Montessori Learning Centre (MLC) v Mathu (Chairman) & 2 Others (Jointly suing as and on behalf of Kyuna Neighbours Association (KNA)) & 2 others (Civil Appeal E015 of 2023) [2026] KECA 1290 (KLR)
The bottom line
#The Court of Appeal accepted the school's withdrawal of its appeal but made it pay most of the costs, punishing a three-year delay.
What this practically means
#Executive summary
#Key legal issues
#Whether the erroneous citation of rule 70 instead of rule 98 defeats a notice of withdrawal
No; the court accepted the withdrawal under the correct rule, rule 98, noting rule 70 applies only to criminal appeals.
Counsel for the appellant acknowledged the notice erroneously cited rule 70 and that the correct provision is rule 98. The single Judge was prepared to look past the mis-citation and deal with the substance of the application, accepting the withdrawal under rule 98 while noting the appellant's three-year delay and the anxiety caused to the 1st respondent, which informed the partial costs award.
Whether the appeal had already been withdrawn before the Deputy Registrar
No; the record before the Deputy Registrar contained no order of withdrawal, making it necessary for the notice to be placed before a single Judge.
Counsel asserted that the appeal had been withdrawn before Hon. Musumba, a Deputy Registrar. The Judge called for the record of those proceedings and found no order of withdrawal, reasoning that if such an order existed it would have been superfluous to place the notice before a single Judge. The assertion was therefore unproved and the withdrawal application fell to be determined on its merits.
The jurisdictional fate of the appeal had it proceeded
The appeal was doomed to fail because this Court lacks jurisdiction by virtue of section 130(1) and (5) of EMCA, as earlier held in the rule 5(2)(b) ruling.
The Judge revisited the earlier full-bench ruling of Musinga (P), Laibuta and Ngenye Macharia JJA in the Civil Application E404 of 2022, which struck out the rule 5(2)(b) application for want of jurisdiction, holding that section 130(5) of EMCA mandatorily bars appeals from the ELC to the Court of Appeal on NET matters and that the ELC, being of equal status with the High Court, falls within that bar. The pending appeal could therefore not have succeeded.
Legal principles established
#- Withdrawal of an appeal in the Court of Appeal is governed by rule 98 of the Court of Appeal Rules; rule 70 applies to criminal appeals.
- By section 130(1) and (5) of EMCA, no appeal lies from the Environment and Land Court to the Court of Appeal on matters arising from decisions of the National Environment Tribunal; final adjudication rests with the ELC/High Court.
- A party who persists with a hopeless appeal and delays withdrawal may be penalised in costs even where withdrawal is ultimately permitted.
Court orders
#- 1.The withdrawal of the appeal was accepted under rule 98 of the Court of Appeal Rules
- 2.The appellant to shoulder 80% of the costs of the withdrawn appeal to the 1st respondent
- 3.No orders as to costs between the appellant and the 2nd and 3rd respondents
- On appeal from
- Environment and Land Court
- Nairobi ELCA No. E032 of 2022
- Jurisdiction invoked
- Appeal from the ELC; jurisdiction addressed by reference to article 164(3)(b) of the Constitution and section 130(5) of EMCA, under which the court earlier held it had no jurisdiction over the appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Montessori Learning Centre (MLC) v Mathu (Chairman) & 2 Others (Jointly suing as and on behalf of Kyuna Neighbours Association (KNA)) & 2 others (Civil Appeal E015 of 2023) [2026] KECA 1290 (KLR)", Case Analysis (2026). Not stated in the judgment (arising from Nairobi ELCA No. E032 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1290/eng@2026-07-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.