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ELCOtherELC Land Case No. E028 of 2026· NAIVASHA ELCLC No. E028/2026

Wilson Kirungo Njenga & 2 others v S.S. Mehta & Sons Ltd & 3 others

Environment and Land Court of Kenya
1 October 2026
4,363 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Plaintiffs sued to restrain S.S. Mehta & Sons Ltd from commencing quarrying activities on Land Parcel No. Naivasha/Maraigushu Block 10/7146 and to stop NEMA, the County Government of Nakuru and the Cabinet Secretary from issuing EIA licences, quarry permits or change-of-user approvals, seeking injunctions, declarations that approvals issued without public participation are null and void, and quashing of any approvals. By a preliminary objection dated 2nd June 2026 and a notice of motion dated 15th June 2026, the 1st Defendant argued that the ELC lacked jurisdiction because complaints over an EIA licence belong to the National Environment Tribunal under Section 129 of EMCA, and planning complaints to the County Physical and Land Use Planning Liaison Committee under Section 78 of the Physical and Land Use Planning Act, so the Plaintiffs had failed to exhaust statutory remedies. The Plaintiffs responded that no EIA licence existed when the suit was filed on 17th April 2026, so NET's appellate jurisdiction had not been triggered and no remedy existed to exhaust; that Article 70 permits direct recourse for threatened environmental violations; and that the objection offended the Mukisa Biscuit rule by depending on disputed facts. The court agreed, holding that jurisdiction vests at filing and cannot be retrospectively defeated by licences procured mid-litigation, that exhaustion is not absolute where constitutional questions under Articles 42, 69 and 70 are raised, and that the objection was fact-dependent and procedurally incompetent. The preliminary objection was dismissed with costs, with the jurisdictional issue left for determination at the hearing of the main suit on evidence.

Key legal issues

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01

Whether the doctrine of exhaustion barred the ELC's jurisdiction

Holding

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.

Reasoning

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.

p. 12
02

Whether the preliminary objection was sustainable as a pure point of law

Holding

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.

Reasoning

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.

p. 14

Legal principles established

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  • 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

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  1. 1.Dismissal of the 1st Defendant's Notice of Preliminary Objection dated 2nd June 2026 as procedurally incompetent
  2. 2.Direction that the jurisdictional issue be determined alongside the main suit upon submission of evidence
  3. 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

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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, "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.