Kiagi v National Environment Tribunal; Seifert & another (Interested Parties)
The bottom line
#The Environment and Land Court ruled it cannot pause National Environment Tribunal cases—only hear appeals from them—so the stay request failed.
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 court has jurisdiction to stay proceedings before the National Environment Tribunal in NET Tribunal Appeal No. 51 of 2020 pending appeal
- 2.Whether the Interested Parties' preliminary objection is merited
Key legal issues
#Jurisdiction of the ELC to stay NET Tribunal proceedings
The court has no jurisdiction to stay proceedings before the NET Tribunal; it can only entertain appeals from the tribunal, and the Petition had already been struck out leaving nothing to anchor a stay
The court's jurisdiction flows from Article 162(2)(b) and Section 13 of the ELC Act, covering environment and land disputes and appeals from tribunals such as the NET under Section 129 of EMCA. Staying proceedings in another forum is not within that jurisdiction; stay can only be granted in respect of the court's own decision pending appeal to the Court of Appeal. The Petition had been struck out as sub judice, no appeal was filed, and the court was functus officio regarding the NET proceedings.
Validity of the preliminary objection
The preliminary objection was properly brought and raised a pure point of law, and was merited
Applying Mukisa Biscuits and Attorney General v Andrew Mwaura Githinji, the objection raised a pure point of law - lack of jurisdiction - requiring no ascertainment of facts or exercise of discretion. A preliminary objection may be raised at any time before final conclusion of the case. Since the objection succeeded on jurisdiction, the application for stay had to be dismissed.
Legal principles established
#- A court without jurisdiction must down its tools and cannot take any further step in the matter
- The ELC cannot stay proceedings before the NET Tribunal; it can only entertain appeals emanating from that tribunal
- Original jurisdiction is not an ouster clause; where a clear procedure for redress is prescribed it must be strictly followed
Court orders
#- 1.The preliminary objection is upheld
- 2.The application dated 13th February 2022 (for stay of execution pending appeal) is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act
Relief refused
#Stay of proceedings in NET Tribunal Appeal No. 51 of 2020 pending hearing of appeal
The court lacks jurisdiction to stay proceedings in another forum; the Petition had been struck out and no appeal was on file to anchor the stay
Costs
The application dated 13th February 2022 is dismissed with costs to the Interested Parties.
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.
I find that this court has no jurisdiction to stay proceeding in the NET Tribunal for the above reasons and can only entertain appeals emanating from the said tribunal. Consequently, I find that the preliminary objection is merited and I dismiss the application dated 13th February 2022 with costs. It is so ordered.
Jurisdiction is everything. Without it, a Court has no power to make one more step.
A party or litigant cannot be allowed to confer jurisdiction on a Court or oust jurisdiction of a competent organ through the art and craft of drafting pleadings.
This Petition was struck out for being sub judice and there is no reason for me to suspend matters at the tribunal as there is nothing before me in this matter.
Issues in the judgment
#Date of the application stated inconsistently
Interested party's name spelled inconsistently
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kiagi v National Environment Tribunal; Seifert & another (Interested Parties)", Case Analysis (2023). Environment and Land Petition 45 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20057/eng@2023-09-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.