Republic v National Environment Tribunal; National Environment Management Authority & 4 others (Interested Parties) Ex-parte Edermann Property Limited [2019] KEELC 1092 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether leave and the consequential stay in judicial review can be set aside
Yes - the court may set aside its own ex-parte leave orders under its inherent jurisdiction.
Relying on Aburili J. in Republic v National Transport Services Authority and the Court of Appeal in East Africa Television Network and Kenya Bus Services, the court confirmed jurisdiction to set aside leave and/or stay granted ex-parte in judicial review proceedings, where justice and fair play so require.
Material non-disclosure by the Ex-parte Applicant
The Ex-parte Applicant failed to disclose the pending review application before the Tribunal, justifying setting aside the ex-parte orders.
The court found the Chamber Summons omitted the fact that the impugned Tribunal orders were subject to a pending Application for Review dated 5th September 2019. This omission was material non-disclosure and constituted abuse of the court process, vitiating the ex-parte orders of 12th September 2019.
Parallel proceedings and interim nature of the impugned order
The applicant should have awaited the Tribunal's Ruling rather than commence judicial review over an interim order.
All issues raised in the judicial review, including the applicability of Section 129(4) EMCA, were already before the Tribunal. The impugned order of 4th September 2019 was interim in nature; the applicant should have awaited the Tribunal's Ruling instead of triggering parallel proceedings.
Legal principles established
#- The court has jurisdiction to set aside leave and/or stay granted in judicial review proceedings.
- Ex-parte orders obtained on material non-disclosure should be set aside.
- Filing a judicial review application while substantially similar applications are pending before the Tribunal creates impermissible parallel proceedings.
Court orders
#- 1.The ex-parte orders granted by the court on 12th September, 2019 be and are hereby set aside in their entirety
- 2.The Ex-parte Applicant to pay the costs of the Application dated 12th September, 2019
- Jurisdiction invoked
- Judicial review jurisdiction under Order 53 of the Civil Procedure Rules (leave for certiorari and prohibition; leave to operate as stay)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v National Environment Tribunal; National Environment Management Authority & 4 others (Interested Parties) Ex-parte Edermann Property Limited [2019] KEELC 1092 (KLR)", Case Analysis (2019). Judicial Review Application (Chamber Summons dated 12th September, 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1092/eng@2019-10-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.