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 AppealDismissedCivil Appeal No. 292 of 2015

Tigoni Tresuers Limited & 2 others v J.S. Muriu & 2 others; National Environmental Management Authority (Interested Party) [2019] KECA 342 (KLR)

Court of Appeal of Kenya
27 September 2019
2,362 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal upheld an injunction halting a Tigoni development, warning courts rarely make final decisions like cancelling NEMA licences at an early stage.

What this practically means

#

Executive summary

#
The Tigoni Residents Association, through its Chairman, Secretary and Treasurer, sued Tigoni Tresuers Limited and the Namus over a proposed development of maisonettes on Plot 7660/72, Tigoni, alleging breach of head title conditions, unlawful change of user and defective environmental and county approvals. By a ruling of 14th November 2014, Mutungi, J. found a prima facie case and issued a conservatory order restraining the appellants from constructing multi-dwelling houses or maisonettes pending the hearing of the suit; the Judge also set aside an EIA study report prepared by Perman Consultants Limited and the NEMA EIA Licence issued on 15th July 2014. On appeal, the appellants attacked the cancellation of the NEMA licence without hearing NEMA, the absence of an undertaking in damages, and the Judge's alleged usurpation of the National Environment Tribunal's jurisdiction. The Court of Appeal (Githinji, Koome and ole Kantai, JJ.A.) noted that orders with final effect at an interlocutory stage would ordinarily not be permissible, but found the record incomplete - NEMA's review application and the resulting ruling of 29th May 2015 were absent, and NEMA had filed no pleadings and no notice of appeal. The Court found no error in the Judge's exercise of discretion on the Giella v Cassman Brown principles, dismissed the appeal with costs to the respondents, and left the substantive issues to the trial court.

Questions the Court framed

#

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

  1. 1.Whether the Judge exceeded his jurisdiction by setting aside the EIA study report and the NEMA Environmental Impact Assessment Licence at an interlocutory stage when NEMA was not a party
  2. 2.Whether the Judge was entitled, on the material availed, to find that a prima facie case had been made out on which an injunction could issue

Key legal issues

#
01

Whether an interlocutory injunction was properly granted on the Giella v Cassman Brown principles

Holding

Yes - the trial Judge properly applied the principles and correctly found a prima facie case; the appellate court could discern no error in the exercise of discretion.

Reasoning

The Judge considered the well-known principles in Giella v Cassman Brown, examined whether the appellants could breach conditions in the head title and the Association's Constitution, considered the validity of consents from Limuru Sub-County, and found a prima facie case. The Court of Appeal, sitting as a first appellate court on discretion, found no misdirection warranting interference.

p. 3
02

Whether the High Court could set aside the EIA report and NEMA licence at interlocutory stage

Holding

The Court observed that such orders would ordinarily not be permissible, but declined to determine the point definitively because of gaps in the record, and the Interested Party's case was left to await trial.

Reasoning

The Court noted that the order setting aside the EIA report and NEMA licence had the effect of finally determining issues at an interlocutory stage, which would ordinarily not be permissible. However, the record was incomplete - a review application and ruling of 29th May 2015 were not before the Court - and NEMA had not filed pleadings or a notice of appeal, so the point was left undecided.

p. 3
03

The Interested Party's (NEMA's) standing on appeal absent pleadings or a notice of appeal

Holding

As there was no notice of appeal against the ruling of 29th May 2015, NEMA's case had to rest and await the hearing of the main suit at the High Court.

Reasoning

NEMA filed no pleading or affidavit; only written submissions were on record. Neither its review application nor the ruling of 29th May 2015 was on the record, and no notice of appeal was lodged against that ruling. Consequently the Court could not entertain its complaints, and its position was preserved for the trial.

p. 3

Legal principles established

#
  • Orders whose effect would finally determine issues in a suit are ordinarily not permissible at an interlocutory stage.
  • Parties to an appeal must avail all pleadings and materials necessary for the determination of the appeal as set out in the Court of Appeal Rules.

Court orders

#
  1. 1.Appeal dismissed
  2. 2.Costs of the appeal awarded to the respondents

The bench

#

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

majority
Martha Karambu Koome
M.K. KoomeJA
Currently serving
majority
majority
On appeal from
High Court of Kenya at Nairobi (Environment and Land Court)
HC. ELC. No. 964 of 2014
Jurisdiction invoked
First appellate jurisdiction over the High Court under the Court of Appeal's statutory appellate powers (appeal against ruling and order in HC. ELC. No. 964 of 2014)

Relief refused

#

Appeal allowing reversal of the High Court ruling

The Court found no error in the exercise of the trial Judge's discretion to grant the injunction

p. 3

Costs

Dismissed with costs to the respondents.

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.

We have considered the appeal and the orders made by the Judge and cannot find any error in the way the Judge exercised his mind and discretion to issue an injunction on the material placed before him at interlocutory stage.
p. 3Appellate non-interference with exercise of discretion at interlocutory stage
Issuing such orders whose effect would appear to finally determine issues at an interlocutory stage of a suit would ordinarily not be permissible.
p. 3Limits on interlocutory orders with final effect
in passing, the parties to an appeal should avail all pleadings and materials necessary for determination of appeals as set out in Court of Appeal Rules.
p. 3Duty to compile a complete record on appeal
We cannot find any merit in this appeal which we dismiss with costs to the respondents.
p. 3Final orders - dismissal with costs
there was no notice of appeal against the said ruling made on 29th May, 2015 and the case for the Interested Party must now rest to await hearing of the suit pending at the High Court.
p. 3Interested party without notice of appeal cannot pursue complaint on appeal

Issues in the judgment

#
minor

The record was incomplete: a review application by NEMA and a ruling of 29th May 2015, a stay application (Civil Application No. 318 of 2014), and NEMA's application to be enjoined were referred to but not on the record, limiting the Court's ability to determine all issues.

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Tigoni Tresuers Limited & 2 others v J.S. Muriu & 2 others; National Environmental Management Authority (Interested Party) [2019] KECA 342 (KLR)", Case Analysis (2019). Civil Appeal No. 292 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/342/eng@2019-09-27

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