Erdermann Properties Limited v National Environment Tribunal; National Environment Management Authority & another (Interested Parties) [2020] KECA 394 (KLR)

Court of Appeal

7 August 2020

WKW. Karanja DMD.K. Musinga SKS. ole Kantai

1,889 words in judgment

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The bottom line

The Court of Appeal refused to stop the tribunal's freeze on Erdemann's Phase 3 construction, confirming the tribunal can preserve the status quo pending appeal under Kenyan environmental law.

What this practically means

Executive summary

Erdemann Properties Limited, developer of Great Wall Gardens Phases 1 to 3 at Athi River, sought relief in the Court of Appeal after the National Environment Tribunal, in an appeal by London Distillers (K) Limited, stayed construction of Phase 3 pending appeal under section 129(4) of the Environmental Management and Coordination Act. The applicant instead pursued parallel litigation: a Machakos judicial review case in which Mbogo, J., by ruling of 23rd April 2020, found the suit a replica of earlier proceedings before Angote, J., held that the ex parte leave orders of 20th December 2019 amounted to an illegal review by a court already functus officio, found abuse of process through forum shopping and non-disclosure, struck out the proceedings and barred the applicant from challenging section 129(4) without leave. The applicant filed notice of appeal and moved the Court of Appeal under Rule 5(2)(b) for an expedited hearing, a stay of the High Court ruling, and an injunction restraining operationalization of the tribunal's decision. The Court restated the twin test: an applicant must show an arguable appeal and that it would be rendered nugatory absent relief. Section 129(4) EMCA expressly empowers the tribunal to maintain the status quo pending appeal, and the applicant's failure to prosecute the tribunal appeal while forum shopping undermined any arguability. The motion was dismissed with costs to the respondent and interested parties, though the intended appeal was certified for priority hearing given the scale of the investment.

Key legal issues

Tribunal's power to preserve status quo under section 129(4) EMCA

Holding

The tribunal clearly had power under section 129(4) EMCA to stay construction of Phase 3 pending appeal; the intended appeal attacking that power is not arguable.

Reasoning

The court reproduced section 129(4) and found that the provision expressly grants the tribunal power to grant an order of status quo pending an appeal before it. There was a live appeal before the tribunal, which the applicant chose not to prosecute, instead filing multiple suits in Nairobi, Machakos and Makueni. The High Court judge had found abuse of process through forum shopping and non-disclosure, and the Court of Appeal saw no arguable basis to disturb that on appeal.

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Abuse of process and forum shopping

Holding

The High Court rightly found the applicant had abused court process by forum shopping and withholding material information, making the intended appeal on that issue unarguable.

Reasoning

Mbogo, J. found the judicial review motion replicated earlier proceedings before Angote, J., whose decision to withdraw leave had already been rendered, and that the ex parte orders of 20th December 2019 amounted to an impermissible review by a court already functus officio. The applicant failed to disclose the withdrawal of the earlier leave. The Court of Appeal, without delving into matters for the appeal bench, adopted the view that there was no arguable appeal against those findings.

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Legal principles established

An applicant under Rule 5(2)(b) must show the appeal is arguable and that it would be rendered nugatory absent stay; failure on the first limb is fatal and dispenses with consideration of the second.
Section 129(4) EMCA confers on the National Environment Tribunal the power to maintain the status quo of any matter or activity pending determination of an appeal before it.

Court orders

1.The motion is dismissed with costs to the respondent and the interested parties
2.The intended appeal be filed and be heard on the basis of priority

Authorities

Legislation

Environmental Management and Coordination ActSection 129(1), (2), (3), (4)
Appellate Jurisdiction ActSections 3(1), (2) & (3), 3A & 3B
Court of Appeal Rules, 2010Rules 5(2)(b), 29, 31, 41, 42 & 47
Constitution of KenyaArticles 40, 47, 48 and 50(2)

Cases cited (1)

Management Corporation Stratta Title Plan No. 301 -vs- Lee Tat Development Pte Ltd
(2009) S GHC 234

On appeal from: Environment and Land Court at Makueni; E.L.C. No. 75 of 2019 (Machakos Environment and Land Court Judicial Review Case No. 75 of 2019)
Jurisdiction invoked: Sections 3(1), (2) & (3), 3A & 3B Appellate Jurisdiction Act; Rules 5(2)(b), 29, 31, 41, 42 & 47 Court of Appeal Rules, 2010

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Erdermann Properties Limited v National Environment Tribunal; National Environment Management Authority & another (Interested Parties) [2020] KECA 394 (KLR)", Case Analysis (2020). Civil Application No. 105 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/394/eng@2020-08-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.