Carzan Flowers Kenya Limited & another v Mago & 18 others
The bottom line
#Kenya's Environment and Land Court confirmed you can appeal its decisions to the Court of Appeal without permission, and granted a stay of execution backed by a bank guarantee.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction - whether leave under Rule 11(3) ARO is required before appealing
Preliminary objection dismissed; the Applicant has an automatic right of appeal under Section 16 of the ELC Act, obviating the need for leave.
The court noted the conflict between Rule 11(3) of the ARO (leave required) and Section 16 of the ELC Act (appeals as of right). Since the Applicant chose to approach the court by way of appeal rather than a reference, Section 16 of the ELC Act applies, giving an automatic right of appeal to the Court of Appeal. The court also noted its earlier recommendation to harmonise the ARO and EMCA procedures.
Stay of execution pending appeal
Stay granted; the application was filed without unreasonable delay and security by bank guarantee was offered.
Applying Order 42 Rule 6, the court found the application filed within a month of the ruling (no unreasonable delay), security of Kshs 1,580,995 by bank guarantee offered, and the purpose of stay being preservation of the subject matter so the appeal is not rendered nugatory. Concerns about the wording of the guarantee were remedied by directing a fresh guarantee citing this suit.
Legal principles established
#- Where a party appeals a decision of the ELC under Section 16 of the ELC Act, it has an automatic right of appeal to the Court of Appeal and need not seek leave under Rule 11(3) of the Advocates Remuneration Order.
Court orders
#- 1.Stay of execution of the Ruling delivered on 17/11/22 granted pending the hearing and determination of the Applicant's intended Appeal.
- 2.Applicant to within 14 days execute a fresh bank guarantee of Kshs. 1,580,995.00 citing this suit as the matter in respect of which the guarantee is given.
- 3.The guarantee shall be renewed every 3 months before its lapse during the pendency of the intended appeal.
- 4.In the event of failure by the Applicant to abide by (B) and (C) above, the orders of stay of execution shall stand vacated.
- 5.Costs of the application shall be in the cause.
- Jurisdiction invoked
- Order 42 Rule 6(1) & (2) of the Civil Procedure Rules and Section 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Carzan Flowers Kenya Limited & another v Mago & 18 others", Case Analysis (2023). Miscellaneous Application E009 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18014/eng@2023-06-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.