https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1121

Erdemann Property Ltd v Board of Management, Ngara Girls High School & 3 others (Civil Application E510 of 2025) [2026] KECA 1121 (KLR) (12 June 2026) (Ruling) Neutral citation: [2026] KECA 1121 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Application E510 of 2025 DK Musinga, M Ngugi & GV Odunga, JJA June 12, 2026 Between Erdemann Property Limited Applicant and Board of Management, Ngara Girls High School 1st Respondent Loise Ndovu Mwathe 2nd Respondent Attorney General 3rd Respondent Ministry of Education 4th Respondent (Being an application for an injunction pending appeal against the whole of the jjudgment of the Environment and Land Court at Nairobi (J.G. Kemei, J.) dated 18th July 2025 in ELC Constitutional Petition No. E066 of 2024) Ruling 1.In the application dated 13Th August 2025, the applicant seeks, in the main, that pending the hearing and determination of the applicant’s appeal, an injunctive order be issued suspending the coming into effect, operationalization, execution and/or enforcement of the judgment of the Environment and Land Court (ELC) at Nairobi (J.G. Kemei J) dated 18th July 2025 in Constitutional Petition No. E066 of 2024. 2.In the impugned decision, the ELC issued a declaration that the occupation and continued occupation by the applicant of the 1st respondent’s (Ngara Girls High School, hereafter ‘the School’ or ‘the 1st respondent’) property, L. R. No. 209/136/239/R, constitutes a violation of the School’s right to property guaranteed under Articles 27 (1) and 40 of the Constitution; a mandatory injunction directing the applicant to forthwith remove and demolish all the structures erected on the said property within a period of 60 days from the date of the judgment; a permanent injunction restraining the applicant by itself, its agents, servants or otherwise howsoever from entering upon or remaining upon the suit property or continuing occupation of and/or otherwise dealing with or interfering with the School’s access to use of and quiet possession of the suit property. 3.The ELC also found that the applicant had violated the School’s rights under various Articles of the Constitution, inter alia, Articles 10, 12, 27, 28, 40, 42, 47, 53, 69 and 70 of the Constitution as read with sections 4 and 23 of the Climate Change Act. It made an award in damages to the School of Kshs. 23,000,000 for trespass and violation of rights, with interest thereon at court rates until hand over of the suit property to the School. It also made an order for the restoration of the suit property to its original state within 60 days of the judgment. 4.Briefly, the background to the suit as it emerges from the impugned judgment is that the School had entered into a lease agreement with the applicant for a portion of the property for the purpose of temporary stocking of building materials during the construction of the applicant’s development known as River Estate Project on LR No. 209/22016 and for related construction activities during the construction period. The lease was for a period of three years, expiring on 10th June 2023. The School’s case before the ELC was that upon expiry of the lease, which was not renewed, the applicant continued to illegally occupy and trespass on the suit land while undertaking concrete processing, thus polluting the environment and disrupting learning activities in the School, thereby violating the rights of, among others, the children at the School. 5.In response to the School’s claim, the applicant argued that the School’s claim in trespass and environmental degradation through air and water pollution from the applicant’s activities could be resolved through other dispute resolution mechanisms rather than a constitutional petition; that it had been carrying out its operations on a different plot and had discovered that it did not occupy the School’s property, and it was therefore not a trespasser; and that its operations had been licensed, with mitigating safeguards, to curb possible negative impacts, which it had used to limit pollution. 6.Upon hearing the petition, the ELC granted the orders set out above, which aggrieved the applicant, leading to the lodging of a notice of appeal evincing its intention to appeal against the judgment, and the filing of the present application. 7.The application is expressed to be brought under Article 25(c) of the Constitution, sections 3, 3A and 3B of the Appellate Jurisdiction Act, and rule 5(2)(b) of this Court’s Rules. It is based on the grounds set out on its face and is supported by an affidavit sworn by Zeyun Yang, the Managing Director of the applicant, on 13th August 2025 in which he reiterates the grounds set out in the application. 8.The applicant contends that it has an arguable appeal raising, among other grounds, that the trial court erred in law and fact in finding that it had jurisdiction to hear and determine the petition despite the fact that the School’s primary grievance was the alleged contravention of the lease agreement between the parties, which, according to the applicant, is a matter for which an adequate and specific alternative remedy exists under section I52E of the Land Act through eviction proceedings, and not by way of constitutional relief; and that the allegations of environmental degradation caused by the applicant’s operations has recourse in challenging the licence issued to the applicant by the National Environmental Management Authority (NEMA) before the National Environmental Tribunal. 9.The applicant avers that should the orders sought in its application not be granted, it will be forcibly removed from the suit property, notwithstanding the cogency and arguability of its appeal; that the impugned judgment imposes rigid timelines of 60 days for hand over and restoration of the property and 90 days for payment of damages in default of restoration, thereby exposing the applicant to immediate and irreversible prejudice; that the judgment requires payment of a combined sum of Kshs. 23,000,000 in damages within set timelines; and that unless this Court grants a stay of execution pending the determination of its appeal, the orders will be executed forthwith, thereby irreversibly altering the status of the property, occasioning substantial financial loss, and rendering the subject matter of the appeal nugatory; and that the demolition and restoration works, once undertaken, cannot be undone. 10.It is the applicant’s contention, finally, that if the monetary award of Kshs. 23,000,000 is paid to the School, it would not be able to refund the amount should the applicant’s appeal succeed. The applicant asks the Court to take judicial notice of the severe funding crisis facing public schools in Kenya which makes it highly improbable that the School would be able to reimburse the said sums once disbursed. 11.The 1st and 2nd respondents opposed the application through a replying affidavit sworn by Ms. Catherine Muiruri on 30thOctober 2025. In urging the Court to dismiss the application, the 1st and 2nd respondents aver that the applicant has not made out a case to warrant the grant of the orders sought; that the applicant is still undertaking activities and operating the batching plant, which is still interfering with the School’s activities; that the applicant is in contempt of the orders issued by the trial court and has not approached this Court with clean hands as the actions that had been complained of at the trial court are still ongoing and disrupting School activities; that the continued operations by the applicant have occasioned great prejudice to the School and disrupted learning activities; that it is uncontroverted that the applicant had entered into a lease agreement with the School for the use of part of the School compound as a storage space; but that the applicant had converted the parcel for other usage, including the erection of a cement batching plant; that it had conceded in averments before the trial court that it had set up a batching plant; that the judgment sought to be stayed is a monetary decree and the applicant has not offered to deposit the amount in Court as security as a condition for the grant of stay. 12.Regarding the applicant’s assertions with respect to the property ownership, it is averred for the 1st and 2nd respondents that the questions of environmental pollution and disruption of learning activities still subsists, regardless of ownership of the property. The 1st and 2nd respondents ask the Court to dismiss the application, asserting that the contention that there is a severe funding crisis in public schools in Kenya is unfounded and not supported by any evidence; and that the applicant cannot purport to allege that the State cannot repay the decretal sum should the appeal succeed. 13.At the hearing of the application, the applicant was represented by learned counsel, Mr. Lusi; the 1st and 2nd respondents were represented by learned counsel, Mr. Ochieng Oginga; and Mr. Eredi, Chief State Counsel, was present holding brief for Mr. Kamau for the 3rd and 4th respondents. Mr. Lusi highlighted the applicant’s submissions dated 30th September 2025, while Mr. Oginga highlighted the 1st and 2nd respondents’ submissions dated 30th October 2025. Mr. Eredi did not file submissions for the 3rd and 4th respondents but indicated that the said respondents supported the position taken by the 1st and 2nd respondents on the application. 14.We have read and considered the application, the affidavits in support and the respective submissions of the parties, which we need not rehash. The principles governing an application under rule 5(2)(b) are well settled. An applicant must demonstrate, first, that it has an arguable appeal, that is, that the appeal is not frivolous; and secondly, that absent the orders sought, the appeal, if successful, would be rendered nugatory-see Stanley Kang’ethe Kinyanjui v Tony Ketter & 5 others [2013] KECA 378 (KLR). 15.In considering whether an applicant has an arguable appeal, the Court is not called upon to make definitive findings on the merits of the intended appeal; rather it is sufficient if the applicant demonstrates that it has even a single bona fide arguable ground, not one which must necessarily succeed, but one which ought to be argued. 16.Having considered the applicant’s intended grounds of appeal, we are satisfied that the applicant has satisfied the first principle on an application under rule 5(2)(b). It is averred that the applicant wishes to raise, among others, the issue of jurisdiction, namely, whether the trial court properly held that it had the jurisdiction to entertain the petition in light of other alternative modes of adjudication open to the 1st and 2nd respondent; and whether the trial court erred in finding that the applicant had trespassed on the suit property despite clear evidence before the court that the property referenced in the lease agreement between the parties is non- existent (sic) and did not belong to the School. These, in our view, are arguable grounds meriting ventilation on appeal. 17.An applicant is also required to satisfy the Court, on a 5(2)(b) application, that its appeal would be rendered nugatory if the orders sought are not issued. The applicant has argued that the orders of the trial court require, inter alia, demolition of structures erected on the suit property, the applicant's eviction therefrom, and the restoration of the property within 60 days from the date of the judgment. It further requires payment to the School of damages amounting to Kshs. 23,000,000. 18.The applicant argues, an argument that is not without merit, that should the orders of the trial court be executed before the applicant’s appeal is heard and determined, the subject matter of the dispute would be fundamentally altered. The demolition of the structures and restoration of the property would create a state of affairs that may not be capable of being reversed should the applicant’s appeal ultimately succeed. 19.The applicant has also argued, again with some justification, that should the sum of Kshs. 23,000,000 be paid to the School, it may not be easily recoverable, given the state of underfunding of public schools, such as the 1st respondent. The School dismisses this contention, arguing that there is no basis for contending that the State would be unable to refund the amount should the appeal succeed, and contending further that the applicant has not offered to deposit the decretal sum as security for the grant of orders of stay of execution. 20.Having considered the opposing arguments with respect to whether the applicant’s appeal would be rendered nugatory absent orders of stay, we are satisfied that, on the material before us, execution of the orders of the trial court, which require demolition of the applicant’s structures on the suit property, restoration thereof and payment of a not insignificant amount of Kshs. 23,000,000 to a public institution dependent on State funding would render the appeal nugatory. 21.We are alive, however, to the fact that the 1st respondent is a public school in which are school children whose rights to, inter alia, a clean environment and health may be impacted by the applicant’s activities on the suit property. Public interest demands protection of their rights, even as the Court seeks to strike a balance that ensures that the applicant’s appeal will not be rendered nugatory. In the circumstances, the orders that commend themselves to us, and which we hereby grant, are as follows:i.That an order be and is hereby issued staying execution of the judgment and decree of the Environment and Land Court dated 18th July 2025 in ELC Constitutional Petition No. E066 of 2024 pending the hearing and determination of the applicant’s intended appealii.The order of stay of execution shall be conditional upon the applicant immediately ceasing operation of the cement batching plant which entails blasting, noisy emissions and water pollution within the suit property;iii.The orders of stay in (i) above are further subject to the applicant providing a bank guarantee in the sum of Kshs. 23, 000,000 within forty-five (45) days from the date hereof;iv.The costs of the application shall abide the outcome of the appeal. DATED AND DELIVERED AT NAIROBI THIS 12TH DAY OF JUNE 2026.D. K. MUSINGA................................JUDGE OF APPEALMUMBI NGUGI................................JUDGE OF APPEALG. V. ODUNGA................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR.