Friends of Lake Turkana Trust v Attorney General & 2 others [2016] KEELC 126 (KLR)
The bottom line
#Kenya's Environment and Land Court paused enforcement of a judgment against Kenya Power pending appeal, finding the company couldn't comply with orders beyond its control.
What this practically means
#Executive summary
#Key legal issues
#Undue delay in bringing the application under Order 42 Rule 6
The application filed on the 30th day, at the lapse of the 30 days given to comply, was within time; delay was in prosecution of the application and was attributable to the Petitioner's change of advocates and the Court's unavailability
The Court noted judgment was delivered on 19th May 2014 with 30 days granted for compliance, and the application dated 18th June 2014 was filed at the lapse of those 30 days. Although the Petitioner alleged the timing was intended to scuttle execution, the Court found the 2nd Respondent was within time. On the record, the delay lay in prosecuting the application, occasioned by the Petitioner's change of advocates and the Court's unavailability on one occasion. Hence there was no undue delay in filing.
Security for due performance
Not applicable as this is a non-monetary decree
The Court identified the three requirements of Order 42 Rule 6 and held that since the decree in question was not monetary and involved no financial obligations on either side, the security condition fell away. It anchored this on Visram J.'s ruling in Praxades Okutoyi v Medical Practitioners and Dentists Board.
Substantial loss
The 2nd Respondent demonstrated it stands to suffer substantial loss because compliance with the mandamus and sustainable-management orders would be extremely onerous and beyond its control
The Court balanced the Petitioner's right to enjoy the fruits of its judgment against the 2nd Respondent's right of appeal, which must be safeguarded from being rendered nugatory. The 2nd Respondent contended the orders extended beyond the prayers in the Amended Petition and required it to control the Governments of Kenya and Ethiopia and the management of Lake Turkana, matters beyond its capabilities. Accepting this, the Court was satisfied substantial loss had been demonstrated.
Legal principles established
#- What constitutes unreasonable delay in filing a stay application depends on the surrounding circumstances of each case
- For a non-monetary decree, the condition of security for due performance of the order under Order 42 Rule 6 does not arise
- Substantial loss entails a state of affairs that would irreparably affect or negate the essential core of the applicant as the successful party
Court orders
#- 1.Stay of execution of the Judgment delivered on 19th May 2014 granted pending the hearing and determination of the 2nd Respondent's appeal
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal); Articles 70 and 159(2)(a) and (d) of the Constitution and Sections 3, 13(7) and 18 of the Environment and Land Court Act invoked in respect of the underlying judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Friends of Lake Turkana Trust v Attorney General & 2 others [2016] KEELC 126 (KLR)", Case Analysis (2016). Not stated in the extract (Petition Judgment delivered 19th May 2014; application dated 18th June 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/126/eng@2016-06-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.