https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1046

Kenya Pipeline Corporation Limited v Kimeu & 3074 Others & another (Civil Application E532 of 2025) [2026] KECA 1046 (KLR) (29 May 2026) (Ruling) Neutral citation: [2026] KECA 1046 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Application E532 of 2025 W Karanja, F Tuiyott & WK Korir, JJA May 29, 2026 Between Kenya Pipeline Corporation Limited Applicant and Muindi Kimeu & 3074 Others 1st Respondent National Environment Management Authority 2nd Respondent (Being an application for stay of execution pending the hearing and determination of an intended appeal against the Judgment and Decree of the Environment and Land Court at Makueni (Christine Ochieng, Theresa Murigi & Annet Nyukuri JJ.) dated the 11th July, 2025 in ELC Petition No. 9 of 2019) Ruling 1.The notice of motion before us, dated 3rd September 2025, is for stay of multiple orders granted in the judgment of the Environment and Land Court (ELC) sitting at Makueni delivered in Petition No. 9 of 2019 (consolidated with Petitions Nos 8 and 12 of 2019) on 11th July 2025. 2.The orders are in favour of 3075 respondents, residents of Thange River Basin in Makueni County, who complained of environment degradation caused by a leakage of petroleum products from a pipeline owned and managed by Kenya Pipeline Company Ltd (KPC or the applicant). In a nutshell, the judgment ordered KPC to pay a sum of Kshs 3,018,831,676/- comprising of damages of Kshs 2,118,831,676/- and payment of a default sum of Ksh 900,000,000/- upon failure to carry out an environment restoration ordered by the ELC within 120 days of the judgment. KPC is aggrieved by the entire judgment and has filed Civil Appeal No. E905 of 2025. 3.In an affidavit of Gloria Khafafa sworn on 3rd September 2025, KPC asserts that the impugned decision reveals systematic errors of the application of established legal principles governing the burden of proof, apportionment of liability, constitutional interpretation, and quantification of damages in environmental and constitutional litigation. Regarding the restoration order, a constitutional interdict, KPC contends that the decision disregarded substantial evidence of successful bioremediation efforts undertaken by it. 4.KPC is apprehensive of the impossibility of recovering the colossal sum should payment be made prior to the determination of the appeal. We are told that it would entail recovery from 3,075 individuals living in twenty- seven villages spanning forty-two kilometers of the Thange River Basin and whose financial capacity to repay is doubted. 5.KPC asserts that: it operates infrastructure of critical national security and economic importance, encompassing transportation of petroleum products essential to Kenya’s energy security and economic stability ; its financial resources emanate exclusively from the consolidated fund and subject to rigorous parliamentary oversight through annual budgetary allocation processes governed by the Public Finance Management Act, 2012; immediate disbursement of over Kshs 3 billion would necessitate emergency supplementary budgetary provisions; and the finance strain imposed by immediate payment would severely compromise its operational capacity. 6.The response by the 3,075 respondents is lengthy. We shall abridge it. In a replying affidavit sworn on 13th September, 2025, Muindi Kimeu, one of the respondents, asserts that: according to Panafcon ESEIA Report of April 2016 and a NEMA Detailed Incident Report, the oil spill seriously affected an area of 4km radius of the Thange River Basin, although spilled products were traced as far as 42km from the leak point to the Athi River, impacting 27 villages; the ground water contaminated plume, assessed at 2.5km long (dilute plume) and 1km (dense plume) and 10m deep, lay directly in the pathway of farms, wells, and boreholes upon which the community depended for livelihood; more than 95% of the basin's residents relied on the Thange River for domestic use, watering animals, and crops, which underscored the high vulnerability of the population; records from local chiefs indicated that the total number of affected persons exceeded 10,000; and despite the KPC’s claims of repair, the environment remained unrestored after ten years due to an underground oil storage pool situated between the spill spot and the St. Peter’s Secondary School borehole. 7.The 3075 respondents assert that KPC has failed to establish the twin principles for grant of stay of execution arguing that the guiding principles for granting stay of environmental decrees are protection against further environmental injury/exposure, protection/prevention of further injury to the victims and protection of public interest. The damaged environment was far from remediated or restored because KPC decommissioned the remediation company, Enviroserv, who vacated the site in 2018 despite opposition from the Water Resources Management Authority (WRMA). It is deposed that: a total ban on the use of water from the Thange River and shallow wells for domestic use, irrigation, and livestock remained in force for residents within the epicentres, as the pollution still persisted; many victims, lacking the financial means to purchase clean water, were forced to continue using the banned water, thereby endangering their health; the use of polluted water caused serious mental and psychological torture, stress, and inconvenience, with residents associating their health problems and fatalities with the contaminated environment; and the environmental pollution continued to claim lives, with over 100 respondents dying between the filing of the petition and the date of judgment. In support of this last claim, Muindi cites the ESEIA Report regarding the toxic effects of toluene, linked to asthma, cardiac arrhythmias, and liver damage, and benzene, which causes bone marrow depression, reduced immunity, and is carcinogenic. Finally, to corroborate that the polluted environment was the proximate cause of these deaths, he annexed 25 sample copies of death certificates of deceased respondents, which listed causes such as cancer, kidney failure, and liver failure. 8.Muindi deposed that between December 2024 and June 2025, the Thange Community engaged environmental experts to advise on the current status of the polluted environment Dr. Joseph Kiragu, a NEMA-registered Lead Expert opined that high volumes of hydrocarbons had percolated into the underground aquifers, specifically within the epicentre and at the St. Peters Thange Secondary school borehole. Regarding human health, the community engaged Dr. Ouma Anyul Gordon, an Occupational Health Physician, whose April 2025 report on a representative sample of residents found significant health impacts on liver, kidney, and hematological function resulting from the ingestion and use of contaminated water and food. Furthermore, a report of June 2025 prepared by Dr. Peter Kioko, a lead livestock expert, revealed that livestock re-introduced after the applicant decommissioned remediation suffered from ill health, mortality, stillbirths, and malformed offspring due to the polluted environment. Ultimately, it was asserted that the collective findings of these three scientific and expert reports demonstrated that the environment remained polluted, continuing to adversely affect the lives, crops, and livestock of the residents. 9.The respondents also refer to an investigation of 27th May 2025 by the Senate Committee on Energy confirming the ongoing oil water contamination leading to a directive to NEMA to convene a multi- agency committee to assess the long-term impact. Consequently, on 3rd June 2025, NEMA issued a Restoration Order requiring the applicant to comply with nine specific mandates within one month. Furthermore, that the superior court below, in its judgment, found that the applicant had failed to prevent the oil spill and had also failed to mitigate the damage arising from it between 2015 and 2023. 10.At some length, Muindi urged the strength of their case at trial and the correctness of the impugned decision. As this is not a full-blown appeal, we need not rehash them as we are at this interlocutory stage invited to gauge the strength of the appeal on the low threshold of what amounts to an arguable appeal. 11.On the second limb, the respondents contend that: KPC was insured against environmental risk by CIC General Insurance Ltd, which would shoulder the major part of the claim as evidenced by specific discharge and release vouchers, a fact KPC had not disclosed; the claim that KPC derived its resources exclusively from the consolidated fund was refuted, describing it as a financially viable and stable limited liability company with 2024 revenues of Kshs 35,369,329,508 and profits of Kshs 5,827,141,934 for the year 2023 and Kshs 6,867,249,974 for 2024, while noting that it planned to raise between 100 to 140 billion through an upcoming public share offer; and rejected the KPC's characterization of the respondents as impecunious and amorphous persons without a fixed abode, stating instead that their present economic hardship was a direct result of the applicant's pollution. Muindi further argued that KPC should have held cash reserves for this outcome, as it had done in a previous 3-billion-shilling dispute, and pointed out that KPC failed to disclose the National Environment Restoration Fund under Section 25 of EMCA as a potential intervention for environmental degradation. Finally, it was contended that KPC miserably failed to meet the principles for a stay of execution because the environment continues to be polluted, the victims continue to suffer and the prejudice of public interest remains ongoing and the application should be dismissed with costs. 12.Regarding the condition of the Thange Basin, KPC responded that it had invested heavily in remediation since May 2015, under NEMA’s supervision, which achieved measurable progress in soil recovery, water quality improvement, and community support. Citing an SGS report dated 23rd February 2021, KPC noted that analysis of both soil and water samples (surface and ground-water) indicated that the hydrocarbon compounds were below activation levels, did not require further bioremediation intervention, and contamination was below the CCME standards for agricultural soils and thus did not raise environmental concerns. KPC argued that natural attenuation was the recommended course of action to avoid risk of re-contamination, and it had faithfully monitored hydrocarbon levels, reports finding them within safe parameters as late as 18th June 2025. It was further emphasized that pipeline 1 was permanently decommissioned, eliminating future risks of leakage and that the Senate Committee’s findings of pollution were without objective scientific basis as they were not based on environmental or human health assessments. Finally, it was contended that the 3rd June 2025 Restoration Order was an unfounded replication of previous orders already complied with and was currently a live issue under appeal before the National Environment Tribunal. 13.At plenary hearing, learned senior counsel Mr. Nyaoga, learned counsel Mr. Imende and learned counsel Ms. Muigai jointly represented KPC. Learned counsel Mr. Musembi appeared for the 3075 respondents. There was no appearance for the 3076th respondent, NEMA. We have considered the submissions filed by the parties as augmented by highlights by counsel. 14.The principles for grant of stay are well settled. First, the appeal or intended appeal must be arguable, not frivolous. Second, unless a stay is granted, the appeal or intended appeal, if successful will be rendered nugatory. See for example Trust Bank Limited and Another v. Investech Bank Limited and 3 Others [2000] eKLR. As there is contestation as to the impact a stay would have on the environment, there is a public interest element that must take center stage. See Munya v Kithinji & 2 others (Application 5 of 2014) [2014] KESC 30 (KLR). Environment degradation could have more than transient consequences. It could impact the health and livelihoods of the respondents. It may affect the social-economic well- being of the occupants of Thange Basin. 15.The threshold of arguability is low. An arguable point is simply one that is serious enough to deserve further consideration by the bench that will hear the applicant. Even a single arguable ground suffices. Although counsel for the 3075 respondents submits that the appeal is hopeless, we point out one ground of appeal raised by KPC which does not seem to be a trifle. It is contended that the trial court erred in failing to consider arguments on constitutional avoidance. Proceeding instead on a narrow basis that the respondents’ claims attained the threshold set out under Rule 10 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules as a result of which: the trial court permitted the convolution of personal tortious claims with alleged constitutional violations, permitting the respondents to evade the higher evidentiary burden and threshold associated with personal tortious claims, and instead substituted it with the much lower evidentiary burden and threshold associated with alleged constitutional violation claims; an improper award of reliefs for personal tortious claims that had not met the requisite evidentiary burden; and allowing the respondents to evade the rigours of section 4(2) of the Limitation of Actions Act which bars the institution of tortious claims 3 years from the date of the cause of action. 16.On the second limb, the decree involves payment of a colossal sum of money, in excess of Kshs 3,000,000,000/-. This is a money decree. The applicant raises a doubt as to the ability of the 3075 respondents to repay the sum in the event of a successful appeal. The inability has not been rebutted. The respondents indeed admit this financial fragility but blame the oil spillage for their fate. KPC, in addition, contends that given the sheer numbers of the respondents and the geographical coverage of their places of residence, forty-two kilometres, it will be a logistical nightmare to recover money paid out should occasion arise. This apprehension, too, has not been shown by the respondents to be unfounded. On these two alone, KPC has made out a case that if the monetary aspect of the decree was not stayed then its appeal will be rendered nugatory. See Kenya Hotel Properties Limited v Willesden Investments Limited (Civil Application 322 of 2006) [2007] KECA 401 (KLR)). While we are sympathetic to the respondents’ plight no evidence has been placed before us linking their current financial circumstances to the oil spillage. 17.What has caused us considerable anxiety is the rival posturing by the parties as to what a stay of the restoration order would portend to the environment, each backing its arguments with expert reports. We have already alluded to these reports at length. It did not help matters that NEMA (the 3076th respondent), which may have given some authoritative view of the controversy, neither filed any response to the motion nor attended court at the hearing. However, in leaning towards granting stay even on this second aspect, we observe that it had been reported on 18th June 2025 that hydrocarbon levels in the affected area was within safe parameters. While this finding will be contested by the 3075 respondents, it may be evidence that some level of bioremediation has been achieved by the measures taken by KPC. This may be of some comfort as the hearing of the appeal is fast tracked so that the intractable issues it raises can be resolved with finality. 18.In the end we allow the notice of motion dated 3rd September 2025.There shall be a stay of execution of the Judgment and subsequent Decree of the Environment and Land Court (ELC) at Makueni delivered in Petition No. 9 of 2019 (consolidated with Petitions Nos 8 and 12 of 2019) on 11th July 2025. Civil Appeal No. E905 of 2025 shall be heard on priority basis. Costs of the motion shall abide the outcome of the appeal. DATED AND DELIVERED AT NAIROBI THIS 29TH DAY OF MAY 2026.W. KARANJA.................................JUDGE OF APPEALF. TUIYOTT.................................JUDGE OF APPEALW. KORIR.................................JUDGE OF APPEALI certify that this is a true copy of the original.signedDEPUTY REGISTRAR.