Isaac Gotoho & 2 others v Director General, Nema & another [2017] KEELC 3725 (KLR)
The bottom line
#Kenya's Environment and Land Court stopped a Runda development because continuing construction would make residents' environmental appeal pointless.
What this practically means
#Executive summary
#Key legal issues
#Whether an injunction pending appeal should issue to restrain construction under an EIA licence
Yes - the appeal is not frivolous and allowing construction would render it nugatory; a stay of construction is prudent pending the appeal
The Court found the Memorandum of Appeal raised reasonable arguments on weighty environmental issues. The 2nd Respondent had entered a construction contract with Sentrim Contracts Ltd for site preparations and earthworks, showing it was ready to proceed before the appeal was heard. Continuing construction would render the appeal nugatory, so a stay of construction was justified, tempered by timelines and security for costs.
Whether the appellant was required to meet the Order 42 Rule 6 criteria (substantial loss, Giella v Cassman Brown)
The Court applied the injunction-pending-appeal principles: the appeal must not be frivolous and the applicant must show the appeal would be rendered nugatory absent the injunction
Relying on Patricia Njeri & 3 Others v National Museum of Kenya and Kamau Muchuha v The Ripples Ltd, the Court held that it need not decide whether the tribunal was right or wrong; it need only find a reasonable argument and that the appeal would be rendered nugatory. The Court found the Memorandum of Appeal raised pertinent issues, satisfying these principles, subject to security and timelines.
Legal principles established
#- An application for injunction pending appeal is discretionary and must be exercised judicially; the court does not decide the merits of the appeal but whether it is not frivolous and whether it would be rendered nugatory
- Under Section 130(2) of EMCA, no decision or order of the tribunal shall be enforced until the time for lodging an appeal has expired or, where the appeal has commenced, until the appeal has been determined
Court orders
#- 1.Temporary injunction restraining the 2nd Respondent by itself, its servants and/or agents from continuing with the developments on the suit parcels (L.R No. 29173, 7785/345 and 7785/352) pending the hearing and determination of the appeal, in terms of prayer 3 of the Notice of Motion dated 23rd May 2016
- 2.The appellant to set the intended appeal down for hearing within 3 months from the date of the ruling, failing which the orders issued shall automatically lapse
- 3.The appellant to deposit Kshs. 1,500,000/= in Court as security for costs within 7 days, in default of which the order of injunction shall lapse automatically
- 4.Costs of the application to be in the Appeal
- On appeal from
- National Environment Tribunal
- NET/143/2015
- Jurisdiction invoked
- Sections 3, 13, 18 & 19 of the Environment and Land Court Act (Cap 12A) and Sections 1A, 1B, 3A & 63(e) of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Isaac Gotoho & 2 others v Director General, Nema & another [2017] KEELC 3725 (KLR)", Case Analysis (2017). Not stated in judgment (appeal against NET Appeal No. NET/143/2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3725/eng@2017-01-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.