[2000] KECA 3 (KLR)

Western vPasha

Court of Appeal, at Nairobi September 7, 2000

Gicheru, Bosire & O’Kubasu JJ A

Civil Application No NAI 254 of 2000

(An application for an injunction in an intended appeal from a ruling of the

High Court of Kenya at Nairobi (Khamoni J) dated 16th August, 2000 in

HCCS No 1199 of 2000)

Environmental law- conservation agreement - application to enforce a

conservation agreement which has been breached - consideration by court.

Injunction- interim injunction - to enforce a conservation agreement not

to carry out mining - matters the court will consider.

The applicant filed an application under rule 5 (2) (b) of the Court of

Appeal Rules for an interim injunction restraining the respondent from

carrying on any mining activities on, among other property, a parcel of

land known as Kajiado/Ole Kasasa/593, pending the determination of the

intended appeal.

The applicant’s suit before the Superior Court was based on a written

agreement executed by both parties in which the respondent, the registered

owner of the parcels of land, agreed to preserve the land and to ensure no

mining activity was carried out. However, in breach, it was averred, he

had permitted mining activity to be carried out.

It was contended for the respondent that because the subject property of

the conservation agreement was not demarcated on the ground, it was not

possible to say whether there was breach, even though it was admitted

that some mining was going on.

Held:

1. In an application under rule 5(2)(b) of the Court of Appeal Rules, the

court is guided by two basic principles:

a) The applicant must show that his appeal or intended appeal is arguable,

and;

b) Unless an injunction or stay as the case may be is granted, his appeal or

intended appeal will be rendered nugatory.

2. Prima facie, there was no clear record to show whether or not the

applicant’s application before the High Court was argued. Therefore,

the applicant had an arguable appeal.

3. In view of the admission that some mining activity was going on and

considering that the activity might spread to the area covered by the

agreement, unless a stay was granted, the appellant’s appeal may be

rendered nugatory.

Application granted.

Cases

No cases referred to.

Statutes

1. Court of Appeal Rules (cap 9 Sub Leg) rule 5 (2)(b)

2. Civil Procedure Rules (cap 21 Sub Leg) order XXXIX rule 1

Advocates

Mr Quadrosfor the Applicant

Mr Aginafor the Respondent

September 7, 2000, the following Ruling of the Court was delivered.

This is an application under rule 5(2)(5) of The Court of Appeal Rules

(The Rules) by David Western, a Wildlife Conservationist, for an interim

injunction restraining Ishmael Kokayia Pasha, the respondent, his agents,

servants or any other person acting on his behalf from carrying on any

mining activities on among other property a parcel of land known as

Kajiado/Ole Kasasi/593, pending the determination of an intended appeal

against the ruling and order of Khamoni J given on 16th August 2000

whereby he declined to grant an interim injunction in favour of the

applicant as plaintiff in High Court Civil Case No 1199 of 2000.

In an application under rule 5(2)(b) of the Rules the Court is guided by

two basic principles, the first being that the applicant must show that his

appeal or intended appeal is arguable, and, second, that unless an injunction

or stay as the case may be, is granted his appeal or intended appeal will be

rendered nugatory.

The applicant’s suit before the superior court is based on a written

agreement which was duly executed by both parties herein in which the

respondent, as the registered owner of the aforesaid parcels of land, agreed

to preserve the same in their predominant condition, and in particular to

ensure that no mining activity was carried out thereon. In his plaint which

was filed in the Superior Court on 28th July, 2000, he avers, inter alia, that

the respondent in breach of the aforesaid agreement has permitted the

mining of building stones in part of parcel No Kajiado/Ole Kasasi/593,

and prays that he be restrained from continuing to do so. Pending hearing

and determination of the aforesaid suit the applicant moved the superior

court by Chamber Summons under O 39 rule 1 of the Civil Procedure

Rules for an interlocutory injunction with a view to preserving the status

quo. That application was posted to come for hearing before Khamoni J

who when the application was called, indicated that he was minded to

grant the orders sought. However, after asking a few explanatory questions

he changed his mind and without hearing either party on the merits of the

application, proceeded to give his ruling declining to grant the injunction.

The applicant now laments that his application was perfunctorily

dismissed, that he should have but was not granted any opportunity of

arguing it before the trial court and that had he been granted the opportunity

of doing so, he would have demonstrated that indeed the respondent has

breached the conservation agreement. On that ground his counsel Ms

Quadros submitted before us that his intended appeal is arguable and that

unless we grant the interim injunction the intended appeal will be rendered

nugatory, as the vegetation on the suit land is likely to be irretrievably

destroyed.

Mr Agina for the respondent urged the view that because the subject

property of the conservation agreement is not demarcated on the ground

it may not be possible to say whether or not there has been breach of the

agreement.

We have looked at the proceedings of the court below and prima facie,

there is no clear record to show whether or not the applicant’s application

before that court was argued. We are therefore of the view that the

applicant’s intended appeal is arguable. Mr Agina conceded that some

mining activity is going on on parcel No Kajiado/Ole Kasasi/593, but

denied the activity is on the portion which is included in the conservation

agreement. In view of that admission and considering that the activity

might inadvertently or otherwise extend to the area covered by the said

agreement we are of the view that unless we grant the injunction, the

appellant’s appeal may be rendered nugatory.

In the result, we allow the applicant’s application dated 28th August 2000,

and grant order in terms of the prayers in the application. The costs of the

application to be in the intended appeal.