https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1290

Montessori Learning Centre (MLC) v Mathu (Chairman) & 2 Others (Jointly suing as and on behalf of Kyuna Neighbours Association (KNA)) & 2 others (Civil Appeal E015 of 2023) [2026] KECA 1290 (KLR) (10 July 2026) (Ruling) Neutral citation: [2026] KECA 1290 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal E015 of 2023 M Sila, JA July 10, 2026 Between Montessori Learning Centre (MLC) Appellant and Kimani Mathu (Chairman), Atul Shah (Vice Chairperson) and Chris Ndegwa (Secretary) Jointly suing as and on behalf of Kyuna Neighbours Association (KNA) 1st Respondent National Environment Management Authority 2nd Respondent Director General, Nairobi Metropolitan Services 3rd Respondent (Being an appeal against the entire ruling and order of the Environment and Land Court at Nairobi (O. A Angote, J.) delivered on 30 September 2022 in ELC No. E032 of 2022) Ruling 1.This dispute herein arises from issue of an EIA licence by the National Environment Management Authority (NEMA) to the appellant, Montesssori Learning Centre, allowing her to undertake construction on the Plot LR No. 7158/62 Kyuna, Nairobi. The Kyuna Neighbours Association (1st respondent) was aggrieved by issue of the EIA licence and she preferred an appeal to the National Environment Tribunal (the Tribunal). The Tribunal disallowed the appeal and the 1st respondent filed a further appeal to the Environment and Land Court (ELC) being Nairobi ELCA No. E032 of 2022. Upon filing that appeal at the ELC, the 1st respondent filed an application seeking stay of the decision of the Tribunal, and an injunction to stop the appellant from undertaking construction works, pending hearing and determination of the said appeal. What the appellant had proposed to construct was a school, and it was contended that the development was out of character with its surroundings, and therefore it was wrong for NEMA to grant the EIA licence. The application for injunction was allowed by the ELC, meaning that the decision of the tribunal was stayed, and an injunction was issued stopping the appellant from continuing with construction pending the appeal. Aggrieved, the appellant filed this appeal to challenge the said orders of the ELC. 2.Through a notice of withdrawal of appeal dated 2 March 2026, and said to be brought “pursuant to rule 70 of the Court of Appeal Rules” the appellant seeks to withdraw this appeal. It is said in the notice of withdrawal of appeal that the appeal has been overtaken by events as judgment before the ELC (on the appeal before it) was delivered on 20 May 2024. 3.The notice of withdrawal of appeal was listed for hearing on 14 May 2026 when Mr. Keaton, learned counsel, appeared for the appellant, and Mr. Lusi, learned counsel, appeared for the 1st respondent. There was no appearance on the part of the 2nd and 3rd respondents (respectively being NEMA and the Director General, Nairobi Metropolitan Services). Mr. Keaton submitted that the appellant wishes to withdraw the appeal as it has been overtaken by events. He acknowledged that the notice of withdrawal of appeal erroneously cited rule 70 of the Court of Appeal Rules and that the correct rule is rule 98. 4.Mr. Lusi, had no objection to the withdrawal of appeal but sought costs.He submitted that they were served with a 400 page record of appeal and had prepared to oppose the appeal. He further pointed out that they had filed a notice of preliminary objection dated 13 January 2023, for reason that the Court of Appeal has no jurisdiction to hear an appeal from the ELC arising from the ELC’s jurisdiction to hear appeals from decisions of the National Environment Tribunal. He further submitted that the appellant had filed an application under rule 5 (2) (b) of the Court of Appeal Rules, seeking stay orders, which they opposed and the same was dismissed, with the court commenting that it has no jurisdiction. He submitted that the appeal was thus bound to fail. 5.Mr. Keaton had a curious rejoinder, where he submitted that this appeal was withdrawn before Hon. Musumba, a Deputy Registrar of this court. I called for the record of the proceedings before Hon. Musumba and I have seen no order of withdrawal of this appeal made by the Deputy Registrar. Indeed, if there was such order, then it would have been superfluous to place the notice before a single Judge for consideration. 6.I have taken note of the submissions made. It is correct that when this court (Musinga, (P), Laibuta and Ngenye Macharia JJA) , considered the appellant’s rule 5 (2) (b) application, the court held that it had no jurisdiction (See Montessori Learning Centre (MLC) v Mathu & 2 others (All Jointly Suing as, and on Behalf of, Kyuna Neighbours Association - KNA) & 2 others (Civil Application E404 of 2022) [2023] KECA 145 (KLR) (17 February 2023) (Ruling)). This is how the court expressed itself :16.The provision in section 130(5) of EMCA is couched in mandatory terms and absolutely bars any appeal from the High Court to this court. The only interpretation of the language employed therein is that final adjudication of matters arising from NET rests with the High Court. Thus, the argument that this court has jurisdiction to entertain this application or an appeal by virtue of article 164 of the Constitution cannot clothe this court with the requisite jurisdiction. With due respect to Mr. Kiprono, the Constitution does not operate in a vacuum, it has to be read and interpreted in conjunction with other written laws. It is article 163(4) that has commanded the Court of Appeal to only hear appeals from ‘any other court or tribunal as prescribed by an Act of Parliament’. In turn, EMCA prescribes the limit of jurisdiction of the High Court. Suffice it to note that the ELC is of equal status with the High Court. And therefore, a mere reference only to the High Court at subsection (5) of section 130 of EMCA applies mutandis mutatis to ELC. In essence, article 164(3) (b) gives effect to section 130 (5) of EMCA and cannot be read in isolation.17.For the foregoing reason, we hold the view that this is an application doomed to fail. We have no jurisdiction to entertain it by virtue of section 130(1) and (5) of EMCA. We must down our tools at this juncture. The applicant has to contend with the decision of the ELC, which in any event was issued at an interlocutory stage as the appeal thereof is yet to be heard. The application is accordingly struck out with costs to the 1st respondent. 7.It is apparent from the foregoing, that the appeal was doomed to fail even if the appellant had proposed to proceed with the appeal. Probably if the appellant had been gracious enough to withdraw the appeal shortly after the ruling rejecting the rule 5 (2) (b) application, this court would have been much more sympathetic on the issue of costs. But the appellant waited three more years after the ruling, and waited until the appeal before the ELC was heard before acting to withdraw this appeal. No doubt, the presence of the appeal must have caused unnecessary anxiety to the 1st respondent and caused the 1st respondent to maintain counsel throughout that period. Having said that, at least the appellant still reserved a little grace and has opted to withdraw the appeal. In the circumstances herein, I will accept the withdrawal of the appeal under rule 98 of the Court of Appeal Rules, and not rule 70 which applies to criminal appeals. 8.However, the appellant shall shoulder 80% of the costs of the withdrawn appeal to the 1st respondent. There will be no orders as to costs between the appellant and the 2nd and 3rd respondents. DATED AND DELIVERED AT NAIROBI THIS 10TH DAY OF JULY, 2026.MUNYAO SILA……………………………JUDGE OF APPEALI certify that this is a true copy of the original.Signed.DEPUTY REGISTRAR