Chiggai (Suing as the appointed Attorney of Timothy Shakhalaka Eric Jirongo) & another v Cabinet Secretary, Ministry of Mining, Blue Economy and Maritime Affairs & 5 others (Environment and Planning Petition E001 of 2026) [2026] KEELC 5185 (KLR)
The bottom line
#Kenya's Environment and Land Court at Kakamega has halted all mining and blasting in Lugari until a lawsuit over the quarry operations is fully heard.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the preliminary objections dated 23rd June 2026 and 24th June 2026 raise pure points of law capable of determination as preliminary objections
- 2.Whether the preliminary objections are merited
- 3.Whether the court has jurisdiction to entertain the petition in light of the doctrines of constitutional avoidance and exhaustion
- 4.Whether the petition has met the threshold for a constitutional petition
- 5.Whether the Petition and the Notice of Motion dated 25th May 2026 are sub judice and res judicata
- 6.Whether the petitioners have locus standi to bring the petition
- 7.Whether the petitioners have met the legal threshold for the grant of conservatory orders pending the hearing and determination of the petition
- 8.Who should bear the costs of the application and the preliminary objections
Key legal issues
#Whether the preliminary objections raised pure points of law
Only the 4th respondent's jurisdictional ground (constitutional avoidance/exhaustion) qualified; the rest involved contested facts and were dismissed
Applying Mukisa Biscuit and Oraro v Mbaja, a preliminary objection must be a pure point of law argued on assumed facts. The pleas of res judicata, sub judice, the validity of the power of attorney and the donor's capacity required ascertainment of disputed facts and evidence, and could not be determined preliminarily. The 2nd interested party's jurisdictional ground was vague and unanchored in law.
Jurisdiction, constitutional avoidance and exhaustion
The court has jurisdiction; the exemption from exhaustion was proper because the petition raises constitutional questions transcending the administrative mandate
The court held that although the exemption was granted ex parte and could be revisited at the inter partes stage, the dispute alleges constitutional violations of Articles 40, 42, 47, 69 and 70 which the Mining Act and EMCA mechanisms (NET, Cabinet Secretary) cannot resolve. Relying on Abidha Nicholas and Base Titanium, the ELC's original jurisdiction under Articles 70 and 162(2)(b) and section 13(3) ELC Act is not ousted by the exhaustion principle.
Threshold of a constitutional petition
The petition met the threshold, pleading with precision the acts, provisions violated and manner of violation
Under Rule 10 of the Mutunga Rules and the Anarita Karimi Njeru principle as restated in Communications Commission of Kenya and Mumo Matemu, a petitioner must state with reasonable precision the acts complained of, the constitutional provisions violated and the manner of violation. The court found the petitioners had done so.
Sub judice and res judicata
The petition is neither sub judice nor res judicata vis-a-vis Kakamega ELC No. E086 of 2025/2026
The earlier suit concerns private law claims over subdivision and transfer of titles from Kakamega/Lugari/965; the 1st to 3rd respondents are not parties there, and the constitutional questions in this petition do not arise in it. No determined former suit was proved, so res judicata under section 7 of the Civil Procedure Act fails.
Locus standi
The petitioners have locus standi under Articles 22, 70 and 258 of the Constitution
Article 70 requires no demonstration of personal loss or injury, only a threat to the environmental right; Article 22(2) and 258(2) permit suits by persons acting on behalf of others, groups or in the public interest. Capacity of the donor of the power of attorney is a factual question unsuitable for preliminary determination.
Conservatory orders
A prima facie case, irreparable harm and public interest were established; conservatory orders issued against the 4th respondent and the 1st respondent
The unchallenged engineer's report, uncontroverted absence of a mining licence, and lifting of stoppage orders on policy (Affordable Housing) rather than compliance grounds established a prima facie case. The precautionary principle in section 3(5)(f) EMCA applies. Prayers for enforcement of stoppage orders and a NEMA closure order were declined as legally unavailable on the material.
Legal principles established
#- Where a dispute relates to violation of constitutional rights to environment or land, the ELC's original jurisdiction is not ousted by the exhaustion principle
- Res judicata and sub judice pleas founded on contested evidence must be raised by notice of motion supported by affidavit, not by preliminary objection
- Lack of full scientific certainty is no reason to postpone cost-effective measures to prevent environmental degradation (precautionary principle)
Court orders
#- 1.Conservatory order restraining the 4th respondent, its agents, servants, employees, contractors, directors, shareholders or any person acting under its authority, from conducting any mining, blasting, excavation, quarrying or related operations on any parcel derived from or traceable to Kakamega/Lugari/965, on the named settlement parcels, and within 500 metres of any structure on those parcels, pending the hearing and determination of the petition
- 2.Conservatory order prohibiting the 1st respondent from issuing any mining licence, permit or other form of authorization to the 4th respondent or any other person in respect of any parcel derived from or traceable to Kakamega/Lugari/965, pending the hearing and determination of the petition
- 3.Costs of the application to be borne by the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 70, 162(2)(b), 165(3)(b) and 165(5)(b) of the Constitution as read with Section 13(3) of the Environment and Land Court Act No. 19 of 2011
Relief refused
#Conservatory order directing the 1st respondent to enforce its stoppage orders
Enforcement of the 1st respondent's stoppage orders is a matter for the court, not the 1st respondent, under section 156(5) of the Mining Act
Conservatory order directing the 3rd respondent to issue and maintain an immediate closure order under Section 117(3)(f) of EMCA
No inspection has been done and no specific remedial measures have been recommended to warrant the order
Costs
THAT the costs of this application shall be borne by the respondents.
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.
THAT pending the hearing and determination of the petition herein, this Honorable Court hereby issues a conservatory order restraining the 4th respondent, its agents, servants, employees, contractors, directors, shareholders, or any person acting under its authority, from conducting any mining, blasting, excavation, quarrying, or any other related operations
THAT pending the hearing and determination of the petition herein, this Honorable Court hereby issues a conservatory order prohibiting the 1st respondent from issuing any mining license, permit, or any other form of authorization to the 4th Respondent
this court's original jurisdiction to hear and determine such disputes is not ousted by the exhaustion principle.
where there are threats of damage to the environment, whether serious or irreversible, lack of full scientific certainty shall not be used as a reason for postponing cost effective measures to prevent environmental degradation.
pleas of res judicata and sub judice based on contested evidence like in this case, ought not to be raised through a preliminary objection but ought to be raised by notice of motion supported by affidavit
A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct.
THAT the costs of this application shall be borne by the respondents.
Issues in the judgment
#Inconsistent case number for the alleged earlier suit: the preliminary objections and submissions variously refer to Kakamega ELC No. E086 of 2025 and No. E086 of 2026
The judgment mislabels the 2nd interested party as the '1st interested party' when rejecting its preliminary objection
NEMA Improvement Notice date inconsistently given as 29th October 2024 and 29th April 2025
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chiggai (Suing as the appointed Attorney of Timothy Shakhalaka Eric Jirongo) & another v Cabinet Secretary, Ministry of Mining, Blue Economy and Maritime Affairs & 5 others (Environment and Planning Petition E001 of 2026) [2026] KEELC 5185 (KLR)", Case Analysis (2026). ELC Petition (Kakamega) with Notice of Motion dated 25th May 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5185/eng@2026-07-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.