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Court of AppealAllowedCivil Appli 303 of 2006 (UR 170/2006)

Oilcom Kenya Limited v Permanent Secretary Ministry of Roads & Public Works & another [2006] KECA 7 (KLR)

Court of Appeal
22 December 2006
EOE.O. O'KubasuJOJ.W. Onyango OtienoWDW.S. Deverell
2,334 words in judgment
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The bottom line

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Kenya's Court of Appeal stopped the demolition of Oilcom's Mlolongo petrol station, ruling a successful appeal would be meaningless if the property was destroyed first.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi on a Notice of Motion by Oilcom Kenya Limited brought under rules 5(2)(b) and 42 of the Court of Appeal Rules, seeking a stay of demolition of a petrol station and structures on LR No. 17645/2 at Mlolongo pending an intended appeal against part of the ruling of Wendoh, J in High Court Miscellaneous Civil Application No. 701 of 2006 delivered on 29th November 2006. In that ruling the High Court granted the applicant leave to apply for judicial review orders of certiorari and prohibition but declined to order that the grant of leave operate as a stay. Before the Court of Appeal, counsel for the applicant argued that the Judge erred in directing an inter partes hearing of an ex parte leave application under Order LIII, and that the applicant's titled property was not among the structures gazetted for demolition, as confirmed by the Ag. Director of Surveys. Counsel for the respondents maintained that the Judge exercised her discretion properly and that damages would suffice. The court restated the settled twin principles under rule 5(2)(b): the intended appeal must be arguable and, if successful, must not be rendered nugatory absent a stay. The court found serious arguable issues on both the ex parte hearing point and the non-encroachment of the plot on the road reserve, and held that demolition of the property, including underground tanks containing 200,000 litres of petrol, would render any successful appeal nugatory. The court allowed the motion, granted a stay in terms of prayer 3 of the Notice of Motion, confined expressly to LR No. 17645/2, and ordered costs of the motion to be in the intended appeal. This is an interlocutory ruling; the High Court decision was not affirmed, reversed, or varied, so no appellate treatment of the decision below applies.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the intended appeal is arguable (not frivolous)
  2. 2.Whether, unless a stay of demolition is granted, the intended appeal, if successful, would be rendered nugatory

Key legal issues

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01

Whether the applicant had demonstrated an arguable appeal under rule 5(2)(b)

Holding

Yes. The intended appeal raised serious issues, including whether the superior court had discretion to order an inter partes hearing at the leave stage contrary to Order LIII, and whether the applicant's titled property was part of the land slated for demolition, given the Director of Surveys' confirmation that it did not encroach on the road reserve.

Reasoning

The court found the application for leave to apply for judicial review ought to have been made ex parte under Order LIII rule 1(2), yet the Judge ordered an inter partes hearing, making the point arguable. Further, the applicant held title to LR No. 17645/2, which the Judge had acknowledged, and the Ag. Director of Surveys had confirmed in writing that the parcel does not encroach on the Mombasa road reserve, whereas the gazetted compulsory acquisition related to LR No. 1504/7. These constituted serious arguable issues.

02

Whether the intended appeal would be rendered nugatory if stay was not granted

Holding

Yes. Without a stay, the applicant's property, including underground tanks containing 200,000 litres of petrol, would be demolished before the appeal was heard, rendering any success in the appeal nugatory as there would be nothing to salvage.

Reasoning

The court reasoned that demolition is irreversible: if the property with its underground tanks containing 200,000 litres of petrol were demolished pending the hearing of the appeal, a successful appeal could not restore the position. The destruction of the petrol station and structures would leave nothing to be salvaged, so the intended appeal would be rendered nugatory absent a stay.

p. 5

Legal principles established

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  • Under rule 5(2)(b) of the Court of Appeal Rules, the jurisdiction is original and discretionary, and an applicant must satisfy the twin principles that the intended appeal is arguable and that unless a stay or injunction is granted, the appeal or intended appeal, if successful, would be rendered nugatory.

Court orders

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  1. 1.A stay granted in terms of prayer 3 of the Notice of Motion dated 4th December 2006, namely a stay of demolition of the petrol station and all structures erected on LR No. 17645/2 pending hearing and final determination of the intended appeal from the order of Wendoh, J dated 29th November 2006 in H.C. Misc. Civil Application No. 701 of 2006
  2. 2.Costs of the motion to be in the intended appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

EO
majority
JO
majority
WD
majority
On appeal from
High Court of Kenya
H.C. Misc. Civil Application No. 701 of 2006
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

For the applicant to succeed, it must satisfy the twin guiding principles that the intended appeal is arguable, that is that it is not frivolous and that unless a stay or injunction is granted the appeal or intended appeal, if successful would be rendered nugatory
p. 3Rule 5(2)(b) jurisdiction and principles
It is arguable whether the superior court had discretion to order for inter partes hearing when the rules provide that the application shall be made ex parte.
p. 4Arguable point - ex parte leave application under Order LIII
We therefore grant a stay in terms of prayer 3 of the Notice of Motion dated 4th December, 2006. Costs of the motion to be in the intended appeal.
p. 5Final orders and costs

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, "Oilcom Kenya Limited v Permanent Secretary Ministry of Roads & Public Works & another [2006] KECA 7 (KLR)", Case Analysis (2006). Civil Appli 303 of 2006 (UR 170/2006). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/7/eng@2006-12-22

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