Kariuki & 2 others v National Environment Management Authority & another (Environment and Planning Appeal E001 of 2026) [2026] KEELC 1905 (KLR)
The bottom line
#A Kenyan court halted new floors on a disputed apartment project but let finishing works continue, warning that unexplained delays weaken stay applications.
What this practically means
#Executive summary
#Key legal issues
#Stay of execution pending appeal under Order 42 Rule 6
A limited and conditional stay was appropriate: the delay was inordinate and no irreparable environmental harm from the remaining works was shown, but a conditional stay preserved the subject matter of the appeal and upheld the precautionary principle
The Court found the three-month delay unexplained and therefore inordinate, a weighty factor against discretionary relief. The Applicants did not demonstrate irreparable harm from finishing and landscaping works, which the 2nd Respondent showed were necessary for vegetation restoration and to avoid an abandoned site. Balancing the Applicants' Article 42 interest against the 2nd Respondent's commercial prejudice, the Court granted only a limited, conditional stay to keep the appeal from being rendered nugatory.
Expungement of the Replying Affidavit for lack of corporate authority
The objection was declined; the deponent's authority was presumed as he had previously appeared in the NET record without objection and no prejudice was demonstrated
Although alive to the requirement for corporate authorization, the Court held that Article 159(2)(d) requires it to eschew the tyranny of technicalities. Following Dharamshi Hansraj Shah v National Bank of Kenya Ltd, an affidavit is not struck out for want of a formal board resolution where the deponent's connection to the company is clear and undisputed and no prejudice arises.
Whether the appeal is arguable
The Memorandum of Appeal raises issues on the doctrine of functus officio and the scope of the NET's review jurisdiction, making the appeal arguable, though not warranting blanket unconditional relief
The Court observed that the appeal raises the question whether NET became functus officio after its 31st October 2025 judgment and the scope of its review jurisdiction. These questions made the appeal arguable with a probability of success, but the delay and the nature of the outstanding works weighed against an unconditional stay, which risked an abandoned ghost site, while full completion would render the appeal academic.
Legal principles established
#- Stay of execution pending appeal requires substantial loss, absence of unreasonable delay, and security, and the discretion must be exercised so as not to prevent the appeal from being heard
- In stay applications the applicant must demonstrate either irreparable injury not compensable by damages or that the appeal will be rendered nugatory if stay is refused
- In environmental and land matters involving residents' associations, the Court must be guided by Articles 42, 69 and 70 of the Constitution and the precautionary principle under EMCA
- An affidavit will not be struck out for lack of a formal board resolution where the deponent's connection to the company is clear and undisputed
Court orders
#- 1.Pending the hearing and determination of the appeal, the 2nd Respondent shall immediately cease all construction works including construction of any additional floors, save for essential finishing and landscaping works necessary to prevent environmental runoff, soil erosion, or weather damage to the existing superstructure
- 2.The Applicants shall compile, file and serve the Record of Appeal within 21 days from the date of the ruling; any Supplementary Record of Appeal shall be filed within 5 days thereafter
- 3.Mention on 30th April 2026 for further directions on the hearing of the appeal
- 4.Costs of the application to abide the outcome of the appeal
- On appeal from
- National Environment Tribunal
- NET Appeal No. 7 of 2025
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act (Cap 21); Order 42 Rule 6(1) and Order 51 Rule 1 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kariuki & 2 others v National Environment Management Authority & another (Environment and Planning Appeal E001 of 2026) [2026] KEELC 1905 (KLR)", Case Analysis (2026). Not stated on the face of the judgment (appeal from NET Appeal No. 7 of 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1905/eng@2026-04-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.