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ELCDismissedMemorandum of Appeal dated 23rd December, 2025 (appeal against Hon. Winnie Tsuma's ruling in National Environment Tribunal Appeal No. E005 of 2025); Ruling on Notice of Motion dated 15th January, 2026· [2026] KEELC 1672 (KLR)

Rotich v Director General National Environment Management Authority & another (Environment and Planning Appeal E002 of 2025) [2026] KEELC 1672 (KLR)

Environment and Land Court
19 March 2026
8,360 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a ruling by the Environment and Land Court at Kericho (L.A. Omollo, J) on the 2nd Respondent/Applicant's Notice of Motion dated 15th January, 2026 seeking discharge or setting aside of the ex parte status quo orders the Court issued on 5th January, 2026 pending the hearing of an appeal against the National Environment Tribunal's ruling of 25th November, 2025 in NET Appeal No. E005 of 2025, which dismissed the Appellant's challenge on jurisdiction. The applicant argued the orders were procured by concealment of material facts, that the Tribunal ruling was a negative order incapable of being stayed, that the telecommunications tower on Plot No. Kericho/Chemoiben/457 was fully constructed, and that the Appellant should have sought an Erinford injunction instead. The Appellant countered that the orders were regularly issued under Section 130(2) EMCA, that he concealed nothing, and sought demolition, suspension of operations and contempt citations against the Respondents' directors. The Court held, citing Thugi River Estate and Palm Homes, that status quo orders preserve the existing state of affairs and that its orders of 5th January, 2026 were issued as a case management tool and to preserve the subject matter, pending inter partes hearing of the Appellant's application dated 23rd December, 2025 - not pending the appeal - so the applicant had misapprehended them. Questions of negative orders, non-disclosure and completion of construction were deferred to that pending application. The Court declined to entertain the Appellant's substantive prayers in his Replying Affidavit and submissions, holding that submissions cannot introduce new issues and that his pending Tribunal contempt application should be prosecuted. The application was dismissed with costs and the status quo orders maintained until the 23rd December, 2025 application is determined.

Key legal issues

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01

Nature of the status quo orders issued on 5th January, 2026

Holding

The orders were issued by the Court of its own motion as a case management tool and to preserve the subject matter, under Practice Direction 28(k), and were expressly tied to the inter partes hearing of the application dated 23rd December, 2025, not to the determination of the appeal

Reasoning

The Court traced its 5th January 2026 directions, noting the Tribunal had granted a 30-day stay pending filing of the appeal, and ordered status quo until the inter partes hearing with liberty to apply for extension or vacation. Citing Thugi River Estate and Sabatia Farmers/Palm Homes, the Court held status quo orders preserve the existing state of affairs; here the applicant misunderstood their scope and duration.

p. 15
02

Whether alleged non-disclosure of material facts warranted setting aside the ex parte status quo orders

Holding

No - the alleged non-disclosure (regularity of approvals, whether the Tribunal's ruling was a negative order, completion of the mast) raised disputed questions best addressed at the inter partes hearing of the application dated 23rd December, 2025

Reasoning

The Court accepted the framework that material non-disclosure can ground discharge of an ex parte order, but held that whether the Tribunal's ruling was a negative order and whether construction was complete were matters for the pending application dated 23rd December 2025, which remained unheard. It therefore deferred all such determinations rather than discharging its own case-management orders.

p. 17
03

Whether the Appellant was entitled to substantive orders (demolition, suspension of operations, contempt citations) via replying affidavit and submissions

Holding

No - such substantive prayers cannot be introduced through a Replying Affidavit or submissions; new issues in submissions are best ignored, and the pending contempt application before the Tribunal should be prosecuted

Reasoning

The Court noted that the Appellant had already filed a contempt application before the Tribunal on 10th December 2025 over resumption of construction, which remained pending. Citing Kimani v Wangora and Badri v Mbarak, it held submissions are marketing language, not pleadings, and cannot introduce new issues; the Appellant was directed to pursue remedies in the proper forum.

p. 18
04

Relevance of Section 130(2) EMCA to the pending stay application

Holding

Section 130(2) EMCA, providing that no Tribunal decision shall be enforced until the appeal time expires or the appeal is determined, will aid the Court in determining the still-pending application dated 23rd December, 2025

Reasoning

The Court reproduced Section 130(2) and observed that the application dated 23rd December 2025 seeks, among other orders, stay of enforcement of the Tribunal's ruling of 25th November 2025. It did not finally construe the provision, deferring that exercise to the inter partes hearing of that application.

p. 18

Legal principles established

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  • Status quo orders preserve the existing state of affairs as at the date the order is made; where issued as a case management tool they must be read according to their purpose and the date they were made
  • A party seeking to set aside or discharge an ex parte order must demonstrate sufficient reason for the Court to exercise its discretion in its favour, and material non-disclosure is a valid ground for discharging an ex parte order (submitted by the applicant and not accepted on these facts)
  • Submissions are not pleadings; new issues raised by way of submissions or in a replying affidavit are best ignored
  • Costs follow the event under Section 27 of the Civil Procedure Act

Court orders

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  1. 1.The 2nd Respondent/Applicant's Notice of Motion dated 15th January, 2026 is dismissed with costs
  2. 2.The status quo orders issued by the Court on 5th January, 2026 remain in force until the application dated 23rd December, 2025 is heard and determined on its merit
On appeal from
National Environment Tribunal
NET Appeal No. E005 of 2025
Jurisdiction invoked
Appellate jurisdiction over the National Environment Tribunal under the Environmental Management and Co-ordination Act (EMCA); interim relief invoked under Article 159(2) of the Constitution, Order 51 Rule 15 and Order 40 Rule 7 of the Civil Procedure Rules

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, "Rotich v Director General National Environment Management Authority & another (Environment and Planning Appeal E002 of 2025) [2026] KEELC 1672 (KLR)", Case Analysis (2026). Memorandum of Appeal dated 23rd December, 2025 (appeal against Hon. Winnie Tsuma's ruling in National Environment Tribunal Appeal No. E005 of 2025); Ruling on Notice of Motion dated 15th January, 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1672/eng@2026-03-19

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