Republic v National Environment Management Authority Ex parte Erdermann Property Ltd; National Environment Tribunal & 4 others (Interested Parties) [2021] KEELC 3974 (KLR)
The bottom line
#When a Kenyan court cancels the permission needed to start a judicial review case, the entire case automatically dies, and no one gets extra costs for killing it.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Notice of Motion dated 23rd September, 2019 (the substantive Judicial Review Application) survived the setting aside of the leave granted on 12th September, 2019
- 2.Whether this court became functus officio upon delivering the Ruling of 18th October, 2019 or whether it can proceed to strike out the substantive Notice of Motion
- 3.Whether the 2nd Interested Party is entitled to costs in respect of the Notice of Motion dated 23rd September, 2019
Key legal issues
#Effect of setting aside leave on the substantive judicial review Notice of Motion
The substantive Notice of Motion became a nullity upon the Ruling of 18th October, 2019 vacating the leave, since leave is a condition precedent under Order 53 Rule 1 and Section 9(1)(b) of the Law Reform Act; the Applicant could not be faulted because leave was subsisting when it filed within the 21-day period.
Order 53 Rule 1 prohibits any application for mandamus, prohibition or certiorari without prior leave. The Applicant filed the substantive Motion while leave was subsisting and within the statutory 21 days, so it filed validly. When the court later vacated the leave, the foundation of the Motion was lost and it became a nullity by operation of law rather than by any fault of the Applicant.
Whether the court was functus officio after the Ruling of 18th October, 2019
The court was not functus officio for purposes of declaring the Motion a nullity and striking it out, because its earlier Ruling never dealt with the legality of the substantive Motion.
The functus officio doctrine expresses the principle of finality, but it did not bar this declaration because the court, in the 18th October Ruling, set aside only the ex-parte leave orders and did not pronounce itself on the substantive Notice of Motion. Declaring a dead pleading a nullity is a matter of convenience for the record and formal termination of the file, not a review of the earlier decision.
Costs of the struck-out Notice of Motion
No party is entitled to costs of the Notice of Motion because it was never argued and became void by operation of law; costs following the event, the event was the automatic nullity, not any default by the Ex-parte Applicant.
Costs follow the event under Section 27 of the Civil Procedure Act. The relevant event was the Motion becoming void by operation of law, not that it was filed without leave or out of time. Had it been so filed, costs would have followed; the 2nd Interested Party had already been awarded costs of the successful application to set aside leave.
Legal principles established
#- Where leave to institute judicial review proceedings is set aside, the substantive Notice of Motion filed pursuant to that leave becomes a nullity by operation of law and cannot be prosecuted
- Even where a pleading is a nullity on the face of the record, the court may declare it so to formally terminate the proceedings and update the register, and in doing so is not functus officio
Court orders
#- 1.The Notice of Motion dated 23rd September, 2019 is struck out
- 2.No order as to costs in respect of the struck-out Notice of Motion
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 8 and 9 of the Law Reform Act as read with Order 53 of the Civil Procedure Rules, 2010; Article 47 of the Constitution and the Fair Administrative Action Act, 2015
Relief refused
#Costs of the Application and the entire proceedings payable to the 2nd Interested Party
The Notice of Motion became a nullity by operation of law and no arguments were made in respect of it; costs for setting aside leave had already been awarded in the earlier Ruling
Costs
The Notice of Motion dated 23rd September, 2019 is struck out with no order as to costs
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.
For those reasons, the Notice of Motion dated 23rd September, 2019 is struck out with no order as to costs.
Consequently, the Notice of Motion dated 23rd September, 2019 became a nullity from the date the court pronounced its Ruling on 18th October, 2019 and set aside the leave that it had granted to the Ex-parte Applicant.
This court cannot be said to be functus officio in making such a declaration considering that it never dealt with the legality of the said Notice of Motion while delivering its Ruling of 18th October, 2019.
If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the Court to set it aside.
Indeed, even where a pleading is null and void on the face of the record, the court ought to state so to enable the proceedings to be formerly terminated, and for the court register to indicate as much.
Issues in the judgment
#The judgment refers inconsistently to the date of the substantive Notice of Motion in places, and inconsistently to the date of the Ruling as 18th October 2019 and 18th November 2019
The Application is attributed to the '3rd Interested Party/Applicant' at the outset but thereafter argued and determined as the 2nd Interested Party's Application
Typographical date errors in the costs discussion: 'Notice of Motion dated 23rd November, 2019' and 'Notice of Motion dated 23rd November, 2009'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v National Environment Management Authority Ex parte Erdermann Property Ltd; National Environment Tribunal & 4 others (Interested Parties) [2021] KEELC 3974 (KLR)", Case Analysis (2021). Judicial Review Application arising from Nairobi Net No. 21 of 2019 (Machakos High Court Judicial Review). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3974/eng@2021-03-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.