Montessori Learning Centre (MLC) v Kimani Mathu,Chairman & 2 others; National Environment Management Authority & 2 others (Interested Parties) [2022] KEELC 1319 (KLR)
The bottom line
#The Environment and Land Court dismissed a bid to pause Tribunal orders, ruling the appellant must finish the Tribunal process before going to court.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection on sub judice and lack of jurisdiction was a pure point of law
Yes - applying Mukisa Biscuits, the objection raised a pure point of law and was upheld
The court adopted the Mukisa Biscuits definition of a preliminary objection as a pure point of law argued on the assumption that all facts pleaded by the other side are correct. The Respondent's objection that the appeal and application re-litigated issues pending before the Tribunal under Section 6 of the Civil Procedure Act required no ascertainment of disputed facts, and the substance of the claim confirmed overlap.
Whether the appeal and application were sub judice NET Appeal 10 of 2021
The substance of the appeal sought to determine whether the Tribunal exceeded its jurisdiction in applying the Section 129(4) stop order - the same issues were pending before the Tribunal
Section 6 of the Civil Procedure Act bars trial of any matter directly and substantially in issue in previously instituted proceedings between the same parties. The Appellant had filed a reply and a preliminary objection in the Tribunal challenging its jurisdiction and the stop order. Applying the substance-over-prayers test, the court held the identical issues ought to be determined first by the Tribunal.
Whether the Tribunal erred in granting automatic status quo orders under Section 129(4) EMCA
The Tribunal did not err; Section 129(4) permits status quo orders upon application by any party, and the appeal was properly before the Tribunal
The court reproduced Section 129(4) EMCA, which empowers the Tribunal, upon application by any party, to issue orders maintaining the status quo of any matter or activity which is the subject of the appeal until the appeal is determined. The Appellant's argument that the provision abolished automatic status quo orders did not avail it; the court found the orders properly granted and directed the Appellant to exhaust the Tribunal proceedings.
Exhaustion of alternative dispute resolution mechanisms before the High Court
The Appellant must first exhaust the proceedings before the Tribunal before approaching the court
Relying on Mutanga Tea & Coffee Co Ltd v Shikara Ltd and Speaker of the National Assembly v Karume, the court held that where a clear procedure for redress of a grievance is prescribed by an Act of Parliament, that procedure should be followed. The Tribunal ought to be allowed to consider the objection on jurisdiction and the statutory stop order in its original jurisdiction before the Appellant can approach the court.
Legal principles established
#- Where there is a clear procedure for redress prescribed by the Constitution or an Act of Parliament, that procedure should be followed (exhaustion doctrine)
- In determining whether sub judice applies, it is the substance of the claim that is examined rather than the prayers sought
- Section 129(4) EMCA permits the Tribunal to issue status quo orders only upon application by a party, and the Tribunal did not err in granting status quo orders pending the appeal
Court orders
#- 1.The preliminary objection is upheld
- 2.The notice of motion dated 23rd July 2021 is dismissed
- 3.Each party to bear own costs
- On appeal from
- National Environment Tribunal
- NET Appeal 10 of 2021
- Jurisdiction invoked
- Section 130(1) of the Environmental Management and Co-ordination Act (appeal from the National Environment Tribunal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Montessori Learning Centre (MLC) v Kimani Mathu,Chairman & 2 others; National Environment Management Authority & 2 others (Interested Parties) [2022] KEELC 1319 (KLR)", Case Analysis (2022). Tribunal Appeal No. NET 10 of 2021 (appeal from National Environment Tribunal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1319/eng@2022-02-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.