Wilson Kirungo Njenga & 2 others v S.S. Mehta & Sons Ltd & 3 others
The bottom line
#Kenya's Environment and Land Court ruled you cannot be forced to exhaust an appeal route that doesn't exist yet, so the quarry dispute proceeds to full hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the doctrine of exhaustion barred the ELC's jurisdiction
No - NET's jurisdiction under Section 129 EMCA is appellate and was not triggered because no EIA licence existed when the suit was filed, so there was no statutory remedy to exhaust; constitutional claims under Articles 42, 69 and 70 also permitted direct recourse.
Section 129 EMCA confers appellate jurisdiction on NET triggered only by a concrete NEMA decision. At filing on 17th April 2026 no EIA licence had been issued, so no remedy existed to exhaust. The court also held jurisdiction vests at filing and cannot be defeated by licences procured mid-litigation, and that preventative constitutional claims under Articles 42 and 70 allow direct access to the ELC.
Whether the preliminary objection was sustainable as a pure point of law
No - it depended on disputed facts (existence of an EIA licence at filing) and on factual inquiry into exceptions to exhaustion, breaching the Mukisa Biscuit rule.
Applying Mukisa Biscuit and the Supreme Court's decision in IEBC v Cheperenger, the court held that a preliminary objection must assume pleaded facts correct and raise a pure point of law. Whether an EIA licence existed at filing and whether plaintiffs fell within exhaustion exceptions required evidence, so the objection was procedurally incompetent and could not be determined preliminarily.
Legal principles established
#- A litigant cannot be required to exhaust a statutory remedy that does not exist; NET's jurisdiction under Section 129 EMCA is appellate and triggered only by an existing NEMA decision.
- Jurisdiction of a court is established at the time proceedings are filed and cannot be retrospectively divested by post-filing administrative approvals.
- The doctrine of exhaustion is not absolute where the statutory remedy is unavailable or where primary constitutional questions are raised.
- A preliminary objection fails under Mukisa Biscuit where the underlying facts, such as the existence of an appealable decision at filing, are disputed.
Court orders
#- 1.Dismissal of the 1st Defendant's Notice of Preliminary Objection dated 2nd June 2026 as procedurally incompetent
- 2.Direction that the jurisdictional issue be determined alongside the main suit upon submission of evidence
- 3.Costs of the Preliminary Objection awarded to the Plaintiffs
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act; suit instituted under Articles 42, 69 and 70 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wilson Kirungo Njenga & 2 others v S.S. Mehta & Sons Ltd & 3 others", Case Analysis (2026). ELC Land Case No. E028 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6004/eng@2026-10-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.