Case ID:168609

B Concept Limited t/a B-Club Nairobi v Kilimani Project Foundation Being Sued on Behalf of Kilimani Residents Association & 8 others [2020] eKLR

Case Metadata

Case Number:

Civil Application Nai 182 of 2020

Parties:

B Concept Limited t/a B-Club Nairobi v Kilimani Project Foundation Being Sued on Behalf of Kilimani Residents Association, Kiza Restaurant and Lounge, Space Lounge and Grill, Explorers Tavern, Director of Environment, Nairobi City County Government, National Environmental Management Authority, Chairperson Nairobi City County Alcoholic Drinks Control and Licencing Board & Nairobi County Government

Date Delivered:

18 Dec 2020

Case Class:

Civil

Court:

Court of Appeal at Nairobi

Case Action:

Ruling

Judge(s):

Hannah Magondi Okwengu, Agnes Kalekye Murgor, Stephen Gatembu Kairu

Citation:

B Concept Limited t/a B-Club Nairobi v Kilimani Project Foundation Being Sued on Behalf of Kilimani Residents Association & 8 others [2020] eKLR

Case History:

(Being an application for stay of execution pending the lodging, hearing and determination of

an intended appeal from the judgment of the Environment and Land Court at Nairobi

(Komingoi, J.) dated 17th October 2019

in Petition No. 5 of 2019)

Court Division:

Civil

County:

Nairobi

History Docket No:

Petition No. 5 of 2019)

History Judges:

Loice Chepkemoi Komingoi

History County:

Nairobi

Case Outcome:

Motion dismissed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

IN THE COURT OF APPEAL

AT NAIROBI

(CORAM: OKWENGU, GATEMBU & MURGOR, JJ,A)

CIVIL APPLICATION NO. NAI. 182 OF 2020

BETWEEN

B CONCEPT LIMITED T/A

B-CLUB NAIROBI....................................................................................APPLICANT

AND

KILIMANI PROJECT FOUNDATION Being sued on behalf of KILIMANI

RESIDENTS ASSOCIATION.......................................................1

ST

RESPONDENT

KIZA RESTAURANT AND LOUNGE.......................................2

ND

RESPONDENT

SPACE LOUNGE AND GRILL...................................................3

RD

RESPONDENT

EXPLORERS TAVERN…............................................................4

TH

RESPONDENT

DIRECTOR OF ENVIRONMENT...............................................5

TH

RESPONDENT

NAIROBI CITY COUNTY GOVERNMENT..............................6

TH

RESPONDENT

NATIONAL ENVIRONMENTAL

MANAGEMENT AUTHORITY...................................................7

TH

RESPONDENT

CHAIRPERSON NAIROBI CITY COUNTY ALCOHOLIC DRINKS CONTROL

AND LICENCING BOARD …......................................................8

TH

RESPONDENT

NAIROBI COUNTY GOVERNMENT.........................................9

TH

RESPONDENT

(Being an application for stay of execution pending the lodging, hearing and determination of

an intended appeal from the judgment of the Environment and Land Court at Nairobi

(Komingoi, J.) dated 17

th

October 2019

in

Petition No. 5 of 2019)

****************

RULING OF THE COURT

The Notice of Motion dated 30

th

June 2020 arises out of the judgment of the Environment and Land Court

(Komingoi, J.)

delivered on 17

th

October 2019 wherein the court issued orders to compel

the 5

th

respondent, the Director

of Environment, Nairobi City County Government, the 6

th

respondent, the National Environmental Management Authority

and

the 8

th

respondent, the Nairobi County Government

to enforce closure notices against

the applicant, B Concept Limited T/A B-Club Nairobi,

among others for having contravened the Environmental Management and Co-ordination Act (Noise and Excessive Vibration Pollution) (Control) Regulation 2009 and a further order compelling them to revoke all liquor licences issued to the applicant amongst others.

The motion is brought under

Articles 159

and

164 (3)

of the

Constitution

,

section 3A

and

3B

of the

Appellate Jurisdiction Act

and

rules 1 (2), 5(2) (b)

of the

Court of Appeal rules

where the applicant seeks orders of stay of execution of the judgment pending the hearing and determination of the appeal. The motion was grounded on a host of complaints against the learned judge’s decision including, but not limited to complaints that the learned judge wrongly applied the noise level decibel readings recorded at the 3

rd

respondent, Space Lounge and Grill’s premises in the applicant’s case, and that further, the court also relied on measurements taken in a manner that was contrary to

regulation 6

of the

Environment Management & Coordination

(Noise and Excessive Vibration Pollution Regulations, 2009)

in that they were not taken by the relevant lead agency or by a person duly authorized by the National Management Authority; that furthermore, the court should not have disregarded the applicant’s Noise Survey Report. Another complaint was that the learned judge failed to take into account the applicant’s evidence that the 5

th

, 6

th

and 8

th

respondents had certified that it had complied with all applicable environment laws both at the National and County Government level.

The applicant deponed that it risked losing its investment of over Kshs. 20,000,000, and that a closure would not enable it meet its financial obligations to its employees, creditors and suppliers who are reliant on its continued operations. That if the stay of execution was not granted and the appeal were to succeed, it would be rendered nugatory as the applicant would go out of business.

The application was supported by the affidavit of

Barry Ndengeyingoma

, the applicant’s Managing Director, which reiterated the contents of the grounds of the motion save to add that the debts had accrued partly due to the business closure on account of the Covid- 19 pandemic to comply with the government protection measures.

The applicant also filed written submissions reiterating the averments in the grounds and the supporting affidavit. No affidavit in reply or submissions were filed by any of the respondents.

In so far as applications filed under

rule 5 (2) (b)

of this Court’s rules are concerned, the threshold to be satisfied, as exemplified in the case of

Republic vs Kenya Anti-Corruption Commission & 2 others

[2009] eKLR,

is that;

“The Court exercises unfettered discretion which must be exercised judicially. The applicant needs to satisfy the Court that first, that the appeal or intended appeal is not frivolous, that is to say that it is an arguable appeal. Second, the Court must also be persuaded that were it to dismiss the application for stay and later the appeal or intended appeal succeeds the results or success could be rendered nugatory.”

As to whether the appeal is arguable, the applicant’s main grievance is that the learned judge wrongly applied the sound level measurements taken in a third party’s premises to the applicant. Whether or not the measurements taken were correctly applied, is a matter that we consider to be arguable issue.

On whether the appeal would be rendered nugatory in the event it were to succeed, the applicant averred that the onset of the Covid -19 pandemic led to closure of its operations, which gave rise to some of the significant financial challenges it is facing. At this juncture, we are not persuaded that the appeal would be rendered nugatory.

In sum the motion dated 30

th

June 2020 is for dismissal, and is accordingly dismissed. We make no orders as to costs

It is so ordered

Dated and delivered at Nairobi this 18

th

day of December, 2020.

HANNAH OKWENGU

......................................

JUDGE OF APPEAL

S. GATEMBU KAIRU, FCIArb

..................................

JUDGE OF APPEAL

A. K. MURGOR

...................................

JUDGE OF APPEAL

I certify that this is a true

copy of the original.

Signed

DEPUTY REGISTRAR