Nicholus v Attorney General & 7 others; Kenya Power & Lighting Company Limited & 5 others (Interested Parties) (Civil Application E209 of 2024) [2026] KECA 629 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a bid to halt mining in Siaya, ruling that proving an appeal is arguable is not enough — you must also prove real, irreparable harm.
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 Court has jurisdiction under rule 5(2)(b) given the allegation that the Notice of Appeal was filed out of time
- 2.Whether the intended appeal is arguable
- 3.Whether the appeal, if successful, would be rendered nugatory absent an injunction pending appeal
Key legal issues
#Jurisdiction premised on a possibly late Notice of Appeal
The Court declined to determine the competence of the appeal, holding that a notice of appeal duly filed suffices to invoke its jurisdiction and that the proper procedure to impugn a notice of appeal had not been invoked.
The respondents contended the Notice of Appeal was filed out of time and unregularized, depriving the Court of jurisdiction. The applicant asserted timely filing. The Court noted there exists a procedure under its Rules to impugn a notice of appeal or appeal which no party had invoked, making determination premature, and refrained lest it prejudice a party. It held that all that is required to invoke its jurisdiction is a notice of appeal duly filed.
Arguability of the intended appeal
The intended appeal was arguable: it raised bona fide questions on whether public interest can justify conduct found unlawful, the application of Article 70, and the weight of official reports confirming environmental harm.
The threshold for arguability is deliberately low; a single bona fide point suffices. The applicant challenged the ELC's exercise of discretion in declining conservatory relief despite finding the mining unlicensed and environmentally deleterious. The Court found the questions neither idle nor fanciful, touching on balancing constitutional rights, statutory compliance and judicial discretion, without expressing a concluded view.
Whether the appeal would be rendered nugatory absent an injunction
The nugatory limb failed: the applicant did not demonstrate by evidence irreparable harm; the land belongs to the respondents, the suit remains unconcluded, and an effective remedy could be fashioned at the conclusion of the appeal.
Citing Reliance Bank v Norlake, the test turns on whether what is sought to be restrained is reversible or compensable. Environmental protection, though constitutionally important, does not automatically satisfy the nugatory test; demonstrable prejudice must be shown. Halting mining would carry significant economic and social consequences including disruption of livelihoods, while the Court could craft effective remedies later.
Legal principles established
#- The two limbs of rule 5(2)(b) - arguability and nugatory - are conjunctive, not alternative; an applicant must satisfy both.
- Alleged environmental harm does not automatically satisfy the nugatory test; relief under rule 5(2)(b) must be grounded in demonstrable, irreparable prejudice proved by evidence, not generalized apprehension.
Court orders
#- 1.The Notice of Motion dated 11th October 2024 is dismissed in its entirety
- 2.Costs shall abide 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 Siaya
- Petition with application dated 1st September 2020
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act and rule 5(2)(b) of the Court of Appeal Rules, 2022
Relief refused
#Injunction restraining the 2nd and 3rd respondents from mining on L.R. Nos. Siaya/Ramba/705, 711 and 714 pending the hearing and determination of the appeal
The intended appeal was arguable but the applicant failed to demonstrate that the appeal would be rendered nugatory absent interim relief; any harm could be remedied by appropriate relief at the conclusion of the appeal
Costs
Costs shall abide 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 two limbs are conjunctive, not alternative. That position has been restated by this Court ad infinitum and warrants no further debate.
A rule 5(2)(b) relief is not granted on the strength of generalized apprehension or principled concern alone. It must be grounded in demonstrable prejudice that cannot be adequately addressed through the ordinary processes of the law.
All that is required to invoke this Court’s jurisdiction is a notice of appeal duly filed.
Accordingly, the Notice of Motion dated11th October 2024 is dismissed in its entirety. Costs shall abide the outcome of the appeal.
Issues in the judgment
#Internal date contradiction: the ruling was dated 13th June 2024 yet the judgment records the Notice of Appeal as dated 25th June 2025, which would be over a year later and after this application of 11th October 2024; the applicant elsewhere avers it was lodged on 27th June 2024.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nicholus v Attorney General & 7 others; Kenya Power & Lighting Company Limited & 5 others (Interested Parties) (Civil Application E209 of 2024) [2026] KECA 629 (KLR)", Case Analysis (2026). Court of Appeal Civil Appeal No. E209 of 2024 (application dated 11th October 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/629/eng@2026-03-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.