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ELCPartially AllowedNot stated in the judgment (Petition with Notice of Motion dated 26th September 2024)· [2025] KEELC 5026 (KLR)

Nicholus v Attorney General & 7 others; National Environmental Complaints Committee (NECC) & 5 others (Interested Parties) (Petition 2 of 2021) [2025] KEELC 5026 (KLR)

Environment and Land Court
7 July 2025
3,439 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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The Siaya Environment and Land Court ordered regulators to release a water quality report and allowed a site visit, but refused to summon Cabinet Secretaries prematurely.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Siaya (A.E. Dena, J) determines a Notice of Motion dated 26th September 2024 filed by the Petitioner in an ongoing environmental petition concerning alleged illegal mining by the 2nd and 3rd Respondents in Ramba Area, Rarieda Sub-County. The Petitioner sought three principal orders: that the 1st Interested Party (NECC) avail the water quality analysis report recommended in its site-visit report of 4th November 2020; that the court conduct a site visit with security provided by the 7th Respondent; and that the Attorney General and the Cabinet Secretaries for Mining & Blue Economy and for Environment be summoned to explain their condonation of illegal mining and the whereabouts of extracted minerals. The 3rd Interested Party supported the application, invoking the precautionary principle and alleged dereliction of statutory duty by State organs. The 2nd and 3rd Respondents opposed, contending prematurity since the legality of their activities was undetermined. The court found the water quality report central to the proceedings and that the Petitioner, as originator of the NECC complaint, had a legitimate expectation it would be availed; it ordered its production within 21 days. It ordered a site visit in principle, leaving timing and logistics to the parties and further directions. It declined the summons against the Attorney General and Cabinet Secretaries as premature, noting delegation of day-to-day ministerial functions and that illegality was a substantive issue for the petition. The application partly succeeded with costs in the cause.

Key legal issues

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01

Whether the 1st Interested Party should be ordered to avail the water quality analysis report recommended in its report of 4th November 2020

Holding

Allowed - the report is important to the proceedings and the petitioner had a legitimate expectation it would be availed; the court sees no hindrance in allowing the prayer

Reasoning

NECC's report recommended that the Water Resources Management Authority monitor water quality, and a water analysis report was awaited. No further affidavit from NECC produced the report. The court held the report cannot be wished away and, focusing on substantive justice in a petition, allowed the prayer with a 21-day deadline.

p. 5
02

Whether the court should order a site visit with security provided

Holding

Allowed in principle - a site visit is welcome and prejudices no one, but the timing/stage is left to the parties to agree at the pretrial conference

Reasoning

The court's jurisdiction to order a site visit under Order 18 Rule 11 is not in doubt, and Ayoyih v Muhanji confirms site visits are an occasion to receive evidence. The court found the visit illuminating and prejudicial to no one, deferring timing and security logistics to the pretrial conference.

p. 6
03

Whether the Attorney General and the Cabinet Secretaries should be summoned to explain condoning of illegal mining and the whereabouts of minerals and proceeds

Holding

Declined - premature and unnecessary at this stage; illegality is a substantive issue awaiting determination, and day-to-day ministry functions rest with delegated officers, not Cabinet Secretaries in person

Reasoning

The court held that governance structures delegate day-to-day responsibilities to Chief Executive Officers rather than Cabinet Secretaries. Determination of illegality of the respondents' activities is a substantive issue in the petition, and mandamus for mining records had already been sought; summoning them now would jump the gun and breach fair-hearing entitlements on both sides.

p. 7

Legal principles established

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  • A petitioner who originated a complaint that necessitated investigations has a legitimate expectation that the resulting report will be availed to the court
  • In a petition, the court focuses on substantive justice rather than procedural technicalities
  • The court's power to order a site visit is not in doubt, deriving from Order 18 Rule 11

Court orders

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  1. 1.That the 1st Interested Party to avail the report on water quality analysis recommended in their report of 4th November, 2020
  2. 2.That the above report shall be availed within 21 days of today's date
  3. 3.That an order hereby issues for a site visit, further directions to be issued
  4. 4.Prayer No. 3 of the application (summons to the Attorney General and the Cabinet Secretaries) is declined
  5. 5.Costs shall be in the cause
Jurisdiction invoked
Articles 50 and 159(2)(d) of the Constitution; Sections 1A, 1B and 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, "Nicholus v Attorney General & 7 others; National Environmental Complaints Committee (NECC) & 5 others (Interested Parties) (Petition 2 of 2021) [2025] KEELC 5026 (KLR)", Case Analysis (2025). Not stated in the judgment (Petition with Notice of Motion dated 26th September 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5026/eng@2025-07-07

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