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ELCDismissedCivil Appeal No. EE007 of 2020· [2021] KEELC 3236 (KLR)

London Distillers (K) Limited v National Environment Management Authority & another [2021] KEELC 3236 (KLR)

Environment and Land Court
21 May 2021
6,515 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

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The court dismissed both sides' applications, ruling related appeals belong together in Machakos and contempt of a Tribunal order must be raised before the Tribunal first.

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 two competing applications arising from the National Environment Tribunal's judgment of 30th September 2020 in NET Appeal No. 21 of 2019, which dismissed London Distillers' challenge to an EIA licence issued by NEMA to the 2nd Respondent for the Greatwall Gardens Housing Phase 3 development at Athi River. Both parties appealed the Tribunal's decision: the 2nd Respondent filed Nairobi ELC Civil Appeal No. E039 of 2020 challenging part of the judgment, while London Distillers filed the present appeal (Civil Appeal No. EE007 of 2020) challenging it in entirety and separately sought to have the 2nd Respondent's Managing Director committed to jail for contempt for resuming construction contrary to Section 130(2) of EMCA. The 2nd Respondent applied to strike out or stay the instant appeal as res sub judice and raised a preliminary objection on the contempt application. The Court dismissed the res sub judice application, holding that the 2nd Respondent should have filed its appeal in Machakos where the property is situated, and that the two appeals raise distinct issues and remedies; with both appeals now transferred to Machakos, they should be heard together. The Court also dismissed the contempt application, holding that under Sections 133 and 143(1)(d) of EMCA and the exhaustion doctrine, the Tribunal retains jurisdiction to enforce its own orders and punish for contempt, and this Court lacks jurisdiction. Both applications were dismissed with no order as to costs.

Key legal issues

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01

Whether the instant Appeal is res sub judice under Section 6 of the Civil Procedure Act

Holding

The Appeal is not res sub judice because the 2nd Respondent filed its Appeal in Nairobi, a court without territorial jurisdiction, and the two Appeals raise distinct issues and seek different remedies.

Reasoning

Section 12 of the Civil Procedure Act requires suits affecting immovable property to be filed where the property is situated; the suit property is in Machakos. Okongo J had transferred the Nairobi appeal to Machakos. The 2nd Respondent's appeal was partial while the instant appeal challenges the Tribunal's judgment in its entirety, so the matters are not directly and substantially in issue in both.

p. 6
02

Whether this Court has jurisdiction to punish for contempt of the Tribunal's order under Section 130(2) of EMCA

Holding

This Court lacks jurisdiction; the Tribunal has power under Sections 133 and 143(1)(d) of EMCA to enforce its own orders and punish for contempt, and the exhaustion doctrine requires the contempt application to be made first to the Tribunal.

Reasoning

The alleged contemptuous acts would be breaches of the Tribunal's judgment, not of this Court's orders. Section 133 makes contempt of the Tribunal an offence punishable by the Tribunal. Where a dispute resolution mechanism exists outside the courts, it must be exhausted first, and either party may move this Court on appeal after the Tribunal rules.

p. 7

Legal principles established

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  • A party is entitled to file an appeal in the court with territorial jurisdiction over the subject matter, and an appeal filed in a court lacking territorial jurisdiction does not render a subsequently filed appeal in the proper court res sub judice.
  • The National Environment Tribunal has jurisdiction to enforce its own orders and punish for contempt, and alleged contempt of a Tribunal order must first be raised before the Tribunal under the exhaustion doctrine.

Court orders

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  1. 1.The 2nd Respondent's Notice of Motion dated 4th November 2020 seeking striking out and/or stay of the instant Appeal is dismissed
  2. 2.The Appellant's Application dated 4th November 2020 seeking contempt findings against the 2nd Respondent's Managing Director is dismissed
  3. 3.Both Applications dismissed with no order as to costs

Authorities

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Legislation

  • Civil Procedure ActSection 6
  • Civil Procedure ActSection 12
  • Environmental Management and Co-ordination ActSection 130(2)
  • Environmental Management and Co-ordination ActSection 133
  • Environmental Management and Co-ordination ActSection 143(1)(d)
  • Environment and Land Court ActSection 19(2)
  • Judicature ActSection 5(1)
  • Constitution of KenyaArticle 159

Cases cited (14)

  • Thika Min Hydro Co. Ltd vs. Josphat Karu Ndwiga
    (2013) eKLR
  • Nyanza Garage vs. Attorney General
    Kampala High Court Civil Suit No. 450 of 1993
  • ASL Credit Limited vs. Abdi Basid Sheikh Ali & Another
    [2019] eKLR
  • Patrick Mutune Katubi vs. General Manager Harambee Cooperative Savings & Credit Society Ltd & Another
    (2012) eKLR
  • Speaker of National Assembly vs. Njenga Karume
    (1992) eKLR
  • Geoffrey Muthinja Kabiru & 2 Others vs. Samuel Munga Henry & 1756 Others
    as cited in Krystalline Salt Limited vs. Kenya Revenue Authority [2019] eKLR
  • Krystalline Salt Limited vs. Kenya Revenue Authority
    [2019] eKLR
  • Milcah Jeruto vs. Fina Bank
    (2013)
  • Electro Watts Limited vs. Alios Finance Kenya Limited
    (2018) eKLR
  • Sonalux Limited & Another vs. Barclays Bank of Kenya & 2 others
    (2008) eKLR
  • Republic vs. Registrar of Societies - Kenya & 2 Others Ex-Parte Moses Kirima & 2 Others
    [2017] eKLR
  • Edward R. Ouko vs. Speaker of the National Assembly & 4 Others
    [2017] eKLR
  • David Ndii & Others vs. Attorney General & Others
    Nairobi High Court Petition No. 282 of 2020
  • Erdermann Property Limited vs. London Distillers (K) Limited & Another
    Nairobi ELC Civil Appeal No. E039 of 2020
On appeal from
National Environment Tribunal
NET Appeal No. 21 of 2019
Jurisdiction invoked
Appeals from the National Environment Tribunal to the Environment and Land Court under the Environmental Management and Co-ordination Act (EMCA)

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, "London Distillers (K) Limited v National Environment Management Authority & another [2021] KEELC 3236 (KLR)", Case Analysis (2021). Civil Appeal No. EE007 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3236/eng@2021-05-21

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