that a record of appeal had been filed (C.A. No. E874 of 2023) and that the proposed grounds - denial of the opportunity to be heard and to present its case contrary to constitutional rights - were arguable. It reiterated the settled position that an arguable point is not one that must succeed, discharging the first limb of the Rule 5(2)(b) jurisdiction test.

p. 3
02

Nugatory value absent stay

Holding

The appeal would not be rendered nugatory if stay was not granted, since judgment in the ELC would determine the parties' rights and parties would retain their options thereafter

Reasoning

Judgment in the ELC was scheduled for 15th February 2024, earlier than the delivery of this ruling. The Court was not satisfied that refusing stay would render the appeal nugatory: the ELC judgment would determine the rights of the parties and they would have an opportunity to exercise their options whichever way. Failing the second limb, the application had to fail.

p. 3

Legal principles established

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  • An applicant for stay of proceedings pending appeal must demonstrate both that the appeal is arguable and that it would be rendered nugatory absent stay
  • An arguable point on appeal need not be one that must succeed; it suffices that it is not frivolous

Court orders

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  1. 1.The Motion is dismissed with costs to the respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 25 and 50(1)
  • Civil Procedure Rules
  • Fair Administrative Action Act

Cases cited (2)

  • JMK v MWM & Another
    [2015] eKLR
  • Stanley Kangethe Kinyanjui v Tony Ketter & Others
    [2013] eKLR
On appeal from
Environment and Land Court, Nairobi
ELC No. 393 of 2018
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (invoked through the Civil Procedure Rules and constitutional Articles per the Motion; the Court applied the conventional arguability/nugatory test for stay pending appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Nairobi County Government v Nuclear Investment Limited (Civil Appeal (Application) E874 of 2023) [2024] KECA 1596 (KLR)", Case Analysis (2024). Civil Application (Motion) arising from ELC No. 393 of 2018; record of appeal C.A. No. E874 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1596/eng@2024-11-08

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.