China Road & Bridge Corporation - Kenya v Wachira & 5 others (Civil Appeal (Application) E723 of 2024) [2025] KECA 628 (KLR)
The bottom line
#The Court of Appeal refused to halt orders requiring China Road & Bridge Corporation to shut down and rehabilitate its Kajiado quarry while its appeal is heard.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant's intended appeal is arguable and not frivolous (first limb of the Rule 5(2)(b) test)
- 2.Whether the intended appeal, were it to succeed, would be rendered nugatory if stay is not granted (second limb)
- 3.Whether it is in the public interest that an order of stay be granted (third limb)
Key legal issues
#Whether the intended appeal was arguable
The appeal was eminently arguable: the grounds questioning whether the learned Judge peremptorily concluded there was a rights violation and whether she misapprehended scientific evidence presented serious legal issues warranting full consideration.
The Court applied the settled definition that an arguable appeal need not succeed but must not be frivolous, citing Stanley Kang'ethe Kinyanjui v Tony Ketter. It refrained from definitive findings of fact or law so as not to embarrass the hearing of the main appeal. The draft grounds on the analysis of the constitutional violation and the scientific evidence were sufficient to satisfy the first limb of the Rule 5(2)(b) test.
Whether the appeal would be rendered nugatory if stay were refused
The nugatory limb failed. The applicant produced no evidence that its Western Bypass contract was tied to the quarry, that its EIA licence contemplated such use, or that alternative material sources were unavailable.
The Court held that claims of incalculable cost escalation on a national project required evidentiary support, not speculation. The supporting affidavit contained no deposed fact showing that obtaining alternative construction materials would be insuperably difficult or impossible. Without such evidence, the alleged harm to the applicant's contract was insufficient to render the appeal nugatory.
Whether public interest favoured the grant of stay
Public interest tilted in favour of refusing the stay. The litigation concerned the constitutionally guaranteed right to a clean and healthy environment, already judicially found to have been violated, and the precautionary principle favoured preventative action.
Applying the third Munya principle, the Court weighed the applicant's claims of national infrastructure interest against the demonstrated environmental rights of the Kerarapon residents. Given the state of the evidence, the precautionary principle required mitigation of potential quarrying risks even where the full extent of harm was uncertain. The claimed taxpayer burden of project delay did not outweigh the constitutional environmental protection.
Legal principles established
#- An arguable appeal under Rule 5(2)(b) is not one that must succeed, but one that presents serious issues warranting full argument; both limbs (arguability and nugatory-ness) must be demonstrated.
- A stay applicant asserting nugatory-ness from economic or project-implementation consequences must place actual evidence before the Court linking those consequences to execution of the order; bare assertion suffices not.
- In environmental matters, the precautionary principle justifies refusing a stay of orders protecting the right to a clean and healthy environment even where there is scientific uncertainty about the extent of harm.
Court orders
#- 1.Dismissal of the applicant's notice of motion dated 20th December, 2024 seeking stay of execution of the ELC judgment
- 2.Costs of the application awarded to the 1st – 4th respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Kajiado
- Kajiado ELC Petition No. 2 of 2020
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2022 (discretion to order stay of execution pending appeal)
Relief refused
#Stay of execution of the judgment of the Environment and Land Court at Kajiado (including the order of mandamus to decommission and rehabilitate the quarrying site) pending the intended appeal
The applicant satisfied the arguability limb but failed to demonstrate that the appeal would be rendered nugatory absent a stay, having placed no evidence that its Western Bypass contract was pegged to the quarry or that its EIA licence covered such use; public interest also favoured refusal.
Costs
The application dated 20th December, 2024 was dismissed with costs to the 1st – 4th 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 said enough to demonstrate that the application dated 20th December, 2024 has no merit and we hereby dismiss it with costs to the 1st – 4th respondents.
These two limbs must both be demonstrated and it would not be enough that only one is demonstrated.
An arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully before the court; one which is not frivolous.
the precautionary principle advocates for taking preventative action to avoid potential harm to the environment, even when there is scientific uncertainty about the nature or extent of the harm.
Issues in the judgment
#The application's case/registration number before the Court of Appeal is not stated anywhere in the judgment; only the application date (20th December, 2024) is given.
The individual names of the 2nd to 6th respondents are not given in the judgment; they are identified only through the deponents and collective descriptions.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "China Road & Bridge Corporation - Kenya v Wachira & 5 others (Civil Appeal (Application) E723 of 2024) [2025] KECA 628 (KLR)", Case Analysis (2025). Civil Application No. E527 of 2024 (Nairobi) (as implied by application dated 20th December, 2024; number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/628/eng@2025-04-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.