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Case Brief · caselaw.co.ke
Court of AppealPartially AllowedNot stated in the judgment text (appeal from ELC Petition No. E002 of 2024; application dated 6th September 2024)· [2025] KECA 511 (KLR)

Karim Sherali Kassam & 11 others v Stephen Gathuita Mwangi & 5 others

Court of Appeal of Kenya
21 March 2025
3,691 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal froze a contested Parklands apartment development, ruling that possible irreversible environmental harm outweighed builders' interests while the appeal is heard.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Jamila Mohammed, Tuiyott and Ochieng, JJ.A) on a Notice of Motion dated 6th September 2024 brought under Rule 5(2)(b) of the Court of Appeal Rules by applicants aggrieved by a ruling of the Environment and Land Court in ELC Petition No. E002 of 2024 delivered on 15th August 2024. The underlying petition challenges the construction of 85 apartments on 19 levels on L.R. No. 209/20729, City Park Drive, Parklands, alleging that development is proceeding without valid development permission under PLUPA, a NEMA EIA licence under EMCA, and other approvals. The applicants sought a stay of execution of the trial court's orders, maintenance of the status quo as of 1st January 2024, and a stay of proceedings; the stay of proceedings was withdrawn at the hearing. The court framed a single issue: whether the Rule 5(2)(b) threshold was met. Applying the twin principles in Stanley Kang'ethe Kinyanjui v Tony Ketter, it held that the question whether activities commenced without the requisite NEMA licence was arguable, and that continued construction without environmental safeguards could cause irreversible harm, rendering the appeal nugatory. It rejected the argument that the orders to be stayed were negative orders, holding that orders compelling compliance measures were positive orders capable of execution. Balancing the prejudice, and noting the conflicting accounts of the developers and the county government on the status of approvals, the court allowed the application, ordered the status quo maintained as of the date of the ruling until the determination of the appeal, and directed costs to be in the appeal.

Key legal issues

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01

Arguability of the intended appeal under Rule 5(2)(b)

Holding

The question whether the alleged development activities commenced without the requisite NEMA licence and other approvals is an arguable point meriting further consideration, satisfying the first limb of the Rule 5(2)(b) test.

Reasoning

The applicants raised points of law, including whether the 5th and 7th respondents were the only bodies mandated under PLUPA to grant development permission, and whether specific annexures (AA4-AA8) were not development permissions within the meaning of Sections 57, 58 and 59 of PLUPA and Section 58 of EMCA. Since one bona fide arguable ground suffices, the challenge to whether activities commenced without the requisite NEMA licence and approvals was sufficient.

p. 8
02

Nugatory value of the intended appeal

Holding

If construction and development activities continue without proper environmental safeguards and approvals, the potential harm to the environment and public interest could be irreversible, rendering the appeal nugatory.

Reasoning

The applicants alleged construction of 85 apartments on 19 levels would be deleterious to the environment, grounded on contraventions of PLUPA and EMCA. Drawing on the principle that each case depends on its own facts, the court found potential environmental harm irreversible and not reasonably compensable by damages, satisfying the nugatory limb.

p. 8
03

Whether the orders to be stayed were negative orders incapable of execution

Holding

The orders issued by the trial court were positive orders, as they compelled specific compliance measures by named respondents, and were therefore capable of being stayed.

Reasoning

The 2nd to 4th respondents argued the orders were negative and incapable of execution. The court examined the trial court's orders compelling the 5th, 11th and 13th respondents to take immediate measures to prevent environmental harm, and restraining excavation until dust covers were installed under NEMA supervision. It held these required specific compliance measures and were positive orders.

p. 8
04

Balance of prejudice and preservation of the status quo

Holding

Balancing the interests of all parties, it was just and equitable to preserve the status quo and prevent potential environmental degradation, with the status quo maintained as of the date of the ruling.

Reasoning

While the 2nd to 4th respondents claimed to hold the necessary permits and mitigation measures, the 5th respondent painted a different picture, asserting the 2nd respondent was proceeding without an approved EIA Study Report or EIA Licence. Weighing this conflict, and the discretionary nature of Rule 5(2)(b) requiring the exercise to be judicious and in the interests of justice, the court found preservation of the status quo appropriate to protect the subject matter and the environment.

p. 8

Legal principles established

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  • A party seeking orders under Rule 5(2)(b) of the Court of Appeal Rules must satisfy the twin principles: that the appeal is arguable (a single bona fide arguable ground suffices) and that, if the orders sought are not granted, the appeal will be rendered nugatory.
  • Orders of a trial court that require specific compliance measures by named parties are positive orders capable of execution and stay, notwithstanding that they may otherwise operate as restraint.

Court orders

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  1. 1.Application allowed
  2. 2.Status quo on the suit property L.R. No. 209/20729 (original No. 209/870/3/5) - City Park Drive, Parklands, to be maintained as of the date of the ruling, until the hearing and determination of the appeal
  3. 3.Costs to be in the appeal
On appeal from
Environment and Land Court
ELC Petition No. E002 of 2024
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules - discretionary power to order a stay of execution, an injunction or a stay of further proceedings where a notice of appeal has been lodged

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Karim Sherali Kassam & 11 others v Stephen Gathuita Mwangi & 5 others", Case Analysis (2025). Not stated in the judgment text (appeal from ELC Petition No. E002 of 2024; application dated 6th September 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/511/eng@2025-03-21

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