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ELCOther· [2020] KEELC 1228 (KLR)

Republic v Export Processing Zones Authority & 2 others; London Distillers (K) Ltd & 3 others (Interested Parties) Ex parte Erdermann Property Limited [2020] KEELC 1228 (KLR)

Environment and Land Court of Kenya
25 September 2020
4,289 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Machakos (O.A. Angote, J) determined the Applicant's Notice of Withdrawal of its suit. The Applicant had sought leave to commence judicial review proceedings to prohibit the 1st Interested Party, London Distillers Ltd, from discharging untreated effluent into the 1st Respondent's sewer line. Before the leave application was heard, regulatory notices and a control order were issued against the Interested Party, and the Applicant sought to withdraw. The 1st Respondent did not oppose withdrawal but claimed costs; the 1st Interested Party opposed withdrawal on the ground that pending contempt proceedings against the Applicant's advocate and director - arising from an alleged prejudicial press statement on the sub judice rule - had not been heard or purged. The court held that although a party generally has an absolute right to withdraw a suit not set down for hearing, following the Court of Appeal's decision in the Beijing Industrial case, that right cannot be exercised where contempt proceedings are pending, since contempt is quasi-criminal in nature and implicates the public interest in upholding the rule of law. Permitting withdrawal to defeat the contempt application would be an abuse of the process of court under Section 3A of the Civil Procedure Act. The court declined to permit withdrawal and, not reaching the issue of costs of the suit, struck out the Notice of Withdrawal with costs to the 1st Interested Party.

Key legal issues

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01

Whether the Applicant could withdraw its application for leave to institute judicial review proceedings as of right

Holding

Generally yes, where the matter has not been set down for hearing, but the right is not absolute where contempt proceedings are pending against the withdrawing party

Reasoning

The court accepted the general rule from John Ochanda and Salat that a party may withdraw proceedings as of right subject to costs, and Order 25 Rule 1 of the Civil Procedure Rules. However, following the Beijing Industrial case, where an application for committal for contempt against the party is pending, the public interest in upholding the supremacy of the law outweighs the party's private right to withdraw. The pending contempt application meant the suit could not be terminated at the Applicant's instance alone.

p. 4
02

Effect of pending contempt proceedings on the right to withdraw

Holding

Withdrawal to defeat pending contempt proceedings is an abuse of court process and cannot be permitted

Reasoning

Relying on the Court of Appeal in Beijing Industrial Designing & Researching Institute v Lagoon Development Limited, the court held that contempt proceedings are quasi-criminal, involve the public interest at large, and a party alleged to be in contempt cannot terminate the proceedings by withdrawing its own suit. Such withdrawal would sacrifice the public interest in the rule of law and amount to an abuse of process under Section 3A of the Civil Procedure Act.

p. 5

Legal principles established

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  • A party enjoys an absolute right to withdraw a suit that has not been set down for hearing, subject only to costs, but that right is lost where contempt of court proceedings are pending against that party, because contempt proceedings are quasi-criminal and implicate the public interest.
  • Withdrawal of a suit for the purpose of defeating pending contempt proceedings is an abuse of the process of court which the court has power to stop under Section 3A of the Civil Procedure Act.

Court orders

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  1. 1.The Applicant's Notice of Withdrawal of the suit is struck out with costs to the 1st Interested Party
  2. 2.The issue of costs of the withdrawal was not addressed since withdrawal was declined

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 25 Rules 1, 2 and 3
  • Civil Procedure Act, 2010Section 27(1)
  • Civil Procedure ActSection 3A
  • Advocates Remuneration Order, 2014Schedule 6 (certificate for senior counsel)

Cases cited (7)

  • John Ochanda vs. Telkom Kenya Limited [2014] eKLR
    [2014] eKLR
  • Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others, SC App. No. 16 of 2014
    SC App. No. 16 of 2014
  • Beijing Industrial Designing & Researching Institute vs. Lagoon Development Limited, 2015 eKLR
    2015 eKLR
  • Joseph Oduor Anode V Kenya Red Cross Society, Nairobi High Court Civil Suit No. 66 of 2009; [2012] eKLR
    [2012] eKLR
  • Republic v Kenya Airports Authority & 4 others Ex-Parte Transglobal Cargo Centre Limited [2015] eKLR
    [2015] eKLR
  • Teacher's Service Commission vs. Kenya National Union of Teachers & 2 Others Petition No. 23 of 2013
    Petition No. 23 of 2013
  • Johnson v Grant, 1923 SC 789 at 790
    1923 SC 789 at 790
Jurisdiction invoked
Inherent power of the High Court under Section 3A of the Civil Procedure Act and Order 25 of the Civil Procedure Rules, 2020

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Republic v Export Processing Zones Authority & 2 others; London Distillers (K) Ltd & 3 others (Interested Parties) Ex parte Erdermann Property Limited [2020] KEELC 1228 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1228/eng@2020-09-25

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