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ELCDismissedPetition dated 29th July 2024

Gor & another v County Government of Homa-Bay & 8 others; County Director of Environment (Interested Party) (Petition E001 of 2024) [2025] KEELC 5041 (KLR)

Environment and Land Court
30 June 2025
8,505 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~34 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court dismissed a petition challenging Homabay's land lease because it was too vague to identify any actual constitutional violations.

What this practically means

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Executive summary

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The Petitioners filed a Petition dated 29th July 2024 challenging a deal between the County Government of Homabay and the County Pension Fund to construct the Governor's office on a five-acre parcel, Kanyada/Kanyabala/3537, alleging lack of County Assembly approval, absence of public participation, failure to follow change-of-user procedures, and breaches of Articles 10, 35, 40, 46, 47 and related provisions. They sought declarations, an order quashing the lease, restoration of the Araujo agricultural project, and each party to bear own costs. The 1st, 2nd, 3rd, 5th, 6th and 9th Respondents raised a Preliminary Objection contending the court lacked jurisdiction under sections 129 of EMCA, 9 of the Public Procurement and Asset Disposal Act and the Access to Information Act exhaustion requirements, and that the Petition disclosed no constitutional violations. The court, applying Mukisa Biscuit, held the EMCA and PPADA limbs of the objection failed since the Petition concerned neither licensing nor procurement. However, it found the Petition breached the Anarita Karimi Njeru precision threshold: it was vague, confused public and private property, alleged violations of Articles 24, 25, 48, 50 and 159 without any nexus, and disclosed no particulars of denial of information. The Preliminary Objection was allowed and the Petition dismissed with costs to the Respondents on 30th June 2025.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the court lacks jurisdiction by virtue of section 129 of the Environment Management and Coordination Act
  2. 2.Whether the court lacks jurisdiction by virtue of section 9 of the Public Procurement and Asset Disposal Act, 2015
  3. 3.Whether the Petitioners failed to exhaust the primary dispute resolution forums under sections 9, 11, 14 and 22 of the Access to Information Act
  4. 4.Whether the Petition fails to disclose constitutional violations and is incompetent, frivolous and an abuse of court process

Key legal issues

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01

Whether section 129 of EMCA ousts the court's jurisdiction

Holding

The Preliminary Objection on this ground failed because the dispute concerns alleged constitutional violations arising from the leasing and development of land, not NEMA licensing decisions appealable to the Tribunal

Reasoning

The court contrasted section 129(1) of EMCA, which confines Tribunal appeals to licence and environmental order decisions, with section 13(1) of the Environment and Land Court Act conferring original jurisdiction over environment and land disputes. The Petition sought relief over the building of the Governor's office on Kanyada/Kanyabala/3537 and attendant rights threats, not the grant or refusal of a licence, so the Tribunal was not the appropriate forum.

p. 12
02

Whether section 9 of the Public Procurement and Asset Disposal Act ousts jurisdiction

Holding

This limb also failed because the Petition disclosed no procurement activity within the Authority's mandate

Reasoning

Section 9 lists the functions of the Public Procurement Regulatory Authority over procurement planning, processing, asset management, disposal and contract management. The court found nothing about procurement in the Petition; it referred only to a 'lease 2023' and a Bill. Without a procurement matter, the statutory forum under the PPADA was not implicated.

p. 13
03

Whether the Petitioners failed to exhaust remedies under the Access to Information Act

Holding

The objection would have succeeded only to the extent of failure to show any violation regarding disclosure of information, since Article 35 was merely mentioned in the prayers without particulars

Reasoning

Sections 9, 11, 14 and 22 of the Access to Information Act channel information complaints to the Commission on Administrative Justice. The court found the Petitioners never disclosed that they sought information and were refused, and no Article 35 violation was pleaded in the body of the Petition. The objection therefore succeeded only on that narrow ground.

p. 13
04

Whether the Petition discloses constitutional violations

Holding

The Petition did not meet the Anarita Karimi Njeru threshold; it was vague, imprecise and disclosed no constitutional violations, so the Preliminary Objection was allowed and the Petition dismissed

Reasoning

Applying Anarita Karimi Njeru and Mumo Matemo, the court found the Petition oscillated between a 'lease 2023', a 'lease' and a 'bill', pleaded no nexus between the lease and Articles 24, 25, 48, 50 and 159, confused private property protections under Article 40 with public property, and gave no particulars of the alleged absence of public participation. It was 'a grope in darkness' incapable of determination.

p. 16

Legal principles established

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  • A preliminary objection arises on a point of law only; factual matters or matters requiring the exercise of judicial discretion do not qualify
  • The National Environment Tribunal's jurisdiction under section 129 of EMCA is limited to licensing matters and does not extend to constitutional petitions alleging environmental rights violations
  • A constitutional petition must be pleaded with precision, identifying the provisions infringed and the manner of infringement, per the Anarita Karimi Njeru standard

Court orders

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  1. 1.The Preliminary Objection is allowed
  2. 2.The Petition dated 29th July 2024 is dismissed with costs to the Respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13(1) of the Environment and Land Court Act

Relief refused

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Declaration on inherent natural law and constitutional limitations on political arms of government imposing land leases

The Petition was dismissed for failing to disclose any constitutional violations

p. 16

Declaration that failure to publicise the land lease contravenes Articles 10, 35, 44, 47 and 201 of the Constitution

The Petition was not pleaded with precision and no violations were disclosed

Order quashing the lease agreement between the Government of Homabay and the County Pension Scheme

Petition dismissed in its entirety

Order compelling Respondents to restore the Araujo project to agricultural use with costs borne by the Governor personally

Petition dismissed in its entirety

Costs

The Petition dated 29th July 2024 is dismissed with costs to the Respondents

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the premises, the Preliminary Objection is merited as the Petition does not disclose any constitutional violations. The Preliminary Objection is allowed. The Petition dated 29th July 2024 are dismissed with costs to the Respondents.
p. 16Final orders - dismissal of the Petition
It is evident that the dispute is not related to matters under the jurisdiction of the National Environment Tribunal, more so under section 129 of the Environment Management and Coordination Act.
EMCA section 129 does not oust ELC jurisdiction over constitutional petitions
a perusal of the Petition reveals that there are no constitutional issues this court is capable of determining raised in the Petition.
Failure to disclose constitutional violations
It is clear that a preliminary objection arises on a point of law only. Any factual point and matter that requires long drawn out argument to establish other than the law falls short of a preliminary objection.
p. 11Definition and scope of a preliminary objection

Issues in the judgment

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minor

The judgment misdescribes itself as a 'ruling' although it disposes of the Petition

minor

The judgment contains contradictory drafting references, referring to a Notice of motion dated 29th July 2024 and incorrectly dating supplementary statutory provisions

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, "Gor & another v County Government of Homa-Bay & 8 others; County Director of Environment (Interested Party) (Petition E001 of 2024) [2025] KEELC 5041 (KLR)", Case Analysis (2025). Petition dated 29th July 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5041/eng@2025-06-30

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