Seii & 10 others v Nairobi City County Government & 8 others
The bottom line
#Kenya's Court of Appeal has halted a Kilimani development until an environmental appeal is heard, ruling that irreversible environmental harm cannot be fixed with money.
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, unless a stay of execution is granted, the intended appeal would be rendered nugatory
Key legal issues
#Arguability of the intended appeal
The appeal was arguable because it raised issues of legality of the development for want of approvals and whether the ELC granted unpleaded orders.
The Court noted the Memorandum of Appeal questioned the legality of the developments allowed by the ELC for want of requisite approvals and their environmental effect, and alleged the ELC granted orders not pleaded. Since an arguable appeal need not necessarily succeed but only deserve the court's attention, the appeal was held not frivolous and indeed arguable.
Whether the appeal would be rendered nugatory absent a stay
Yes - irreversible environmental harm cannot be compensated by damages, so if construction proceeded and the appeal succeeded, the appeal would be nugatory.
The Applicants maintained the proposed developments would adversely affect the environment; the 9th Respondent contended any harm was compensable in damages. The Court held environmental effects are irreversible and not adequately compensable by damages, so allowing construction before the appeal would render a successful appeal nugatory.
Legal principles established
#- An applicant for stay under Rule 5(2)(b) must satisfy the twin requirements of an arguable appeal and that the appeal would be rendered nugatory absent a stay.
- Environmental effects that are irreversible cannot be adequately compensated by damages, and this may render a successful appeal nugatory.
- The object of the Rule 5(2)(b) discretion is to preserve the subject matter of the appeal.
Court orders
#- 1.Conservatory order stopping, halting and discontinuing any development and construction activities on the property known as Nairobi/Block 17/392 - Kilimani Area, Nairobi by the 9th Respondent or any other person, pending the hearing and determination of the appeal
- 2.Costs of the application to abide by the outcome of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Nairobi
- ELC Petition No E019 of 2024
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2022
Relief refused
#Stay of proceedings in ELC Petition No E019 of 2024 pending the appeal
The Court granted only prayer 4 of the application (conservatory order); the stay of proceedings prayer was not granted
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.
An applicant has to satisfy two requirements. Firstly, that he or she has an arguable appeal. Secondly, unless an order of stay is granted, the intended appeal would be rendered nugatory.
We are of the view that since effects on the environment are irreversible, they cannot be adequately compensated by damages.
Consequently, we grant prayer 4 of the application dated 27th September 2024, with the result that we hereby grant a conservatory order stopping, halting and discontinuing any development and construction activities on the property known as Nairobi/ Block 17/392- Kilimani Area, Nairobi by the 9th Respondent or any other person, pending the hearing and determination of the appeal herein.
The costs of the application shall abide by the outcome of the appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Seii & 10 others v Nairobi City County Government & 8 others", Case Analysis (2024). Civil Appeal (Application) E739 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1929/eng@2024-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.