Nakuru Water and Sanitation Service Co Limited (hereinafter referred to as the applicant) has come to court seeking orders that Pending the hearing and determination of the intended appeal, this Honorable court be pleased to issue an order of stay execution of the Judgment delivered on the 26 of September 2024 and the subsequent decree and all consequential orders arising therefrom. And that the costs of this application be provided for.
The application is based on grounds that the Honorable Court delivered a judgment in this matter on the 26th of September, 2024 whereby a mandatory injunction was issued compelling the Respondents to find an alternative disposal site for all toxic chemical and industrial wastes from the "1 Respondent and an order for environmental restoration.
The Applicant being aggrieved by the judgment has lodged a Notice of appeal before this Honorable Court. The Applicant has also filed an application for certified typed proceedings in the matter to enable it prepare and lodge a record of appeal. The applicant is apprehensive that if execution occurs and/or further proceedings conducted in the matter; the Applicant's appeal as well as this application will be rendered nugatory and the Applicant will suffer irreparable loss and damage.
That in the judgment, the court directed the Respondents to find alternative disposal site for all toxic chemical and industrial wastes from, the Respondent other than Lake Nakuru.
That the decree however cannot be implemented by the 2nd Respondent as it does, not have the mandate to license the disposal of toxic chemicals and. or industrial waste.
Further, that the Applicant herein cannot implement the courts orders as its mandate is only mandated to provide water and sewerage services and does not have any right and or duty to deal with industrial waste and that the judgment is not clear on the violations by the 2nd respondent much like the orders against it and that the application has been brought without undue delay and substantial loss will be occasioned on the respondent and or its Officer’s if they were cited. for contempt or decree enforced against the law.
The applicant states that she has an arguable appeal with high probability of success as can be seen from the draft memorandum of appeal, The 2nd Respondent is willing to furnish security in this matter owing to the nature of the orders issued by the court including environmental restoration order which is not the mandate of the Applicant herein and that the Applicant is willing and ready to abide with any conditions that the Honorable Court may impose pursuant. to this application. The applications is supported by the affidavit of James Nganga Gachathi who reiterates the grounds of the application.
RESPONDENTS REPLY
In reply the baboon project Kenya (hereinafter referred to as the respondent) through the affidavit of Simon Gichohi states that on 26th September 2024, this Court delivered a judgment in Baboon Project Kenya vs County Government of Nakuru, National Environment Management Authority and The Attorney General ELC Petition E004 of 2024, wherein the court made an order inter alia of injunction restraining the Respondents permanently from any further refuse disposal into Lake Nakuru Basin.
Furthermore, the court issued a declaration that the Respondent is responsible under 3(3) a to e and 87 of the Environment Management and Coordination Act for the refuse removal, refuse dumps and solid waste disposal of Plastics throughout Kenya.
The court further issued a declaration that the Respondents acts of abdicating responsibility contravenes Article 35 23(3) b and 423 (2)(c) of the Constitution.
Hence a mandatory order of injunction was issued compelling the Respondents to find alternative disposal sites for all toxic chemicals and industrial wastes from the Respondent other than Lake Nakuru Basin and an environmental restoration order was issued against the Respondents.
Lastly, a prohibitory injunction was issued to the Respondents permanently restraining any further disposal into the Lake Nakuru Basin. According to the respondent, despite the orders of the court the applicant has permitted the continued dumping of both solid and toxic wastes into the lake to the great harm to the aquatic life of Lake Nakuru Basin and its environs. The court must be satisfied that substantial loss may result applicant. The application has been made without unreasonable delay and such security as the court orders for the due performance of such decree.
The present application is without merit and ought to be dismissed for the following reasons. The applicant will not suffer any substantial loss if the orders sought are not granted. The judgment leading to the present application was delivered on 26th September 2024 and the present application draft memorandum of appeal was filed and dated on 9th December 2024 this is close to 3 months after the judgment was delivered. The 2nd respondent/applicant is guilty of unreasonable delay;
The petitioner/respondent filed its contempt application against the 1st and 2nd respondent 7tT November 2024. This application is pending before this court. The present application is an afterthought a reaction to the petitioners respondent contempt application and a well-orchestrated move by the 2nd respondent/applicant to delay the determination of the contempt application filed by the petitioner./respondent;
The applicant has not demonstrated that the intended appeal will be rendered nugatory if stay is not granted;
if, no prejudice will be suffered by the applicant if the orders sought are not granted.
This is an environmental pollution dispute and security for costs will not be adequate to remedy the damage caused on environment and to the aquatic fife oi the Lake Nakuru Basin.
Further, that grant of stay of execution pending appeal is discretionary. The court is invited to balance the interest of the applicant with those of the respondent. It is in the interest of justice and in order to the environment and the aquatic life of the Lake Nakuru Basin that the orders sought are denied
The court orders of of 26th September 2024 did not require the 2nd respondent to license a new dumping site for its chemical wastes. The judgment delivered on 26th September 2024 is clear to the extent that it required the 2nd respondent/applicant to find an alternative disposal site for all toxic chemical and industrial wastes from the respondent other than Lake Basin. The petitioners/applicant ought to be allowed to enjoy the fruits of its judgment. The applicants have not demonstrated any sufficient cause.
ANALYSIS AND DETRMINATION
This court is of the view that the provisions of the Civil Procedure Rules, relating to stay pending appeal apply to stay pending appeal in Constitutional petitions, and therefore I will apply the provisions of Order 42 Rule 6 (2) of the civil procedure rules which provides as follows :-
(2) No order for stay of execution shall be made under subrule (1) unless –
(a) The court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and
(b) Such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.
It is crystal clear in the rules that to succeed in an application for stay, or injunction pending appeal, one needs to demonstrate that the application has been made without unreasonable delay and that the applicant stands to suffer substantial loss if the order of stay is not granted. Lastly that the applicant is ready to provide security for the due performance of the decree in the event that he loses the appeal.
In this matter the on the first issue as to whether the application was filed without inordinate delay, I do find that the judgment was delivered on the 26th September 2024 and yet the application was filed on the 9th of December 2024 approximately 40 days after judgment. Inordinate delay is delay that is excessive, unreasonable and beyond what is typically expected or acceptable. It often implies a delay that is so long or unwarranted that it causes prejudice or harm to one or more parties involved.
In this case, I do find inordinate delay in filing the application for stay pending appeal. There is no explanation as to why the applicant took approximately 30 days to file the application. The application was made after commencement of the execution process and therefore it appears to be an afterthought.
The second issue is substantial loss. The applicant has not clearly explained to this court the substantial loss to be suffered if stay of execution is not granted because the order issued by the court can be implemented without any subtacial loss to the applicant. Moreover,the applicant has not demonstrated how the appeal shall be rendered nugatory if stay of execution is not granted.
On security for costs, I do find that the nature of the dispute does not allow this court to stay the execution of its orders on grounds of security as the decree issued herein is not monetary as the same is based on pollution of the environment. The upshot of the above is that the application is dismissed with costs.
The application is based on grounds that the Honorable Court delivered a judgment in this matter on the 26th of September, 2024 whereby a mandatory injunction was issued compelling the Respondents to find an alternative disposal site for all toxic chemical and industrial wastes from the "1 Respondent and an order for environmental restoration.
The Applicant being aggrieved by the judgment has lodged a Notice of appeal before this Honorable Court. The Applicant has also filed an application for certified typed proceedings in the matter to enable it prepare and lodge a record of appeal. The applicant is apprehensive that if execution occurs and/or further proceedings conducted in the matter; the Applicant's appeal as well as this application will be rendered nugatory and the Applicant will suffer irreparable loss and damage.
That in the judgment, the court directed the Respondents to find alternative disposal site for all toxic chemical and industrial wastes from, the Respondent other than Lake Nakuru.
That the decree however cannot be implemented by the 2nd Respondent as it does, not have the mandate to license the disposal of toxic chemicals and. or industrial waste.
Further, that the Applicant herein cannot implement the courts orders as its mandate is only mandated to provide water and sewerage services and does not have any right and or duty to deal with industrial waste and that the judgment is not clear on the violations by the 2nd respondent much like the orders against it and that the application has been brought without undue delay and substantial loss will be occasioned on the respondent and or its Officer’s if they were cited. for contempt or decree enforced against the law.
The applicant states that she has an arguable appeal with high probability of success as can be seen from the draft memorandum of appeal, The 2nd Respondent is willing to furnish security in this matter owing to the nature of the orders issued by the court including environmental restoration order which is not the mandate of the Applicant herein and that the Applicant is willing and ready to abide with any conditions that the Honorable Court may impose pursuant. to this application. The applications is supported by the affidavit of James Nganga Gachathi who reiterates the grounds of the application.
RESPONDENTS REPLY
In reply the baboon project Kenya (hereinafter referred to as the respondent) through the affidavit of Simon Gichohi states that on 26th September 2024, this Court delivered a judgment in Baboon Project Kenya vs County Government of Nakuru, National Environment Management Authority and The Attorney General ELC Petition E004 of 2024, wherein the court made an order inter alia of injunction restraining the Respondents permanently from any further refuse disposal into Lake Nakuru Basin.
Furthermore, the court issued a declaration that the Respondent is responsible under 3(3) a to e and 87 of the Environment Management and Coordination Act for the refuse removal, refuse dumps and solid waste disposal of Plastics throughout Kenya.
The court further issued a declaration that the Respondents acts of abdicating responsibility contravenes Article 35 23(3) b and 423 (2)(c) of the Constitution.
Hence a mandatory order of injunction was issued compelling the Respondents to find alternative disposal sites for all toxic chemicals and industrial wastes from the Respondent other than Lake Nakuru Basin and an environmental restoration order was issued against the Respondents.
Lastly, a prohibitory injunction was issued to the Respondents permanently restraining any further disposal into the Lake Nakuru Basin. According to the respondent, despite the orders of the court the applicant has permitted the continued dumping of both solid and toxic wastes into the lake to the great harm to the aquatic life of Lake Nakuru Basin and its environs. The court must be satisfied that substantial loss may result applicant. The application has been made without unreasonable delay and such security as the court orders for the due performance of such decree.
The present application is without merit and ought to be dismissed for the following reasons. The applicant will not suffer any substantial loss if the orders sought are not granted. The judgment leading to the present application was delivered on 26th September 2024 and the present application draft memorandum of appeal was filed and dated on 9th December 2024 this is close to 3 months after the judgment was delivered. The 2nd respondent/applicant is guilty of unreasonable delay;
The petitioner/respondent filed its contempt application against the 1st and 2nd respondent 7tT November 2024. This application is pending before this court. The present application is an afterthought a reaction to the petitioners respondent contempt application and a well-orchestrated move by the 2nd respondent/applicant to delay the determination of the contempt application filed by the petitioner./respondent;
The applicant has not demonstrated that the intended appeal will be rendered nugatory if stay is not granted;
if, no prejudice will be suffered by the applicant if the orders sought are not granted.
This is an environmental pollution dispute and security for costs will not be adequate to remedy the damage caused on environment and to the aquatic fife oi the Lake Nakuru Basin.
Further, that grant of stay of execution pending appeal is discretionary. The court is invited to balance the interest of the applicant with those of the respondent. It is in the interest of justice and in order to the environment and the aquatic life of the Lake Nakuru Basin that the orders sought are denied
The court orders of of 26th September 2024 did not require the 2nd respondent to license a new dumping site for its chemical wastes. The judgment delivered on 26th September 2024 is clear to the extent that it required the 2nd respondent/applicant to find an alternative disposal site for all toxic chemical and industrial wastes from the respondent other than Lake Basin. The petitioners/applicant ought to be allowed to enjoy the fruits of its judgment. The applicants have not demonstrated any sufficient cause.
ANALYSIS AND DETRMINATION
This court is of the view that the provisions of the Civil Procedure Rules, relating to stay pending appeal apply to stay pending appeal in Constitutional petitions, and therefore I will apply the provisions of Order 42 Rule 6 (2) of the civil procedure rules which provides as follows :-
(2) No order for stay of execution shall be made under subrule (1) unless –
(a) The court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and
(b) Such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.
It is crystal clear in the rules that to succeed in an application for stay, or injunction pending appeal, one needs to demonstrate that the application has been made without unreasonable delay and that the applicant stands to suffer substantial loss if the order of stay is not granted. Lastly that the applicant is ready to provide security for the due performance of the decree in the event that he loses the appeal.
In this matter the on the first issue as to whether the application was filed without inordinate delay, I do find that the judgment was delivered on the 26th September 2024 and yet the application was filed on the 9th of December 2024 approximately 40 days after judgment. Inordinate delay is delay that is excessive, unreasonable and beyond what is typically expected or acceptable. It often implies a delay that is so long or unwarranted that it causes prejudice or harm to one or more parties involved.
In this case, I do find inordinate delay in filing the application for stay pending appeal. There is no explanation as to why the applicant took approximately 30 days to file the application. The application was made after commencement of the execution process and therefore it appears to be an afterthought.
The second issue is substantial loss. The applicant has not clearly explained to this court the substantial loss to be suffered if stay of execution is not granted because the order issued by the court can be implemented without any subtacial loss to the applicant. Moreover,the applicant has not demonstrated how the appeal shall be rendered nugatory if stay of execution is not granted.
On security for costs, I do find that the nature of the dispute does not allow this court to stay the execution of its orders on grounds of security as the decree issued herein is not monetary as the same is based on pollution of the environment. The upshot of the above is that the application is dismissed with costs.