Erdemann Property Limited v National Environment Tribunal; National Environment Management Authority & another (Interested Parties) [2020] KEELC 3063 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out a repeat judicial review case and cancelled its own ex parte orders because the applicant hid earlier proceedings and sought to re-litigate a decided issue.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this JR case is competent.
- 2.Whether the ex parte order issued by this Court on 20th day of December 2019 should be discharged, varied and/or set aside.
Key legal issues
#Whether the judicial review proceedings were barred by res judicata, estoppel and sub judice and hence incompetent
The JR motion was a replica of Machakos JR No. 41 of 2019, revolving around the same question of the applicability of section 129(4) of EMCA between the same parties; it was res judicata and an abuse of process, rendering the proceedings incompetent.
The court compared the pleadings in JR 41/2019 and the current motion and found both gravitated around the Tribunal's application of section 129(4) of EMCA. Angote J had already dealt with the withdrawal of leave for the identical motion, and the finality principle, as expressed in the Singapore Court of Appeal authority, barred a fresh action on the same issue. Erdemann was improperly exploiting the fact that the matter had been handled by two different judges.
Whether the ex parte orders of 20/12/2019 should be discharged, varied or set aside
The orders were set aside because the Court was functus officio regarding the earlier ruling and Erdemann had failed to disclose that leave in JR 41/2019 had been withdrawn; the Court exercised its inherent power to set them aside.
The grant of leave on 20/12/2019 amounted to an unprocedural and illegal review of Angote J's ruling of 18/10/2019, since the issue had already been determined. Although some disclosure of pending suits was made, the critical non-disclosure was the withdrawal of the earlier leave. Full candour was required; had it been made, the ex parte orders would not have issued. The Court's inherent power to set aside JR orders was therefore properly invoked.
Whether the JR motion, which challenged the merits of the Tribunal's decision, was a proper judicial review
The motion sought to challenge the merits of the NET decision rather than its decision-making process, which is outside the scope of judicial review.
The court reaffirmed that judicial review interrogates the process by which a decision was made, not its correctness on the merits. Erdemann's motion, attacking the Tribunal's ruling on section 129(4) of EMCA as wrong in law, was an appeal disguised as judicial review and should have been confined to process-related questions.
Legal principles established
#- Where a litigant is aggrieved by the withdrawal of leave to commence judicial review proceedings, the remedy is an appeal, not a fresh judicial review motion; the public interest in finality of litigation outweighs re-litigating an issue already decided between the same parties.
- A court that has already ruled on an issue and become functus officio cannot, through a fresh ex parte grant of leave, effectively review its earlier ruling; such orders are an unprocedural and illegal review and an abuse of process where material facts are concealed.
- Judicial review is concerned with the decision-making process, not the merits of the decision challenged.
- A party seeking ex parte relief must make full and frank disclosure; failure to disclose that leave in prior proceedings had been withdrawn justifies setting aside the ex parte orders.
Court orders
#- 1.The ex parte order issued on 20th day of December 2019 ex-debito justiciae is hereby discharged, varied and/or set aside.
- 2.The entire proceedings for judicial review are hereby struck out.
- 3.ERDERMANN PROPERTY LTD be and is hereby barred from challenging the applicability of the provisions of section 129 (4) of the Environment Management Coordination Act before this honorable Court or any other Court and the National Environment Tribunal except with the leave of this honorable Court.
- 4.The 2nd Interested Party shall also have costs of the application.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 53 Rule 1(4) of the Civil Procedure Rules; Articles 47, 50 and 159(2)(d) of the Constitution; Fair Administrative Action Act No. 4 of 2015; Sections 1A, 1B and 3A of the Civil Procedure Act, Cap 21 (inherent power to set aside ex parte orders)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The ex parte order issued on 20th day of December 2019 ex-debito justiciae is hereby discharged, varied and/or set aside.
The entire proceedings for judicial review are hereby struck out.
ERDERMANN PROPERTY LTD be and is hereby barred from challenging the applicability of the provisions of section 129 (4) of the Environment Management Coordination Act before this honorable Court or any other Court and the National Environment Tribunal except with the leave of this honorable Court.
The orders issued by this Court on 20/12/2019 therefore amounted to an unprocedural and illegal review of the orders of 18/10/2019 because this Court was already Functus Officio.
The general rule is that where a litigant seeks to re-open in a fresh action an issue which was previously raised and decided on the merits in an earlier action between the same parties, the public interest in the finality of litigation (the finality principle) outweighs the public interest in achieving justice between the parties
Issues in the judgment
#Date inconsistency in narrative: the ruling is dated 23rd April 2020 but the substantive judgment refers to setting aside 'the orders of 20 th December, 2020' whereas everywhere else the ex parte orders are of 20th December 2019.
Costs order refers to a '2nd Interested Party' although only one Interested Party (London Distillers (K) Ltd) appears in the proceedings; the narrative also records a mention date of '13/01/2010' which should presumably be 13/01/2020.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Erdemann Property Limited v National Environment Tribunal; National Environment Management Authority & another (Interested Parties) [2020] KEELC 3063 (KLR)", Case Analysis (2020). Machakos ELC JR Case No. 75 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3063/eng@2020-04-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.