Erdermann Property Limited v London Distillers (K) Ltd & another [2021] KEELC 4189 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Applicability of section 12 of the Civil Procedure Act to appeals
Section 12 applies to appeals arising from suits concerning immovable property; such appeals must be filed where the property is situated.
The court held that section 12(d) of the Civil Procedure Act requires suits seeking determination of any right to or interest in immovable property to be brought where the property lies. Counsel's argument that section 12 applied only to suits, not appeals, was rejected: an appeal can only be heard by an appellate court within whose jurisdiction the appeal arose.
Effect of NET sitting in Nairobi
NET's sitting in Nairobi was a matter of convenience only and did not make the appeal a Nairobi appeal; the proper venue was Machakos where the development was located.
NET has countrywide jurisdiction but sits in Nairobi mostly for convenience. Ideally, appeals arising outside Nairobi should be heard at their locations of origin. Since the appeal arose from a development project in Athi River, Machakos County, the fact that NET heard it in Nairobi did not make it a Nairobi dispute.
Avoiding conflicting decisions
Transfer to Machakos was warranted so the appeal could be heard with the parallel appeal there, avoiding conflicting decisions.
Both parties appealed the same NET judgment; the 1st respondent filed in the ELC Machakos while the appellant filed in Nairobi. Parallel related cases are pending at the High Court in Machakos. Transferring the appeal for joint hearing serves good order and efficient use of judicial resources.
Legal principles established
#- Suits and appeals concerning rights or interests in immovable property must be brought before the court within whose jurisdiction the property is situated, and an appeal must be determined where the underlying claim would have been brought.
- Venue of appellate proceedings does not depend on the convenience of the parties but on the applicable procedural law and the best interest of justice.
Court orders
#- 1.The appeal is transferred to the Environment and Land Court at Machakos for hearing and final determination
- 2.Costs of the application shall be in the cause
- On appeal from
- National Environment Tribunal
- NET Appeal No. 21 of 2019, London Distillers (K) Limited v Erdermann Property Limited & Others
- Jurisdiction invoked
- Section 16 of the Environment and Land Court Act, 2011; section 19(2) thereof binds the court to the Civil Procedure Act (section 12, Cap. 21)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Erdermann Property Limited v London Distillers (K) Ltd & another [2021] KEELC 4189 (KLR)", Case Analysis (2021). Tribunal Appeal No. 21 of 2019 (appeal arising from NET Appeal No. 21 of 2019, London Distillers (K) Limited v Erdermann Property Limited & Others). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4189/eng@2021-02-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.