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ELCPartially AllowedCourt of Appeal Civil Appeal No. E614/2023 (notice of motion dated 13th September, 2023)· [2024] KEELC 1752 (KLR)

Karim H. P. & 12 others v Hwaok IM & another; National Environment Management Authority (Interested Party) (Environment & Land Petition E027 of 2021) [2024] KEELC 1752 (KLR)

Environment and Land Court
11 April 2024
2,328 words in judgment
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The bottom line

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Kenya's Environment and Land Court stopped construction on a Nairobi property while an environmental appeal is decided, confirming a filed notice of appeal unlocks injunctions pending appeal.

What this practically means

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Executive summary

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The Applicants, petitioners whose environmental petition was struck out by this court on 9th June 2023 for want of jurisdiction, moved the court by notice of motion dated 13th September 2023 under Article 10 of the Constitution, the ELC Act, the Civil Procedure Act and Order 42 Rule 6(b) of the Civil Procedure Rules, seeking an injunction pending their appeal (Civil Appeal No. E614/2023, Court of Appeal, Nairobi) to restrain the Respondents from operating a school and undertaking construction and infrastructural changes on House No. 49 on LR No. 209/8349. The Respondents opposed, arguing the application was res judicata the ruling of 16th November 2021 and the judgment of 9th June 2023, that the court lacked jurisdiction, and that as licensed owners their rights were protected under Article 40 of the Constitution. The court framed two issues: res judicata and the threshold for injunction pending appeal. It held the application was not res judicata, no injunction-pending-appeal application having previously been determined, applying Spedag Inter Freight Kenya Ltd v Joyoti Structures Ltd. On jurisdiction, it reasoned that the strike-out was a negative order, but the Applicants had filed a notice of appeal as required by Order 42 rule 4, satisfying the precondition in Order 42 rule 6(b). Finding a prima facie case from the pending appeal raising rights violations, and to avoid rendering the appeal academic, the court allowed the application in part, issuing a temporary injunction pending appeal restraining the Respondents from continuing construction works on the suit property, with costs to abide the winner of the appeal.

Key legal issues

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01

Whether the application is res judicata

Holding

The application is not res judicata because no application for injunction pending appeal had previously been determined by the court.

Reasoning

The Respondents argued that prayers 2 and 4 were res judicata the ruling of 16th November 2021 and the judgment of 9th June 2023, and that the court would be sitting on appeal over its own judgment. The court held that the earlier proceedings did not involve a determination of an application for injunction pending appeal. It was persuaded by Spedag Inter Freight Kenya Ltd v Joyoti Structures Ltd, where the principles applicable to a stay pending appeal were held to differ from those applicable to other interim applications. The court also noted that a notice of appeal had been filed, so the appeal was properly before the Court of Appeal.

p. 5
02

Whether the court has jurisdiction to grant an injunction pending appeal where the judgment appealed against is a negative order (strike-out for want of jurisdiction)

Holding

The court has jurisdiction; a strike-out amounts to a negative order, but an appeal has been lodged and the Applicants complied with Order 42 rule 4 by filing a notice of appeal.

Reasoning

The Respondents submitted that Order 42 rule 6(b) applies only where there is a decree or order capable of stay, and that no appeal was pending in this court. The court reasoned that because the judgment struck out the petition for want of jurisdiction, it was a negative order and the Applicants could not seek stay of execution under Order 42 rule 6(2); however, a notice of appeal had been filed, making it a misrepresentation for the Respondents to assert there was no appeal. Compliance with the procedure for instituting an appeal, namely filing a notice of appeal, satisfied the precondition in Order 42 rule 6(b) for exercising the discretion.

p. 4
03

Whether the application meets the threshold for grant of an injunction pending appeal

Holding

Yes - the Applicants demonstrated a prima facie case by virtue of their appeal against the striking out of a petition alleging rights violations, and to preserve the utility of the appeal the injunction was granted but varied to balance the parties' interests.

Reasoning

Applying the principles in Patricia Njeri & 3 Others v National Museum of Kenya and Giella v Cassman Brown, the court considered whether granting the orders would inflict greater hardship than it would avoid. The Respondents' ownership of the property and their licences were not disputed, but the Applicants alleged infringement of their right to a clean and healthy environment through exposure to hazardous waste and noise pollution. The court found a prima facie case given the pending appeal and noted that conservatory orders had earlier been granted on 16/11/2021. To avoid rendering the appeal academic, the court allowed the application in part, restraining only continuation of construction works.

p. 5

Legal principles established

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  • Where a petition has been struck out for want of jurisdiction, which amounts to a negative order, a party may still institute an appeal by filing a notice of appeal, and Order 42 rule 6(b) empowers the court to grant a temporary injunction pending that appeal upon compliance with the procedure for instituting an appeal.
  • An application for injunction pending appeal is not res judicata where no such application has previously been determined by the court.

Court orders

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  1. 1.An order of temporary injunction pending appeal issued restraining the Respondents, their agents and/or servants from continuing with any construction works on the suit property (House No. 49 on LR No. 209/8349), granted in terms of prayer 4 in part
  2. 2.Costs of the application to abide the winner of the appeal before the Court of Appeal

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 10
  • Constitution of Kenya, 2010Article 40
  • Environment and Land Court ActSection 3
  • Civil Procedure ActSections 1A, 1B & 3A
  • Civil Procedure RulesOrder 42 Rule 6(b)
  • Civil Procedure RulesOrder 42 rule 4

Cases cited (9)

  • Peter Njoroge Ngahu v. Tehi Housing Co-op. Society
    (2012) eKLR
  • Patricia Njeri & 3 Others v National Museum of Kenya
    (2004) eKLR
  • Giella v Cassman Brown
    (1973) E.A 358
  • Kamau Muchuha v the Ripples Ltd
    Civil App. No. 186 of 1992
  • Isaac Gatoho and 2 Others v Director General, NEMA & Another
    (2017) eKLR
  • Crossland Travellers Ltd. & Another v. Molo Group Shuttle Ltd
    (2016) eKLR
  • Charles Mwangi Gilundu v. Charles Wanjohi Wathuku
    (2021) eKLR
  • Venture Capital & Credit Ltd v. Consolidated Bank of Kenya Ltd
    Nairobi Civ. Application No. 349 of 2003 (UR)
  • Spedag Inter Freight Kenya Ltd. & Another v. Joyoti Structures Ltd & Another
    (2022) EKLR
Jurisdiction invoked
Order 42 Rule 6(b) of the Civil Procedure Rules; Section 3 of the ELC Act; Sections 1A, 1B & 3A of the Civil Procedure Act; Article 10 of the Constitution

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, "Karim H. P. & 12 others v Hwaok IM & another; National Environment Management Authority (Interested Party) (Environment & Land Petition E027 of 2021) [2024] KEELC 1752 (KLR)", Case Analysis (2024). Court of Appeal Civil Appeal No. E614/2023 (notice of motion dated 13th September, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1752/eng@2024-04-11

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