Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Appeal (Application) No. 137 of 2018

Kibos Sugar & Allied Industries Ltd & 2 others v Benson Ambuti Adega & 2 others; National Environment Management Authority & another (Interested Party) [2018] KECA 73 (KLR)

Court of Appeal
7 December 2018
2,827 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal paused an order shutting down three Kibos factories, but allowed the pollution case itself to continue in the Environment & Land Court.

What this practically means

#

Executive summary

#
The applicants, three Kibos companies, moved the Court of Appeal at Kisumu under Rule 5(2)(b) of the Court Rules, sections 3A and 3B of the Appellate Jurisdiction Act and Article 159 of the Constitution, seeking a stay of execution and a stay of further proceedings in Environment & Land Court (ELC) Petition No. 8 of 2018 (Kibunja, J). The E&LC had, on 31st October 2018, issued interim orders suspending the applicants' EIA licences and prohibiting them from continuing factory operations and sugarcane milling pending hearing of the respondents' notice of motion, which alleged violations of the right to a clean and healthy environment and sought quashing of the EIA licences. The applicants argued that the E&LC lacked jurisdiction because EMCA provides a dispute-resolution mechanism through the National Environment Tribunal, and that they were denied a fair hearing; both interested parties, NEMA and the County Government of Kisumu, supported the application, while the respondents opposed it. Applying the principles in Stanley Kang'ethe Kinyanjui v Tony Ketter, the Court found one arguable ground (jurisdiction) sufficient, and additionally an arguable ground on fair hearing. On the nugatory aspect, the Court held that shutting down the factories could cause irreversible loss given the substantial investments, employment and third-party dependence, rendering the appeal nugatory even if the applicants ultimately succeeded. The Court allowed the application only in part: it stayed execution of the E&LC order of 31st October 2018 pending the inter partes hearing of the respondents' motion, but refused to stay the E&LC proceedings as this would prejudice the respondents given the pollution allegations, leaving the intended appeal to proceed. Costs of the application were placed in the intended appeal.

Questions the Court framed

#

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

  1. 1.Whether the applicants have an arguable appeal for purposes of Rule 5(2)(b)
  2. 2.Whether the appeal would be rendered nugatory if a stay of execution is not granted
  3. 3.Whether further proceedings in the E&LC should be stayed pending the hearing of the intended appeal

Key legal issues

#
01

Arguability of the intended appeal

Holding

The appeal was arguable on the jurisdiction ground and on the ground of violation of the right to fair hearing

Reasoning

The draft memorandum of appeal raised six grounds, one of which concerned the jurisdiction of the E&LC given the dispute-resolution mechanism in EMCA, and another the denial of an opportunity to be heard before the interim orders were issued. Under the Kang'ethe-Ketter principles, one arguable ground suffices.

p. 3
02

Nugatory aspect of the intended appeal

Holding

The appeal would be rendered nugatory if the order shutting down the applicants' factories remained in force, because the loss may be irreversible

Reasoning

The interim order had the effect of shutting down three factories in which the applicants had invested a colossal sum, affecting workers, farmers and the County Government. The focus is on the order sought to be stayed; suspension of licences may have irreversible effects even if the applicants ultimately succeed.

p. 3
03

Whether to stay further proceedings in the E&LC

Holding

A stay of the E&LC proceedings was refused

Reasoning

The impugned order was interim pending inter partes hearing of the respondents' motion; allegations of a health hazard from pollution made expedition appropriate, and the jurisdictional issues should first be heard and determined by the trial court, without prejudice to the intended appeal.

p. 4

Legal principles established

#
  • Rule 5(2)(b) applications require the applicant to establish an arguable appeal and that the appeal would be rendered nugatory absent the orders sought
  • A single arguable ground suffices under Rule 5(2)(b); it need not be a ground that must succeed
  • An appeal is rendered nugatory if what is sought to be stayed is irreversible or not compensable in damages

Court orders

#
  1. 1.Order staying execution of the order issued by the E&LC on 31st October 2018 pending the inter partes hearing of the respondents' notice of motion dated 25th October 2018 in ELC Petition No. 8 of 2018
  2. 2.Costs of the application to be in the intended appeal
  3. 3.Refusal of the application insofar as it sought a stay of further proceedings in the E&LC

The bench

#

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

majority
majority
majority
On appeal from
Environment & Land Court, Kisumu
KSM HC ELC Petition No. 8 of 2018
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, sections 3A & 3B of the Appellate Jurisdiction Act, and Article 159 of the Constitution

Relief refused

#

Stay of further proceedings in the E&LC pending the hearing and determination of the intended appeal

Would be prejudicial to the respondents given the urgency and allegations of pollution; the jurisdictional issues have not been heard by the trial court

p. 4

Costs

Costs of this application shall be in the intended appeal

Quotable passages

#

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

the court must be satisfied that two factors are established, that is that the applicant has an arguable appeal and that unless the orders sought are issued, the appeal may be rendered nugatory
p. 3Rule 5(2)(b) principles
Whether or not an appeal will be rendered nugatory depends on whether or not what is sought to stay if allowed to happen is reversible: or if it is not reversible whether damages will reasonably compensate the party aggrieved
p. 3Definition of the nugatory test
we allow the applicants' motion only to the extent of issuing an order staying execution of the order issued by the E&LC on 31st October 2018 pending the inter partes hearing of the respondent's notice of motion dated 25th October, 2018, in ELC Petition No. 8 of 2018
p. 4Final orders

Issues in the judgment

#
minor

The coram/description inconsistently dates the impugned ruling, once as 'dated 31st October, 2015' and elsewhere as 31st October 2018

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kibos Sugar & Allied Industries Ltd & 2 others v Benson Ambuti Adega & 2 others; National Environment Management Authority & another (Interested Party) [2018] KECA 73 (KLR)", Case Analysis (2018). Civil Appeal (Application) No. 137 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/73/eng@2018-12-07

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