Mbatia & another v National Environment Management Authority & 102 others (Environment and Land Appeal 34 of 2019) [2024] KEELC 6504 (KLR)
The bottom line
#Once you withdraw an appeal in Kenya, court orders issued while it was pending lapse, and you cannot use them to pursue contempt.
What this practically means
#Executive summary
#Key legal issues
#Sub judice - whether a parallel contempt application before the National Environment Tribunal bars this application
The plea of sub judice fails because the two applications concern contempt of different orders by different forums, each enforcing its own orders
Applying Section 6 of the Civil Procedure Act and the Supreme Court's guidance in the KNCHR Advisory Opinion, the court found that sub judice requires suits over the same subject matter. Here the Tribunal application concerned contempt of the Tribunal's orders of 24th September 2020, while this application concerned the ELC's orders of 19th June 2023. Each body would be enforcing its own orders, so no conflicting decisions could arise.
Functus officio and effect of withdrawal of the appeal on the court's jurisdiction to entertain contempt
The court lacks jurisdiction; upon withdrawal of the appeal, no substantive appeal or subsisting interim orders remained, and the Applicant's remedy lies before the Tribunal
The appeal was withdrawn on 31st October 2023, before the contempt Motion was filed on 21st December 2023. Distinguishing Beijing Industrial Designing and London Distillers, where withdrawals were refused because contempt applications were already pending, the court held that withdrawal here ended the suit. Interim orders issued pending hearing of the appeal ceased to have effect, so any determination of the Motion would be futile; the Applicant should pursue the pending Tribunal contempt application.
Legal principles established
#- Where an appeal is withdrawn, interim orders issued pending its hearing and determination lapse and the court becomes functus officio; contempt applications founded on such orders cannot be entertained
- Contempt applications relating to different orders (this Court's versus the Tribunal's) are not sub judice one another since each forum enforces its own orders
Court orders
#- 1.The Notice of Motion dated 21st December, 2023 is dismissed with no orders as to costs
- Jurisdiction invoked
- Section 5 of the Judicature Act and Section 29 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbatia & another v National Environment Management Authority & 102 others (Environment and Land Appeal 34 of 2019) [2024] KEELC 6504 (KLR)", Case Analysis (2024). Notice of Motion dated 21st December, 2023 (appeal pending before the Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6504/eng@2024-10-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.