Mwangi v National Environmental Management Authority (NEMA) & 3 others (Environment and Land Petition E003 of 2025) [2025] KEELC 8017 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed it can hear challenges to the 2024 waste recycling regulations but cancelled the orders freezing them, citing forum shopping.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this court has jurisdiction to entertain the Petition and applications filed thereunder
- 2.Whether the Petition should be struck out for being sub judice
- 3.Whether the interim conservatory order issued on 15th July, 2025 ought to be set aside or vacated
Key legal issues
#Jurisdiction of the ELC over challenges to the EPR Regulations
The ELC has jurisdiction under Article 162(2)(b) and Section 13 of the ELC Act, since waste management is an environmental planning and protection matter
The Petition challenges the Sustainable Waste Management (Extended Producer Responsibility) Regulations, 2024, enacted by NEMA. Waste management and oversight thereof falls within environmental planning and protection under Section 13(2)(a) of the ELC Act, and the Petition falls within enforcement and protection of environmental rights under Articles 42, 69 and 70. The jurisdiction objection therefore fails.
Sub judice / striking out
The sub judice doctrine under Section 6 of the Civil Procedure Act did not apply because the previously instituted Nairobi petitions had been struck out for want of jurisdiction
Both prior petitions (Law Society of Kenya vs NEMA and Nzuki) were struck out by Justice Bahati Mwamuye on 10th September, 2025 on grounds that the High Court lacks jurisdiction under Article 165(5)(b). Since sub judice requires pending suits before courts of competent jurisdiction, and this is the only suit now pending on the issues, the application to strike out failed.
Setting aside of interim conservatory orders for non-disclosure and forum shopping
The conservatory orders issued on 15th July, 2025 were set aside because the Petitioner engaged in forum shopping and failed to disclose the parallel Nairobi petitions
Although the court accepted the Petitioner's claim of ignorance of the Nairobi petitions, it found glaring indicators of forum shopping: the petition was filed after jurisdictional objections were raised in Nairobi; the alleged violation arose in Nairobi where regulations were passed; all parties and the Petitioner's advocate are in Nairobi; and the Petitioner's own affidavits show a Nairobi address despite pleading an Eldoret home address. Non-disclosure strips a party of advantages gained.
Transfer of the Petition to ELC Nairobi
The court invoked its inherent power and Rule 8(2) of the Mutunga Rules to transfer the Petition to the ELC at Nairobi
Rule 8(2) permits transfer of a petition to another court of competent jurisdiction. Filing in Eldoret instead of Nairobi, where the cause of action arose and all parties are domiciled, breached the Petitioner's duty under Rules 3(4)-(6) to further the overriding objective of just, expeditious, proportionate and affordable resolution. Transfer ensures just and efficient hearing.
Legal principles established
#- Jurisdiction is everything; a court without jurisdiction cannot take any step in proceedings
- For the sub judice doctrine to apply, all suits must be pending before courts of competent jurisdiction
- A party who obtains interim orders through non-disclosure of material facts must be divested of any advantage gained
- A constitutional petition should be instituted in the court within whose jurisdiction the alleged violation took place
Court orders
#- 1.The conservatory orders granted by the court on 15th July, 2025 are set aside/discharged
- 2.The Petition is transferred for hearing and determination at the Environment and Land Court at Nairobi, to be placed before the Presiding Judge, Environment and Planning Division of the ELC thereat, for directions on the hearing of the Application dated 4th July, 2025 as well as the main Petition
- 3.Each party to bear their own costs of the applications
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution of Kenya, 2010; Section 13 of the Environment and Land Court Act
Relief refused
#Striking out of the Petition for being sub judice
The Nairobi petitions in which the same subject matter was pending had been struck out for want of jurisdiction, so there was no other suit pending before a court of competent jurisdiction
Dismissal of the Petition for want of jurisdiction under Article 162(2)(b)
Waste management falls within environmental planning and protection under Section 13 of the Environment and Land Court Act, so jurisdiction lies with the ELC
Costs
Given the nature of this Petition, each party shall bear their own costs of the applications herein.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly, I allow the 1st and 2nd Respondents' applications dated 31st July, 2025 and 8th August, 2025 respectively, and issue the following orders in respect thereto:
The conservatory orders granted by this Honourable Court on 15th July, 2025 are hereby set aside/discharged.
This Petition shall be and is hereby transferred for hearing and determination at the Environment and Land Court at Nairobi, and the same placed before the Presiding Judge, Environment and Planning Division of the ELC thereat for directions on the hearing of the Application dated 4th July, 2025 as well as the main Petition.
Given the nature of this Petition, each party shall bear their own costs of the applications herein.
The mere invocation of constitutional rights does not oust the jurisdiction of the ELC where the factual matrix remains environmental in nature.
It is perfectly well settled that a person who makes an ex parte application to the Court... is under an obligation to the Court to make the fullest possible disclosure of all material facts within his knowledge
Issues in the judgment
#The judgment dates the hearing of the initial application inconsistently, stating the conservatory orders were issued on 15th July, 2025 after recording that the application came up 'on 15th July, 2024'
The judgment gives inconsistent names for the second Nairobi petitioner ('Sollo Nzuki' and 'Solo Nzuki') and inconsistent case designations (HCCHR PET vs HCPT)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwangi v National Environmental Management Authority (NEMA) & 3 others (Environment and Land Petition E003 of 2025) [2025] KEELC 8017 (KLR)", Case Analysis (2025). Petition dated 4th July, 2025 (ELC Eldoret). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8017/eng@2025-11-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.