https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1050

County Government of Nairobi v D Kenya Power and Lighting Company Plc & another (Civil Application E650 of 2025) [2026] KECA 1050 (KLR) (29 May 2026) (Ruling) Neutral citation: [2026] KECA 1050 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Application E650 of 2025 W Karanja, LM Njuguna & M Sila, JJA May 29, 2026 Between County Government of Nairobi Applicant and D Kenya Power and Lighting Company Plc 1st Respondent Nairobi City Water and Sewerage Company Limited 2nd Respondent (Being an application for stay of proceedings of the case Nairobi ELCEPPET No. E009 of 2025 pending the hearing and determination of an intended appeal against the ruling of the Environment and Land Court (A. Omollo, J.) dated 12th June 2025) Ruling 1.The application before us is that dated 12 November 2025 filed by the County Government of Nairobi (the applicant). The substantive order sought in the application is for stay of proceedings in Nairobi ELCEPPET/E009/2025, Kenya Power and Lighting Company PLC vs County Government of Nairobi and Nairobi City Water & Sewerage Company Limited, pending the hearing and determination of an intended appeal to this Court against a ruling of the said court. The said suit was commenced through a petition filed on 24 February 2025. 2.In the petition, the 1st respondent alleged that on 24 February 2025, the applicant dumped huge amounts of toxic, hazardous and untreated garbage and waste material, at the entrance of Stima Plaza, which is the 1st respondent’s headquarters. The 1st respondent further alleged that the applicant illegally impounded several of its vehicles without any justifiable reason. In the petition, the 1st respondent sought various orders arising out of this alleged action of the applicant. The applicant filed a preliminary objection to the effect that the Environment and Land Court (ELC) lacks jurisdiction to hear the suit in the first instance by dint of the provisions of Article 189 of the Constitution, as read with Sections 3, 5 and 30 of The Intergovernmental Relations Act, Cap 265; Section 41 (1) (b) of the National Rating Act; and Section 121 (2) of the Water Act. It was also claimed that the petition does not raise any constitutional issues. Inter alia, it was the position of the applicant that the dispute constituted an intergovernmental dispute between the National and County Governments which ought to be resolved through the mechanisms prescribed in The Intergovernmental Relations Act, before the jurisdiction of the ELC could be invoked. The preliminary objection was heard and dismissed vide a ruling delivered on 12th June 2025 with the ELC not being persuaded that the existence of alternative dispute resolution mechanisms automatically ousts the jurisdiction of the Environment and Land Court. 3.Aggrieved, the applicant, through a letter dated 12 June 2025, requested for certified copies of the proceedings, and lodged a notice of appeal on 13 June 2025. She has now filed this application seeking stay of proceedings pending the hearing and determination of the appeal against the said ruling. 4.Despite being served with the application, the respondents did not file any replying affidavit or grounds of opposition to oppose the motion. Neither did counsel for the respondents appear in Court on 2 March 2026, when the application was heard. At the hearing, counsel for the applicant principally relied on the written submissions dated 26 February 2026 which we have given due consideration. 5.This is an application brought pursuant to Rule 5 (2) (b) of the Court of Appeal Rules, 2022, which grants the Court power to order a stay of execution, an injunction, or a stay of any further proceedings, on such terms as the Court may think just. The principles upon which this Court considers an application under this rule are well settled. Firstly, the applicant needs to satisfy the Court that he/she has an arguable appeal, and secondly, the applicant needs to demonstrate that unless the order of stay is granted, the appeal will be rendered nugatory (See case of Stanley Kangethe Kinyanjui vs Tony Ketter & 5 others [2013] KECA 378 (KLR) ). 6.On the first principle, the issue raised by the applicant and which she wishes to canvass on appeal, touches on the jurisdiction of the Environment and Land Court vis-a-vis the various other alternative mechanisms of dispute resolution pointed out by the applicant in her preliminary objection. The applicant urged that these alternative dispute resolution mechanisms first need to be exhausted before the Environment and Land Court can assume jurisdiction. There is indeed authority in our jurisprudence that where other bodies are vested with jurisdiction, then the court ought to avoid jurisdiction, and allow those institutions to first deal with the dispute. In the case of Kibos Distillers Ltd & 4 others v Adega & 3 others (Civil Appeal 153 of 2019) [2020] KECA 875 (KLR) the Court of Appeal expressed as follows:“A party or litigant cannot be allowed to confer jurisdiction on a court or to oust jurisdiction of a competent organ through the art and craft of drafting of pleadings. Even if a court has original jurisdiction, the concept of original jurisdiction does not operate to oust the jurisdiction of other competent organs that have legislatively been mandated to hear and determine a dispute. Original jurisdiction is not an ouster clause that ousts the jurisdiction of other competent organs. Neither is original jurisdiction an inclusive clause that confers jurisdiction on a court or body to hear and determine all and sundry disputes. Original jurisdiction simply means the jurisdiction to hear specifically constitutional or legislatively delineated disputes of law and fact at first instance. To this end, I reiterate and affirm the dicta that in Speaker of the National Assembly v James Njenga Karume [1992] eKLR where it was stated that where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.” 7.Given the above position, we cannot say that the appeal is not arguable and the first test is met. 8.The second principle under Rule 5 (2)(b) is for the applicant to demonstrate that if stay is not granted, the appeal may be rendered nugatory. In the circumstances of this case, we are not persuaded that failure to grant a stay of proceedings, would render the appeal nugatory. This is because the applicant can as well appeal against the whole of the judgment of the ELC, if it will end up being aggrieved, which appeal can include an appeal against jurisdiction. The fact that the matter may proceed before the trial court does not in any way extinguish the applicant’s right to challenge jurisdiction on an appeal subsequent to the judgment. Moreover, if the intended appeal is heard in favour of the applicant, the applicant can as well be compensated by an award of costs regarding the case before the ELC. 9.We are persuaded by the decision of the Court of Appeal in the case of David Morton Silverstein vs Atsango Chesoni [2002] KECA 287 (KLR), where the Court expressed itself as follows:“On the second limb regarding whether the applicant's intended appeal would be rendered nugatory if it succeeded and we refused to grant a stay, we must point out that the appeal whose success would be rendered nugatory if we do not grant a stay is the appeal already filed in this Court, not the appeal pending in the High Court. On this aspect of the matter we think we must follow the decision of this Court in the case of KENYA COMMERCIAL BANK LTD VS BENJOH Amalgamated Ltd & Another , Civil Application No. NAI 50 of 2001 (29/2001 UR), (Unreported) . That was also an application to stay the proceedings in the High Court pending the hearing and determination of an intended appeal to this Court. In its ruling regarding whether the intended appeal's success would be rendered nugatory if a stay was not granted, the Court stated as follows:"... The onus of satisfying us on the second condition, that unless stay is granted, the intended appeal would be rendered nugatory, is also upon the applicant. In our view, it has unfortunately failed to discharge this onus. We remind ourselves that each case depends on its own facts and we find it difficult to be persuaded that the appeal on the facts of the present case would be rendered nugatory if stay is not granted. The appeal may be heard and, if successful, the proceedings in the superior court would be determined in accordance therewith. The hearing in the superior court might have been unnecessary for which appropriate costs can be ordered but the appeal will not have been worthless."These remarks aptly apply to the application before us. What will happen if we do not grant the stay sought is that the appeal in the High Court will be heard and may well be determined. But when the appeal already lodged is heard, determined and, if it succeeded, what would automatically follow is that the proceedings in the High Court would have been rendered unnecessary, but an appropriate order for costs can be made to remedy that. However, the appeal in this Court would not have been rendered nugatory.” 10.We are also alive to the principle that a grant of an order of stay of proceedings will only be made where exceptional circumstances exist. In Halsbury’s Law of England, 4th Edition. Vol. 37 page 330 and 332, it is expressed that:“The stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, and therefore the court’s general practice is that a stay of proceedings should not be imposed unless the proceeding beyond all reasonable doubt ought not to be allowed to continue. This is a power which, it has been emphasized, ought to be exercised sparingly, and only in exceptional cases. It will be exercised where the proceedings are shown to be frivolous, vexatious or harassing or to be manifestly groundless or in which there is clearly no cause of action in law or in equity. The applicant for a stay on this ground must show not merely that the plaintiff might not, or probably would not, succeed but that he could not possibly succeed on the basis of the pleading and the facts of the case”. 11.We adopt the elaboration espoused in the opinion above. Thus, an order of stay of proceedings is not one that is liberally granted.The reason for this is that such order is drastic, for it has the effect of restricting the right to be heard, and can also result in delay in the conclusion of a case. It will need a very special or clear case, for such an order to be made. We do not see any special circumstances in this case . The suit before the ELC is a petition, which we observe has already been directed to be heard by way of written submissions. In the normal course of events, it is expected that a judgment from that court will not take too long to be delivered. We are of the view that in light of the above, it is prudent to let that case proceed to its logical conclusion, and we see no prejudice to the applicant if that path is taken. 12.For the above reasons, we find no merit in this application and it is hereby dismissed but with no orders as to costs. DATED AND DELIVERED AT NAIROBI THIS 29TH DAY OF MAY, 2026W. KARANJA...................................JUDGE OF APPEALL. M. NJUGUNA...................................JUDGE OF APPEALMUNYAO SILA...................................JUDGE OF APPEALI certify that this is a true copy of the originalSignedDeputy Registrar