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ELCDismissedPetition dated April 12, 2022 (referenced only as such)· [2023] KEELC 501 (KLR)

Njoroge v Kenya Electricity Transmission Company Limited (Environment and Land Constitutional Petition 2 of 2022) [2023] KEELC 501 (KLR)

Environment and Land Court
2 February 2023
3,240 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to pause a Kenya Power compensation case because the company could not show it would suffer real, concrete loss while its appeal was pending.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Nakuru (Mwangi Njoroge, J) determined the respondent's notice of motion dated July 14, 2022, brought under sections 1A, 1B, 3 and 3A of the Civil Procedure Act, Order 42 Rule 6 of the Civil Procedure Rules and sections 3 and 19 of the Environment and Land Court Act 2011. The respondent sought a stay of proceedings and of all consequential orders arising from the court's ruling of June 15, 2022, which directed it to deposit Kshs 13,583,581.20 in a joint interest-earning account in the names of the parties' advocates as security in a petition claiming wayleave compensation of Kshs 68,296,000 over property traversed by the Olkaria-Lessos-Kisumu transmission line. The respondent argued it had an arguable appeal, principally because the impugned ruling failed to consider its preliminary objection on jurisdiction, and that it risked contempt proceedings. The petitioner countered that no contempt proceedings existed, that the money would be preserved in a joint account and was reversible, and that the respondent had occupied her land for over twenty-two months without paying compensation. Framing the sole issue as whether stay of proceedings should be granted, the court applied Lucy Waithera Kimanga v John Waiganjo Gichuri and Bai Lin (K) Ltd v Zingo Investments. It held that stay is discretionary, requires demonstration of specific substantial loss, and that an arguable appeal alone is insufficient. The preliminary objection had been filed out of time without leave and was not properly before the court. The application was dismissed with costs.

Key legal issues

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01

Whether the respondent established grounds for stay of proceedings pending appeal

Holding

The application failed; no substantial loss was demonstrated and the alleged prejudice (contempt proceedings) was speculative

Reasoning

The court applied the Lucy Waithera Kimanga principles and Machira v East African Standard: a stay is discretionary and requires demonstration of substantial loss. The money was to be held in a joint interest-earning account, so it was reversible and would not be wasted; no contempt proceedings had been filed, so the claimed prejudice was speculative.

p. 6
02

Whether the respondent's jurisdictional preliminary objection, raised in the impugned ruling, justified a stay

Holding

The preliminary objection was filed out of time and without leave, was not properly before the court, and its omission from the ruling did not itself justify a stay

Reasoning

The court found the respondent served on April 14, 2022 filed its replying affidavit and preliminary objection only on May 25, 2022 without leave, and never alerted the court to the objection. The respondent should have sought review or a fresh motion to address jurisdiction. Late filing remained an infirmity notwithstanding the arguability of an appeal on the point.

p. 5

Legal principles established

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  • Stay of proceedings is a discretionary remedy exercised judiciously in the interest of justice, weighing pros and cons including expeditious disposal, arguability of the appeal and expeditiousness of the application
  • An arguable appeal alone is not sufficient ground to stay proceedings
  • An applicant for stay must demonstrate specific and tangible substantial loss; where no pecuniary or tangible loss is shown, stay will not be granted
  • Pleadings filed out of time and without leave are not properly before the court unless regularised

Court orders

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  1. 1.The respondent's notice of motion application dated July 14, 2022 is dismissed
  2. 2.Costs of the application to the petitioner

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3 & 3A
  • Civil Procedure RulesOrder 42 Rule 6; Order 21 Rule 5
  • Environment & Land Court Act 2011Sections 3, 19(1) & (2)
  • The Constitution of Kenya (Protection of rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 32

Cases cited (12)

  • Mundia Njeru Geteria v Embu County Government & 4 others
    [2014] eKLR
  • Ezekiel Mule Musembi v H Young & Company (EA) Limited
    [2019] eKLR
  • Kitty Njiru v Nature & Style Fun Day Events & another; Rebecca Muriuki t/a Kahari (Proposed third party)
    [2020] eKLR
  • Winfred Nkuene Kirimi v Jecinta Gakii
    [2020]
  • Mbarak Said Ali & another v Sultan Palace Development Limited
    [2021] eKLR
  • Kyangaro v Kenya Commercial Bank Limited & another
    [2004] 1 KLR 126
  • NIC Bank Limited & 2 others v Mombasa Water Products Limited
  • Lucy Waithera Kimanga & 2 others v John Waiganjo Gichuri
    [2015] eKLR
  • Daniel Walter Rasugu (Nbi Hccc No 15 of 2006); Global Tours & Travel Limited (Nairobi HC Winding Up Cause No.43 of 2000)
  • Kenya Power & Lighting Company Limited vs. Esther Wanjiru Wokabi
    [2014] eKLR
  • Bai Lin (K) Ltd & 2 others v Zingo Investments Limited & another
    [2014] eKLR
  • Machira v East African Standard (No 2)
    (2002) 2 KLR 63
Jurisdiction invoked
Sections 1A, 1B, 3 & 3A of the Civil Procedure Act; Order 42 Rule 6 of the Civil Procedure Rules; sections 3, 19(1) & (2) of the Environment & Land Court Act 2011 (the court exercising stay of proceedings jurisdiction pending an appeal to the Court of Appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Njoroge v Kenya Electricity Transmission Company Limited (Environment and Land Constitutional Petition 2 of 2022) [2023] KEELC 501 (KLR)", Case Analysis (2023). Petition dated April 12, 2022 (referenced only as such). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/501/eng@2023-02-02

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