London Distillers (K) Limited v National Environment Management Authority & another [2021] KEELC 3236 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the instant Appeal is res sub judice under Section 6 of the Civil Procedure Act
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.
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.
Whether this Court has jurisdiction to punish for contempt of the Tribunal's order under Section 130(2) of EMCA
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.
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.
Legal principles established
#- 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
#- 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.The Appellant's Application dated 4th November 2020 seeking contempt findings against the 2nd Respondent's Managing Director is dismissed
- 3.Both Applications dismissed with no order as to costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.