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Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Application No. E321 of 2024 (as stated on the application dated 18th June 2024)· [2024] KECA 1507 (KLR)

Kenya Pipeline Company Limited v Kurugu Food Complex

Court of Appeal
25 October 2024
2,197 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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The Court of Appeal paused a Kshs. 49.9 million judgment against Kenya Pipeline until its appeal is decided, citing public interest and irreparable costs.

What this practically means

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Executive summary

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Kenya Pipeline Company Limited applied to the Court of Appeal under rule 5(2)(b) of the Court of Appeal Rules for a stay of execution of the judgment and decree of the Environment and Land Court (M.D. Mwangi J) delivered on 23rd May 2024 in ELC No. 589 of 2010, pending its appeal. The trial court had entered judgment for Kurugu Food Complex, declaring it the absolute and indefeasible owner of the suit premises and awarding Kshs. 49,934,160 in mesne profits, a mandatory injunction to re-route the pipelines within 180 days, a permanent injunction, and costs. The applicant contended the trial court decided an unpleaded issue concerning Pipe Line No. 2 in breach of its right to a fair hearing under Article 50, and failed to consider public interest given that the pipeline serves Kenya and neighbouring countries. The respondent opposed, arguing the application was premature, that execution poses no substantial loss, and that it could refund the decretal sum. Applying the twin principles - arguability and nugatory aspect - the Court found the intended appeal raised non-frivolous grounds on the fair-hearing and public-interest questions, and that the financial outlay of mesne profits and pipeline re-routing, plus the vast population served, would render a successful appeal an academic exercise. The Court allowed the application and stayed execution of the judgment pending the appeal, with costs of the application abiding the outcome of the appeal. Judgment delivered at Nairobi on 25th October 2024 by S. Gatembu Kairu, L. Achode and A. O. Muchelule, JJA.

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The intended appeal was arguable, raising non-frivolous grounds including whether the trial court decided an unpleaded issue (Pipe Line No. 2) thereby denying the applicant a fair hearing, and whether public interest was considered

Reasoning

The Court examined the memorandum of appeal and found several bona fide points, principally that the trial judge made findings on Pipe Line No. 2 which had not been pleaded, raising a fair-hearing concern, and that public interest in the pipeline was arguably not weighed. A single arguable issue suffices; the applicant need not establish a multiplicity of grounds. The Court declined to elaborate further to avoid embarrassing the bench seized of the appeal.

p. 4
02

Whether the appeal will be rendered nugatory if stay is not granted

Holding

Yes - the enormous financial outlay of paying mesne profits of Kshs. 49,934,160 and removing and reinstalling the pipeline, and the vast populace served by the pipeline, would render a successful appeal an academic exercise

Reasoning

Applying the Kinyanjui v Ketter test, the Court asked whether what is to be stayed is reversible or compensable by damages. Re-routing the pipeline and paying the decretal sum would involve massive expenditure and business interruption across Kenya and neighbouring countries that could not practically be reversed or compensated, meaning success on appeal would be hollow. Public interest, the applicant being a public body, weighed in its favour.

p. 4

Legal principles established

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  • An applicant under rule 5(2)(b) must satisfy the twin principles of an arguable appeal and that the appeal will be rendered nugatory if the relief is not granted
  • An arguable appeal need not be one that will succeed, but one that ought to be argued fully; a single arguable issue suffices
  • In assessing nugatory aspect, the court asks whether what is sought to be stayed is reversible, or if not reversible, whether damages will reasonably compensate the aggrieved party, each case depending on its own facts
  • The discretion under rule 5(2)(b) to grant a stay or injunction is wide, unfettered provided it is just, and original

Court orders

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  1. 1.An order of stay of execution of the judgment of the trial court delivered on 23rd May 2024 in Nairobi ELC Case No. 589 of 2010 pending the hearing and determination of the applicant's appeal
  2. 2.Costs of the application to abide the outcome of the appeal
On appeal from
Environment and Land Court, Nairobi
ELC No. 589 of 2010
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

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, "Kenya Pipeline Company Limited v Kurugu Food Complex", Case Analysis (2024). Civil Application No. E321 of 2024 (as stated on the application dated 18th June 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1507/eng@2024-10-25

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