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ELCStruck OutELC Appeal (Mombasa) - application dated 19th April 2024 arising from appeal against NET Appeal No. 43 of 2022· [2024] KEELC 4802 (KLR)

Bayusuf & 2 others v Marble Inn Developers Limited & another (Environment & Planning Appeal E003 of 2024) [2024] KEELC 4802 (KLR)

Environment and Land Court
19 June 2024
2,965 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Mombasa Environment and Land Court struck out the Bayusuf group's injunction application because their new lawyers never formally took over the case file.

What this practically means

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Executive summary

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The appellants moved the Environment and Land Court at Mombasa by an application dated 19 April 2024 seeking a temporary injunction restraining the 1st respondent from continuing construction of a nine-storey building on MN/Block 1/7812/2 pending the hearing of their appeal against a National Environment Tribunal judgment of 21 December 2023, and orders compelling the 2nd respondent (NEMA) to enforce compliance. The appeal challenged the tribunal's dismissal of NET Appeal No. 43 of 2022, in which the tribunal found there was sufficient public participation before the impugned EIA licence was issued and held that zoning and development-control grounds fell outside its jurisdiction, being the preserve of the County Physical and Land Use Planning Liaison Committee under the Physical and Land Use Planning Act. The 1st respondent opposed the application, arguing among other things that it offended Order 9 Rule 9 of the Civil Procedure Rules because Githuku & Githuku Advocates LLP came on record after judgment without leave or consent, and that the 2nd to 4th appellants had withdrawn their tribunal appeal. The court framed two issues: whether the threshold for an interlocutory injunction was met, and costs. Although the court observed that the neighbourhood already contains similar multi-storey buildings and that it would have considered a conditional injunction requiring the appellants to deposit security for costs, it found that the application had been drawn, filed and prosecuted by counsel not properly on record in breach of the mandatory Order 9 Rule 9. The application was accordingly struck out, with costs awarded to the 1st respondent. Questions of party status and the substantive appeal remain for the full hearing.

Key legal issues

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01

Whether the interlocutory injunction pending appeal should issue

Holding

The application was struck out for non-compliance with Order 9 Rule 9, so the merits of the injunction were not determined, though the court noted it would otherwise have considered a conditional injunction secured by deposit as security for costs

Reasoning

The court observed from photographs that the area contains other multi-storey buildings of similar size, some belonging to the appellants. The 1st respondent's building was at the last stages of structural development and stopping it would attract penalties and financial loss. Had the application been properly before the court, the court would have required the appellants to deposit security in an interest-earning account before granting a conditional injunction.

p. 6
02

Whether counsel not properly on record could prosecute the application

Holding

Githuku & Githuku Advocates LLP came on record after judgment without consent of the outgoing advocate or a court order, breaching the mandatory Order 9 Rule 9, rendering the application liable to be struck out

Reasoning

The tribunal record showed Ms. John Bwire & Associates as counsel on record for the appellants. Githuku & Githuku Advocates LLP filed the application after the tribunal's judgment of 21 December 2023 without any consent or prayer to come on record. The mandatory requirements of Order 9 Rule 9 had not been met, so the application drawn, filed and prosecuted by that firm was struck out.

p. 5
03

Whether the 2nd to 4th appellants remained parties after withdrawing their tribunal appeal

Holding

A determination on their status would not affect the outcome of the application, as the court decides between the parties actually before it; the question is reserved for the hearing of the appeal, particularly on costs

Reasoning

The court held that resolving whether the 2nd to 4th appellants withdrew their appeals before the tribunal would not change the result of the application. The 1st respondent was at liberty to pursue the issue during the hearing of the appeal where the determination would be relevant on matters of costs.

p. 6

Legal principles established

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  • Where a party changes advocates after judgment has been passed, the incoming advocate must comply with Order 9 Rule 9 of the Civil Procedure Rules, failing which proceedings filed by that advocate are liable to be struck out
  • Costs follow the event under section 27 of the Civil Procedure Act unless otherwise directed for good cause

Court orders

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  1. 1.The appellants' application dated the 19th April 2024 is hereby struck out.
  2. 2.The appellants will pay the 1st respondent's costs in the application.

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 40, 42, 47, 69 & 70
  • Environment and Land Court Act No. 19 of 2011Section 13
  • Civil Procedure Act (Cap. 21)Sections 1A, 1B, 3A, 63(e), 27, 79B
  • Civil Procedure RulesOrder 9 Rules 9 & 10; Order 40 Rule 1; Order 40 Rule 6(6) (as Order 41 rule 6(6)); Order 42 Rule 11; Order 51 Rules 1 & 4
  • Environmental Management and Co-ordination Act (EMCA), 1999Sections 129, 130
  • Physical and Land Use Planning ActSections 78, 79, 80
  • Environment (Impact Assessment and Audit) RegulationsRegulations 7, 17, 21

Cases cited (1)

  • Registered Trustees, Kenya Railways Staff Retirement Benefits Scheme v Millimo, Muthomi & Co. Advocates & 2 others
    (Civil Appeal (Application) E383 of 2021) KECA 491 (KLR)
On appeal from
National Environment Tribunal
NET Appeal No. 43 of 2022
Jurisdiction invoked
Section 13 of the Environment and Land Court Act (appeal under section 129 of EMCA, 1999); interim relief sought under Order 40 Rule 1 and section 3A of the Civil Procedure Act

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, "Bayusuf & 2 others v Marble Inn Developers Limited & another (Environment & Planning Appeal E003 of 2024) [2024] KEELC 4802 (KLR)", Case Analysis (2024). ELC Appeal (Mombasa) - application dated 19th April 2024 arising from appeal against NET Appeal No. 43 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4802/eng@2024-06-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.