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ELCAllowedTribunal Appeal No. 21 of 2019 (appeal arising from NET Appeal No. 21 of 2019, London Distillers (K) Limited v Erdermann Property Limited & Others)· [2021] KEELC 4189 (KLR)

Erdermann Property Limited v London Distillers (K) Ltd & another [2021] KEELC 4189 (KLR)

Environment and Land Court
25 February 2021
1,684 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Nairobi (Okong'o J) on a Notice of Motion dated 16th November 2020 by the 1st respondent, Pushpinder Singh Mann, seeking transfer of the appellant's appeal to the Environment and Land Court at Machakos. The appeal arose from a judgment of the National Environment Tribunal of 30th September 2020 in NET Appeal No. 21 of 2019 concerning the Environmental Impact Assessment Licence issued to London Distillers (K) Limited for the Great Wall Gardens Housing Phase 3 development on L.R No. 12581/13 at Athi River, Machakos County. Both parties appealed the same judgment: the appellant filed in Nairobi while the 1st respondent filed Civil Appeal No. EE007 of 2020 in Machakos. The appellant opposed transfer, arguing that NET sat in Nairobi, that the respondents' offices were in Nairobi, and that its appeal was filed first in time. The court held that venue depends on the applicable procedural law and the interest of justice, not party convenience. Section 12 of the Civil Procedure Act, which binds the court under section 19(2) of the Environment and Land Court Act, requires suits and appeals concerning rights in immovable property to be brought where the property is situated. NET's sitting in Nairobi was mere convenience and did not make it a Nairobi dispute. Transfer was also justified to avoid conflicting decisions, as related cases were pending in Machakos. The application was allowed in terms of prayer (b), with costs in the cause. Dated and delivered at Nairobi on 25th February 2021.

Key legal issues

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01

Applicability of section 12 of the Civil Procedure Act to appeals

Holding

Section 12 applies to appeals arising from suits concerning immovable property; such appeals must be filed where the property is situated.

Reasoning

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.

p. 2
02

Effect of NET sitting in Nairobi

Holding

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.

Reasoning

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.

p. 2
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Avoiding conflicting decisions

Holding

Transfer to Machakos was warranted so the appeal could be heard with the parallel appeal there, avoiding conflicting decisions.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The appeal is transferred to the Environment and Land Court at Machakos for hearing and final determination
  2. 2.Costs of the application shall be in the cause

Authorities

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Legislation

  • Civil Procedure ActSection 12, including section 12(d)
  • Environment and Land Court Act, 2011Sections 16 and 19(2)
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

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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, "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.