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Court of AppealPartially AllowedCivil Appeal (Application) E739 of 2024

Seii & 10 others v Nairobi City County Government & 8 others

Court of Appeal
20 December 2024
3,176 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal has halted a Kilimani development until an environmental appeal is heard, ruling that irreversible environmental harm cannot be fixed with money.

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 (Nyamweya, Muchelule and Odunga, JJA) on an application under Rule 5(2)(b) of the Court of Appeal Rules, 2022 by Jerotich Seii and 10 others seeking a stay of execution of a ruling of the Environment and Land Court (A. Omollo J) delivered on 16th September 2024 in ELC Petition No E019 of 2024. The ELC had declined to halt a proposed residential development by Blissful Residence Investment Limited on Nairobi/Block 17/392, Kilimani, but granted a conservatory order permitting construction only up to four floors pending the Petition's determination. The Applicants, owners and residents along Ndemi Road, contended the ELC granted unpleaded orders and that four-floor construction lacked approvals and would harm the environment irreversibly. The 9th Respondent opposed, asserting it held all approvals, that environmental harm claims were speculative, and that it would suffer financial losses if construction were stayed. Applying the settled twin principles from Stanley Kang'ethe Kinyanjui v Tony Ketter, the Court found the intended appeal arguable on the legality of the approvals and the unpleaded orders, and held that since environmental effects are irreversible and cannot be compensated by damages, the appeal would be rendered nugatory if construction proceeded. The Court allowed the application, granting a conservatory order halting all development and construction on the suit property by the 9th Respondent or any other person pending the appeal, with costs of the application to abide the appeal's outcome.

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
  2. 2.Whether, unless a stay of execution is granted, the intended appeal would be rendered nugatory

Key legal issues

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01

Arguability of the intended appeal

Holding

The appeal was arguable because it raised issues of legality of the development for want of approvals and whether the ELC granted unpleaded orders.

Reasoning

The Court noted the Memorandum of Appeal questioned the legality of the developments allowed by the ELC for want of requisite approvals and their environmental effect, and alleged the ELC granted orders not pleaded. Since an arguable appeal need not necessarily succeed but only deserve the court's attention, the appeal was held not frivolous and indeed arguable.

p. 6
02

Whether the appeal would be rendered nugatory absent a stay

Holding

Yes - irreversible environmental harm cannot be compensated by damages, so if construction proceeded and the appeal succeeded, the appeal would be nugatory.

Reasoning

The Applicants maintained the proposed developments would adversely affect the environment; the 9th Respondent contended any harm was compensable in damages. The Court held environmental effects are irreversible and not adequately compensable by damages, so allowing construction before the appeal would render a successful appeal nugatory.

p. 6

Legal principles established

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  • An applicant for stay under Rule 5(2)(b) must satisfy the twin requirements of an arguable appeal and that the appeal would be rendered nugatory absent a stay.
  • Environmental effects that are irreversible cannot be adequately compensated by damages, and this may render a successful appeal nugatory.
  • The object of the Rule 5(2)(b) discretion is to preserve the subject matter of the appeal.

Court orders

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  1. 1.Conservatory order stopping, halting and discontinuing any development and construction activities on the property known as Nairobi/Block 17/392 - Kilimani Area, Nairobi by the 9th Respondent or any other person, pending the hearing and determination of the appeal
  2. 2.Costs of the application to abide by the outcome of the appeal

The bench

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

majority
majority
majority
On appeal from
Environment and Land Court at Nairobi
ELC Petition No E019 of 2024
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, 2022

Relief refused

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Stay of proceedings in ELC Petition No E019 of 2024 pending the appeal

The Court granted only prayer 4 of the application (conservatory order); the stay of proceedings prayer was not granted

p. 6

Costs

The costs of the application shall abide by the outcome of the appeal.

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.

An applicant has to satisfy two requirements. Firstly, that he or she has an arguable appeal. Secondly, unless an order of stay is granted, the intended appeal would be rendered nugatory.
p. 5Rule 5(2)(b) twin principles for stay
We are of the view that since effects on the environment are irreversible, they cannot be adequately compensated by damages.
Irreversible environmental harm and the nugatory test
Consequently, we grant prayer 4 of the application dated 27th September 2024, with the result that we hereby grant a conservatory order stopping, halting and discontinuing any development and construction activities on the property known as Nairobi/ Block 17/392- Kilimani Area, Nairobi by the 9th Respondent or any other person, pending the hearing and determination of the appeal herein.
p. 6Final orders - conservatory order granted
The costs of the application shall abide by the outcome of the appeal.
p. 6Costs order

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, "Seii & 10 others v Nairobi City County Government & 8 others", Case Analysis (2024). Civil Appeal (Application) E739 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1929/eng@2024-12-20

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