Mbatia & another v Director General, National Environment Management Authority (NEMA) & 101 others
The bottom line
#A Kenyan court refused to pause a demolition order because the applicants waited over three years after judgment before asking, with no explanation for the delay.
What this practically means
#Executive summary
#Key legal issues
#Whether the application for stay was brought without unreasonable delay
Filing the stay application more than three years after the Tribunal's judgment, with no explanation for the delay, fails the order 42 rule 6 test of unreasonable delay
The judgment was delivered on March 5, 2019 and the motion filed on May 16, 2022, over three years later. The court noted that what constitutes unreasonable delay depends on the circumstances of each case, but the Appellants offered no explanation at all. Although delay alone does not automatically warrant denial, the court found the application failed this test and dismissed it on that basis.
Whether the Appellants demonstrated substantial loss
The only demonstrated substantial loss was the demolition of the social hall before the appeal is heard, which would render the appeal nugatory if it succeeded
The court found no evidence of the alleged use of public funds and noted funds could be held pending the appeal. However, demolition of the social hall before the appeal is determined would cause substantial loss if the appeal succeeded. Despite finding substantial loss, the court dismissed the application because of the inordinate, unexplained delay.
Legal principles established
#- An application for stay of execution must be made without unreasonable delay; unexplained delay of years defeats the application even where substantial loss is shown
- Substantial loss is a qualitative concept, not a mathematical formula
Court orders
#- 1.The notice of motion dated May 16, 2022 seeking stay of execution of the Tribunal's judgment of March 5, 2019 is dismissed
- 2.Costs of the application awarded to the 2nd respondent
- On appeal from
- National Environment Tribunal
- Tribunal Appeal No 177 of 2016
- Jurisdiction invoked
- Appeal from the National Environment Tribunal to the Environment and Land Court under the Environment Management and Co-ordination Act; interim relief sought under order 42 rule 6 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbatia & another v Director General, National Environment Management Authority (NEMA) & 101 others", Case Analysis (2022). Environment and Land Appeal 34 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15161/eng@2022-11-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.