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ELCDismissedNot stated in the judgment· [2024] KEELC 1651 (KLR)

Water Resources Authority v Tindress [Farm]

Environment and Land Court
14 March 2024
3,104 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~12 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court refused to pause Water Tribunal proceedings, holding that an arguable appeal alone is not enough to justify a stay.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Nakuru (A.O. Ombwayo, J) determined the appellant Water Resources Authority's Notice of Motion dated 21st December 2023, filed in its appeal against a ruling of Hon. Bernard Ochoi of the Water Tribunal delivered on 8th December 2023 in Nairobi Water Tribunal Appeal No. TRWAC/E001/2023. The tribunal had granted a temporary injunction restraining the appellant from decommissioning the Tindress dam in Nakuru County. The appellant sought an injunction staying the tribunal's orders and a stay of the tribunal proceedings pending the appeal, contending that the dam posed a serious public risk, particularly after the 9th May 2018 breach of the respondent's other dam which killed 48 people, and that the respondent had been directed to decommission the dam and had initially submitted an approved decommissioning plan before departing from that compliance order. The respondent, through its general manager Vinoj Jaya Kumar, opposed the application, arguing the tribunal's order was a negative order incapable of being stayed, that the dam had been redesigned and made safe, and that the appellant had not shown any harm. The court framed two issues: whether an injunction should issue staying the tribunal's orders, and whether the tribunal proceedings should be stayed. It declined the injunction, holding that determining it would be akin to determining the appeal at an interlocutory stage. On stay of proceedings, applying Order 42 Rule 6(1) of the Civil Procedure Rules and Lucy Waithera Kimanga v John Waiganjo Gichuri, the court held that arguability of an appeal alone is insufficient; the appellant had not shown how continuing tribunal proceedings would render its appeal nugatory. The application was dismissed with costs to the respondent.

Key legal issues

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01

Whether an injunction should be granted staying the orders issued on 8th December 2023 in Water Tribunal Appeal No. TRWAC E001/2023

Holding

The prayer for an injunction staying the tribunal's orders was refused because granting it would effectively determine the appeal at an interlocutory stage.

Reasoning

The tribunal had granted a temporary injunction restraining decommissioning of the Tindress dam. The appellant, aggrieved, appealed to this court. The court reasoned that to decide whether an injunction should issue against that order would require delving into the merits of the pending appeal, which cannot be done at an interlocutory stage; therefore the relief could not be granted at that stage of the proceedings.

p. 5
02

Whether an order of stay of proceedings should issue in Water Tribunal Appeal No. TRWAC E001/2023 pending the appeal

Holding

Stay of proceedings was refused because the appellant did not demonstrate that continuing tribunal proceedings would render its appeal nugatory.

Reasoning

Applying Order 42 Rule 6(1) of the Civil Procedure Rules and Lucy Waithera Kimanga v John Waiganjo Gichuri, the court held that an arguable appeal is only one factor; the applicant must show prejudice. The appellant had merely stated in a generalized manner that its appeal would be rendered nugatory without demonstrating how continuing the tribunal proceedings would cause it prejudice. The application was therefore dismissed with costs.

p. 7

Legal principles established

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  • An arguable appeal alone is insufficient to justify a stay of proceedings; the applicant must demonstrate prejudice or that the appeal will be rendered nugatory if proceedings continue.
  • An order of stay of proceedings pending appeal cannot be used to obtain, at an interlocutory stage, the substantive relief sought in the appeal.

Court orders

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  1. 1.The appellant's Notice of Motion application dated 21st December 2023 is dismissed.
  2. 2.Costs of the application awarded to the respondent.
On appeal from
Water Tribunal
Nairobi Water Tribunal Appeal No. TRWAC/E001/2023
Jurisdiction invoked
Appeal from the Water Tribunal (Water Act); interlocutory application under Order 42 Rule 6(1) of the Civil Procedure Rules

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, "Water Resources Authority v Tindress [Farm]", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1651/eng@2024-03-14

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