East Africa Tour Guides Drivers Association v Lazizi Mara Ltd & 12 others (Environment and Planning Petition E001 of 2026) [2026] KEELC 4071 (KLR)

AND EAST AFRICA WILDLIFE SOCIETY (EAWLS) ………………………………………… PARTY THE LAW SOCIETY OF KENYA …………………………………………. PARTY RULING 1ST INTERESTED 2ND INTERESTED 1. The matters coming up for determination are; The Petitioner’s Notice of Motion Application dated 5th January 2026, the 9th 11th Respondents’ Notice of Preliminary Objection dated 13th February 2026, the 4th Respondent’s Notice of Preliminary Objection dated 5th March 2026; the 1st Interested Party’s Notice of Motion Application dated 8th May 2026, and the Petitioner’s Notice of Motion Application dated 11th May 2026. 2. The Petitioner’s Notice of Motion Application dated 5th January 2026, is brought under Articles 19, 20, 21, 22, 23, 24, 27, 35, 40, 42, 47, 48, 60, 62, 63, 66, 69, 70, 162(2) (b) and 258, of the Constitution, Section 3 of the Environmental Management and Coordination Act, Cap 387, Section 13 of the Environment and Land Act, Cap. 8D, Rules 23(1), (2) and Rule 24(1) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, Section 10(2) of the High Court (Organization and Administration) Act, 2015, Rules 15, 16, 17 and 18 of the High Court (Organization ELCEP EOO1 OF 2026 Page 2 of 74

page 2 of 74

and Administration) (General) Rules, 2016; Gazette Notice No. 14545 dated 6th October 2025, and all other enabling constitutional and statutory provisions of the law. The applicant seeks the following orders; 1. That pending the hearing and determination of this Application, an interim order of injunction be and is hereby issued, Respondents restraining (Lazizi Mara the 1st, Limited, 2nd and 3rd Ritz-Carlton Company LLC and Marriot International INC.) whether by themselves, their agents, employees, affiliates, or any other person claiming under them, from: a) Conducting any further operations, development, or alteration of the land and structures known as the “Ritz-Carlton Mara Safari Camp” along the Sand River; b) Advertising, marketing, receiving bookings for, or operating any commercial tourism activities at the said lodge; and c) Interfering with, intimidating, or harassing the Petitioners, their members, or any other person accessing the Sand River wildlife corridor. 2. That pending the hearing and determination of this Petition, an interim injunction be and is hereby issued, restraining the 1st, 2nd and 3rd Respondents (Lazizi Mara Limited, Ritz-Carlton Company LLC and ELCEP EOO1 OF 2026 Page 3 of 74

page 3 of 74

Marriot International INC.) whether by themselves, their agents, employees, affiliates, or any other person claiming under them, from: a) Conducting any further operations, development, or alteration of the land and structures known as the “Ritz-Carlton Maasai Mara Safari Camp” along the Sand River; b) Advertising, marketing, receiving bookings for, or operating any commercial tourism activities at the said lodge; and c) Interfering with, intimidating, or harassing the Petitioners/Applicants, their members, or any person accessing the Sand River wildlife corridor. 3. That pending the hearing and determination of this Application, a conservatory order be and is hereby issued, compelling the 4th, 5th, 6th, 7th & 8th Respondents to immediately suspend and/or revoke all operational licenses, permits, and approvals granted to the 1st, 2nd & 3rd Respondents for the said lodge and to take immediate steps to prevent further environmental degradation and blockage of the Sand River wildlife corridor. 4. That pending the hearing and determination of this Petition, A conservatory order be and is hereby issued, compelling the 4th, 5th, 6th, 7th & 8th Respondents to immediately suspend and/or revoke ELCEP EOO1 OF 2026 Page 4 of 74

page 4 of 74

all operational licenses, permits, and approvals granted to the 1st, 2nd & 3rd Respondents for the said lodge and to take immediate steps to prevent further environmental degradation and blockage of the Sand River wildlife corridor. 5. Costs of this Application be provided for. 6. Any other or further relief this Honourable Court deems fit and just to grant. 3. The application is supported by the Affidavit of KENNEDY KAUMBA, sworn on 5th January 2026, in his capacity as the CEO of the Petitioner herein, and the grounds set on its face. 4. The Petitioner/Applicant averred that that the 1st, 2nd and 3rd Respondents have developed and operationalized the Ritz – Carlton Maasai Mara Safari Camp, an ultra – luxury safari facility, within the Sand River Wildlife Corridor in the Maasai Mara National Reserve, a globally recognized migratory route forming part of the Maasai Mara – Serengeti ecosystem. Further that the development had obstructed the ancient migration route used by approximately 1.5 million wildebeest, zebras, gazelles, elephants and other wildlife species, thereby fragmenting wildlife habitat and causing irreversible ecological damage. 5. Further, that vide a letter dated 2nd October 2023, the 1st, 2nd and 3rd Respondents applied to the County Government of ELCEP EOO1 OF 2026 Page 5 of 74

page 5 of 74

Narok for the allocation of a site to establish a luxury Safari Camp, JW Marriott Mara Safari Camp; that the County Government of Narok subsequently approved the allocation through its letters dated 14th November 2023 and 2nd January 2024. 6. Further, that the 1st Respondent thereafter entered into a lease agreement with the 4th Respondent on 5th June 2024, over approximately 15 hectares excised from Land Reference No. 27668, for a period of 33 years; and that the 5th Respondent subsequently issued Environmental Impact Assessment Licence No. NEMA/EIA/PSL/32348, to the 1st Respondent on 14th May 2024. 7. The Petitioner also averred that notwithstanding the Presidential Moratorium dated 24th July 2023, on new developments within the Maasai Mara ecosystem, the provisions of the Maasai Mara National Reserve Management Plan (2023 – 2032), and the applicable zoning restrictions, the 1st, 2nd and 3rd Respondents proceeded to construct and operationalize the Ritz – Carlton Maasai Mara Safari Camp along the Sand River. 8. Further, that Management the Plan Maasai (2023 Mara – National 2032) Reserve prohibits the establishment of new accommodation facilities until the year 2032, and limits establishment of lodges to a maximum ELCEP EOO1 OF 2026 Page 6 of 74

page 6 of 74

capacity of 30 beds, on not more than 10 hectares under leases not exceeding fifteen years, which restrictions the 1st, 2nd and 3rd Respondents disregarded. 9. Further that 1st, 2nd and 3rd Respondents have developed and are operating the “Ritz – Carlton Maasai Mara Safari Camp”, an ultra-luxury commercial safari facility situated along the Sand River near the Kenya – Tanzania border, offering twenty treetop tented suites and other luxury amenities, which he alleges were illegally constructed and are operating within a critical and protected wildlife migratory corridor. 10. The Petitioner also averred that the Safari Camp comprises permanent concrete structures erected within a protected riparian zone along the Sand River, thereby obstructing established wildlife access routes, and narrowing a protected migration corridor between the Maasai Mara National Reserve and the Serengeti National Park; and that the continued operation of the facility has resulted in habitat fragmentation, pollution, disturbance of a vital riparian ecosystem and degradation of a globally significant UNESCO World Heritage Site. 11. That the Respondents have stationed personnel along the river banks, and the surrounding ecosystem with instructions to prevent wildlife from accessing the migration corridor; that the ELCEP EOO1 OF 2026 Page 7 of 74

page 7 of 74

1st, 2nd and 3rd Respondents have resorted to legal threats and Strategic Lawsuits against Public Interest suits, to intimidate conservationists, community members and other persons advocating for environmental accountability. 12. Further, that assessment, no lawful environmental meaningful public participation, impact stakeholder engagement or community consultation was undertaken before the project commenced. 13. That the impugned development violates the constitutional rights to a clean and healthy environment, property and cultural heritage, and is inconsistent with the statutory framework governing wildlife conservation, environmental management and land use planning. 14. The Petitioner contended that unless the Court intervenes by issuing the injunctive and conservatory orders sought, the continued operation of the Safari Camp will occasion irreparable harm to the Sand River wildlife corridor, the Great Migration and the Maasai Mara ecosystem. 15. The Petitioner maintained that it has established a prima facie case with a high probability of success, that the balance of convenience overwhelmingly favours preservation of the environment and the public interest, and that any commercial inconvenience likely to be suffered by the Respondents is ELCEP EOO1 OF 2026 Page 8 of 74

page 8 of 74

outweighed by the need to conserve the protected ecosystem pending the hearing and determination of the Petition. 16. The Petitioner contended that unless the interim relief sought is granted, the Petition risks being rendered nugatory as the alleged environmental degradation will continue unabated pending the determination of the Petition. 17. The Application is opposed by the Respondents herein through various Replying Affidavits. 18. The 6th Respondent filed a Replying Affidavit sworn by PROF. ERUSTUS KANGA on 3rd February 2026, in his capacity as the Director General of the 6th Respondent, and averred that the 6th Respondent is a statutory body established under Section 6 of the Wildlife Conservation and Management Act, 2013, with the mandate of conserving and managing wildlife in Kenya; that the Maasai Mara National Reserve is a National Reserve established under Legal Notice No. 271 of 1974, and designated under the Eleventh Schedule to the Act; but that, pursuant to Section 35 of the Act, the Reserve is under the management and control of the County Government of Narok and not the 6th Respondent; and that the 6th Respondent does not issue and has never issued any permits, licences or approvals relating to activities undertaken within the Reserve. ELCEP EOO1 OF 2026 Page 9 of 74

page 9 of 74

19. Further, that, in fulfilment of its statutory mandate under Sections 7(h) and (j) of the Wildlife Conservation and Management Act, the 6th Respondent participated in the preparation of the Management Plan Maasai and Mara the National Greater Reserve Maasai Mara Ecosystem Management Plan (2023 – 2032), both of which were developed pursuant to Section 44 of the Act, through an extensive public participation process acknowledged by the Petitioner. 20. Further that Section 7(k) of the Wildlife Conservation and Management Act mandates the 6th Respondent to enforce compliance with the Act, including offences relating to management plans under section 88 thereof; that the 1st, 2nd and 3rd Respondents were not acting in contravention of the Maasai Mara National Reserve Management Plan (2023 – 2032), which contravention would constitute an offence under section 88 of the Act. 21. He averred that the Petition and the Notice of Motion Application were misconceived, as they failed to demonstrate any unlawful act or omission on the part of the 6th Respondent, and prayed that both be dismissed with costs to the 6th Respondent. 22. The 9th, 10th and 11th Respondents filed a Notice of Preliminary Objection ELCEP EOO1 OF 2026 dated 13th February 2026, in Page 10 of 74

page 10 of 74

response to the Petitioner’s Petition and Notice of Motion Application both dated 5th January 2026, wherein, they raised a Preliminary Objection on the following points of law. 23. On lack of jurisdiction for failure to exhaust statutory mechanisms, the 9th, 10th and 11th Respondents stated that the Petition and the Notice of Motion Application concern alleged environmental degradation and obstruction of wildlife migratory routes arising from construction activities within the Maasai Mara National Reserve, which disputes fall within the statutory dispute resolution framework established under the Environmental Management and Co – ordination Act (EMCA) and the Wildlife Conservation and Management Act (WCMA). 24. That under Section 129 of EMCA, disputes relating to Environmental Impact Assessment (EIA) licences, environmental approvals and regulatory decisions should first be referred to the National Environment Tribunal (NET); that the Petitioner has neither invoked nor exhausted the statutory mechanisms provided under EMCA and WCMA; and that by virtue of the doctrine of exhaustion and constitutional avoidance, the Court lacks jurisdiction to entertain the Petition in the first instance. 25. Further, that the Petition improperly invokes the Court’s constitutional jurisdiction and relied on Anarita Karimi Njeru ELCEP EOO1 OF 2026 Page 11 of 74

page 11 of 74

v Republic (1980) KLR 154 and Mumo Matemu v Trusted Society of Human Rights Alliance & Another [2013] eKLR. 26. The Respondents argued that although the Petition alleges violations of Articles 42, 69 and 70 of the Constitution, it neither pleads those constitutional violations with the requisite precision nor does it demonstrate any particular constitutional breach attributable to the Attorney General. 27. Further, that where Parliament has established a statutory mechanism for redress, parties must first pursue that mechanism before invoking the constitutional jurisdiction of the Court; and the Petition and Notice of Motion Application are premature and amount to an abuse of the court process. 28. The 9th, 10th and 11th Respondents also averred that they have been improperly joined to the proceedings; that the Petition, Notice of Motion Application and Supporting Affidavits do not disclose any specific act or omission attributable to them. That they do not exercise operational control over environmental licensing, wildlife management or construction approvals within protected areas; that the Attorney General’s constitutional role under Article 156 is merely to advise the Government, while the 9th and 10th Respondents are responsible for policy formulation concerning the environment, wildlife and tourism. ELCEP EOO1 OF 2026 Page 12 of 74

page 12 of 74

29. Further, that the Petition offends the principles of separation of powers and devolution; that management of county reserves, including the Maasai Mara National Reserve, is a devolved function under the Fourth Schedule to the Constitution. That the Petition improperly invites the Court to interfere with administrative and regulatory functions vested in the County Government and statutory environmental regulators; and that since the dispute is essentially regulatory and administrative in nature, the Court should decline jurisdiction. 30. They argued that these issues are capable of determination without evidence thus satisfying the test laid down in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696. They urged the court to dismiss and/ or strike out the Petition and instant Notice of Moton in limine with costs. 31. The 1st Respondent filed its Replying Affidavit dated 13th February 2026, sworn by SHIVAN PATEL , the Director of the 1st Respondent, who averred that the Petition herein constitute an abuse of the court process, forum shopping and deliberate fragmentation of litigation since it raised substantially identical issues to those pending before this Court in Narok ELC Petition No. E003 of 2025 – Hon. Dr. Joel Meitamei Ole Dapash v Marriott International Inc. & Others; ELCEP EOO1 OF 2026 Page 13 of 74

page 13 of 74

32. Further, that both matters challenged the same Ritz-Carlton Maasai Mara Safari Camp, alleged obstruction of wildlife migration, lack of an Environmental Impact Assessment, absence of public participation, violation of the Maasai Mara Management Plan and sought substantially similar conservatory and injunctive reliefs; 33. Further, that the same Respondents had already responded to the earlier Petition, and that he had filed a comprehensive affidavit therein on 8th October 2025, addressing the acquisition of the project site, the lease issued by the County Government of Narok, compliance with environmental, wildlife, tourism and county regulatory requirements and the absence of any encroachment upon wildlife migratory corridors. 34. The deponent denied the Petitioner’s allegations of environmental and regulatory non-compliance and averred that the Camp was lawfully developed after the 1 st Respondent conducted a comprehensive Environmental Impact Assessment, submitted the same to the National Environment Management Authority, and was thereafter issued with EIA Licence No. NEMA/EIA/PSL/32348 on 14th May 2024; further that the licence was lawfully varied on 31st October 2024, following the implementation of additional mitigation measures and that subsequent environmental audits and inspections undertaken by the 5th Respondent confirmed that the Camp was situated over 15 kilometers from the nearest ELCEP EOO1 OF 2026 Page 14 of 74

page 14 of 74

recognized wildlife migratory corridor and posed no adverse ecological impact. 35. That the allegations that the wildebeest migration were Camp scientifically obstructed the and factually unfounded since no gazetted, recognized or scientifically documented wildlife migratory corridor passed through the project site; that the 6th Respondent had confirmed that the Camp was not situated within any migration corridor, and did not obstruct wildlife movement; further that the Camp had been designed with open spaces, ecological buffers and low – impact structures intended to coexist with wildlife movement and that post – construction environmental audits confirmed compliance with all environmental safeguards, implementation of all mitigation measures recommended in the Environmental Impact Assessment, and the absence of pollution, habitat fragmentation, ecological disturbance or any enforcement action by the relevant regulatory authorities. 36. That the suit property was lawfully allocated and leased to the 1st Respondent by the County Government of Narok following a transparent process conducted in compliance with the Constitution, statute and county regulatory frameworks; that the lease dated 5th June 2024, was duly executed and registered and remained conditional upon compliance with all planning, environmental and regulatory requirements, which conditions the 1 st Respondent had fully ELCEP EOO1 OF 2026 Page 15 of 74

page 15 of 74

satisfied; that all architectural drawings, site plans, bridge works and ancillary facilities were reviewed and approved by the County Government of Narok before construction; and that the County subsequently issued a Certificate of Compliance and Endorsement confirming adherence to the Maasai Mara National Reserve Management Plan and all applicable County legislation governing land use, development and environmental management. 37. The deponent further denied that the approvals had been obtained secretly or without public participation. He averred that stakeholder consultations were undertaken as part of the Environmental Impact Assessment process in accordance with the law, and involved local community representatives, county officials and relevant government agencies; that the Environmental Impact Assessment Study Report was approved only after the 5th Respondent was satisfied that the statutory requirements relating to public participation had been fully complied with. 38. He similarly denied allegations that the Camp excluded wildlife or neighboring communities, or that its staff chased animals away from the river, describing those allegations as baseless, defamatory and unsupported by any evidence. 39. On the allegation that the Camp had been constructed within a riparian reserve, he averred that the Camp was not ELCEP EOO1 OF 2026 Page 16 of 74

page 16 of 74

constructed within the riparian reserve of the Sand River, and that all riparian setbacks had been determined and approved by the relevant regulatory agencies before construction commenced. That all structures complied with the approved site plans, environmental buffer requirements and erosion control measures and denied that any permanent structure had been erected within the riparian area as alleged by the Petitioner. 40. With respect to the Petitioner’s reliance on the Presidential Directive imposing a moratorium on tourism developments, the deponent averred that the 1st Respondent lawfully obtained an exemption from the Presidential Directive through a consent dated 30th April 2024, after consideration by the relevant authorities; that the exemption recognized the unique nature of the project, its alignment with Kenya’s conservation tourism strategy, and its anticipated contribution to investment, tourism, employment, foreign community participation and direct both the national and county economies; and that the Presidential Directive expressly contemplated exemptions in appropriate cases, and that the Petitioner had deliberately failed to disclose the existence of the exemption, thereby presenting a misleading account that the approvals had been issued contrary to the Directive. ELCEP EOO1 OF 2026 Page 17 of 74

page 17 of 74

41. He denied that the Camp violated Kenya’s international environmental obligations, discharged international its and averred obligations that through Kenya domestic legislation including the Environmental Management and Cordination Act and the Wildlife Conservation and Management Act, with which the 1st Respondent had fully complied; and that no competent authority had established any breach of international environmental law by the 1 st Respondent. 42. On the application for conservatory orders, the deponent averred that the Petitioner had failed to establish a prima facie case as the Camp had been lawfully established after obtaining all requisite land, environmental, wildlife, water use, planning and operational approvals; further that the Petitioner had not produced any credible evidence demonstrating that the approvals issued by the 4th to 8th Respondents were unlawful, irregular, fraudulent or issued without jurisdiction and therefore the Petition did not disclose any constitutional violation capable of warranting the conservatory orders sought. 43. Further, that no real or imminent prejudice had been demonstrated since the Camp had been fully constructed by March 2025, subjected to environmental audits and inspections, and officially commenced operations on 15th August 2025, several months before the filing of the present proceedings; that the Camp continued to operate under active ELCEP EOO1 OF 2026 Page 18 of 74

page 18 of 74

regulatory supervision and that there was no ongoing construction, expansion or alteration capable of causing the alleged environmental allegations of imminent harm; and that environmental the Petitioner’s degradation were speculative and contradicted by expert environmental audits confirming that the Camp was environmentally compliant and located away from any recognized wildlife migratory corridor. 44. It was his averments that granting the conservatory orders would occasion disproportionate prejudice by shutting down a lawfully licensed and operational tourism facility, thus adversely affecting the 1 st Respondent, its employees, suppliers and the local community; that the Camp directly employed more than 200 members of staff, generated tax revenue, supported local suppliers and funded conservation and community programs, all of which would be disrupted by the orders sought; and that compelling regulatory authorities to suspend or revoke licences without due process would undermine their statutory mandates, offend the principles of administrative fairness and separation of powers and destabilize a fully compliant investment without proof of illegality or environmental harm. 45. That the application had been overtaken by events since the Safari Camp had already been completed and operational for several months before the filing of the Petition; that the conservatory orders ELCEP EOO1 OF 2026 sought were therefore incapable of Page 19 of 74

page 19 of 74

practical enforcement and were intended to retrospectively halt a project that had already undergone extensive regulatory scrutiny. 46. He described the Petition and the application as frivolous, vexatious, misconceived, brought in bad faith and intended to frustrate a lawfully established investment while maligning the Respondents despite full compliance with the applicable constitutional and statutory requirements. He urged the Court to dismiss both the Petition and the Notice of Motion Application with costs. 47. The 4th Respondent filed a Notice Objection dated 5th March 2026, and of Preliminary challenged the competence of the Petition and the instant Notice of Motion Application. It contended that this Court lacks jurisdiction to entertain the matter at first instance, as the disputes fall within the statutory dispute resolution mechanisms established under the Wildlife Conservation and Management Act and the Environmental Management and Co-ordination Act (EMCA). 48. Further, that the Petition and the application are frivolous, vexatious and constitute an abuse of the court process, having been filed prematurely before the exhaustion of the available statutory remedies. ELCEP EOO1 OF 2026 Page 20 of 74

page 20 of 74

49. Equally, the 4th Respondent also filed a Replying Affidavit sworn on 18th March 2026 by JOHN MAYIANI TUYA, in his capacity as the County Secretary of the 4th Respondent, and averred that the application sought to restrain the 1st, 2nd and 3rd Respondents from undertaking further developments, and to compel the 4th, 5th and 7th Respondents to revoke all licences and approvals issued for the Ritz Carlton Maasai Mara Safari Camp; that the issues raised were identical to those in ELCEPPET No. E003 of 2025, which had been dismissed for want of jurisdiction, and that the 4 th Respondent had consequently raised a Preliminary Objection challenging the Court’s jurisdiction. 50. Further, that the construction of the Safari Camp did not violate any constitutional rights or applicable law, and that the County Government of Narok, as administrator of the Maasai Mara National Reserve, was mandated to manage the Reserve, allocate leases and oversee conservation and tourism activities; that the project was lawfully approved following an Environmental Impact Assessment and public participation; and that the Presidential directive of 24th July 2023, was inapplicable as it related to wildlife migratory corridors rather than developments within wildlife core habitats such as the Maasai Mara National Reserve. 51. That the project complied with the Maasai Mara National Reserve Management Plan 2023 – 2032; did not interfere ELCEP EOO1 OF 2026 Page 21 of 74

page 21 of 74

with wildlife habitats or the annual wildebeest migration, and that the 1st Respondent was a lawful lessee of the 4 th Respondent; and that the Petitioner had failed to establish a prima facie case or demonstrate irreparable harm, and urged the Court to dismiss the instant application with costs, as it was frivolous, vexatious and an abuse of the court process. 52. The 2nd and 3rd Respondents filed their Ground in support of the 4th, 9th, 10th and 11th Respondents Notices of Preliminary Objecction; Petition offends They averred that the instant the doctrine of exhaustion of statutory remedies; that disputes relating to development permissions ought to be determined in the first instance by the County Physical and Land Use Planning Liaison Committee under section 78 of the Physical and Land Use Planning Act, while disputes concerning environmental impact assessment licences should first be appealed to the National Environment Tribunal Environmental under Management section and 129 of the Co-ordination Act (EMCA). 53. That the disputes relating to wildlife conservation and management ought to be referred to the appropriate structures established under section 117 of the Wildlife Conservation and Management Act before approaching the Court. ELCEP EOO1 OF 2026 Page 22 of 74

page 22 of 74

54. They further averred that the Petition was barred by the doctrine of res judicata under section 7 of the Civil Procedure Act, since the issues raised have been directly and substantially determined in previous proceedings before a court of competent jurisdiction. 55. In the alternative, they contended that the Petition was barred by the doctrine of issue estoppel, relying on the decision in Hon. Dr. Joel Meitamei Ole Dapash v Marriott International Inc & 4 Others (Environment and Land Petition No. E003 of 2025) [2026] KEELC 1089 (KLR), wherein the Court allegedly held that disputes of a similar nature ought to have been pursued through the statutory dispute resolution mechanisms established under the Physical and Land Use Planning Act, EMCA and the Wildlife Conservation and Management Act, and thus the suit is an abuse of the Court process. 56. The three matters were canvassed together by way of written submissions. The 1st Respondent filed its written submissions dated 19th March 2026, in support of the Preliminary Objections by the 9th, 10th and 11th Respondents and the 4th Respondent’s Preliminary Objection dated 5th March 2026, and urged the court to uphold the same. 57. The 1st Respondent submitted that the present Petition is barred by the doctrine of issue estoppel, the jurisdictional issue ELCEP EOO1 OF 2026 Page 23 of 74

page 23 of 74

having already been conclusively determined by this Court in Narok ELC Petition No. E003 of 2025 – Hon. Dr. Joel Metianei Ole Dapash v Narok County Government, National Environment Management Authority & 3 Others. 58. The earlier petition challenged the same environmental approvals, licences and permits issued in respect of the Ritz Carlton Maasai Mara Safari Camp on substantially similar grounds, including the alleged absence of public participation, irregularities in the Environmental Impact Assessment process, and the unlawfulness of the approvals issued by the relevant regulatory authorities; that in its ruling delivered on 26th February 2026, this Court determined that such disputes ought to be pursued, in the first instance, through the statutory dispute resolution mechanisms established under the Environmental Management and Co - ordination Act and the Wildlife Conservation and Management Act, and consequently struck out the petition for want of jurisdiction. 59. Reliance was sought on Soy Developers Limited v Kenagri Products Limited & 4 Others (Environment & Land Case No. 132 of 2015) [2024] KEELC 13452 (KLR), where the Court held that issue estoppel arises where a specific issue forming a necessary ingredient in a cause of action has been litigated and conclusively determined between the same parties, precluding its re-litigation in subsequent proceedings. ELCEP EOO1 OF 2026 Page 24 of 74

page 24 of 74

60. It also cited Okoiti & 2 Others v National Assembly of Kenya & 2 Others; Senate (Interested Party) [2024] KEHC 14435 (KLR), where the Court explained that issue estoppel may apply even where the causes of action are different, provided the precise issue was distinctly put in issue, conclusively determined by a court of competent jurisdiction, and is sought to be reopened between the same parties or their privies. 61. Further reliance was placed on John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport & Infrastructure & 3 Others [2021] KESC 39 (KLR), where the Supreme Court held that parties are required to bring forward their whole case in one litigation and that the doctrine of res judicata extends not only to issues actually determined but also to every issue which properly belonged to the subject of litigation and, with reasonable diligence, ought to have been raised. 62. Further reliance was on ET v Attorney General & Another [2012] eKLR, wherein the Supreme Court cautioned that litigants should not evade the doctrine of res judicata by introducing new causes of action or additional parties while seeking substantially the same remedy that had already been determined by a court of competent jurisdiction. ELCEP EOO1 OF 2026 Page 25 of 74

page 25 of 74

63. That the jurisdictional question raised in the present Petition had already been conclusively determined by this Court in Narok ELC Petition No. E003 of 2025; and that the Petitioner is estopped from re – litigating the same issue under the guise of a fresh constitutional petition, rendering the present proceedings barred by the doctrines of issue estoppel and res judicata. Therefore, the court lacks jurisdiction. 64. It was the 1st Respondent’s submissions that Section 117 of the Wildlife Conservation and Management Act, requires disputes relating to wildlife management, protection and conservation to first be referred through the statutory dispute resolution framework before escalating to the National Environment Tribunal and, Environment and Court; Land where and applicable, that the to the Petitioner’s allegations fall squarely within the matters contemplated under the said provision. 65. Further, that the original jurisdiction to determine disputes relating to the grant, variation, revocation or conditions attached to environmental licences issued by NEMA ought to be dealt as stipulated by section 129 of EMCA. Reliance was sought on Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR, for the principle that a court’s jurisdiction flows from the Constitution or statute and cannot be assumed where it has not been conferred. ELCEP EOO1 OF 2026 Page 26 of 74

page 26 of 74

66. Further reliance was on Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 Others [2015] eKLR, where the Court of Appeal held that where Parliament has provided a statutory dispute resolution mechanism, parties must first exhaust that mechanism before approaching the courts, position reaffirmed in William Odhiambo Ramogi & 3 Others v Attorney General & 4 Others [2020] eKLR and Kibos Distillers Limited & 4 Others v Benson Ambuti & 3 Others [2020] eKLR, 67. Thus the Petitioner had failed to exhaust the statutory remedies available Conservation and demonstrated any under EMCA and the Wildlife Management Act and had exceptional circumstances not warranting exemption from the doctrine of exhaustion, which action amounts to forum shopping intended to circumvent the jurisdiction of the National Environment Tribunal. 68. Consequently, the 1st Respondent urged the Court to find that the Petitioner had failed to exhaust the statutory dispute resolution mechanisms established under the Environmental Management and Co-ordination Act and Conservation and Management Act, and should the Wildlife uphold the Preliminary Objections and strike out the Petition and the Notice of Motion for want of jurisdiction. ELCEP EOO1 OF 2026 Page 27 of 74

page 27 of 74

69. The 4th Respondent similarly filed its written submissions dated 19th March 2026, in opposition to the Petitioner’s Notice of Motion Application and in support of the Preliminary Objections dated 13th February 2026 and 5th March 2026 respectively. 70. It submitted that this Court lacks jurisdiction to determine the Petition and the Notice of Motion Application by reason of the doctrine of exhaustion; that Section 76 of the Physical and Land Use Planning Act vests jurisdiction upon the County Physical and Land Use Planning Liaison Committee to determine disputes relating to developments approved by the County Government, while Section 117 of the Wildlife Conservation and Management Act and Sections 125 and 129 of the Environmental Management and Co-ordination Act establish the statutory dispute resolution mechanisms for wildlife conservation disputes and challenges relating to licences and permits issued by NEMA. 71. According to the 4th Respondent, the Petitioner had failed to invoke or exhaust those statutory mechanisms before approaching this Court and had equally failed to demonstrate any exceptional circumstances warranting exemption from the doctrine of exhaustion. 72. The 4th Respondent relied on Kibos Distillers Limited & 4 Others v Benson Ambuti & 3 Others [2020] eKLR, ELCEP EOO1 OF 2026 Page 28 of 74

page 28 of 74

Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 Others [2015] eKLR, William Odhiambo Ramogi & 3 Others v Attorney General & 4 Others [2020] eKLR and Orata International Limited v National Environment Management Authority [2019] eKLR. 73. On the application for conservatory and temporary injunctive orders, the 4th Respondent submitted that the Petitioner had failed to satisfy the constitutional threshold for grant of the orders sought. Reliance was placed on Rule 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules as well as Centre for Rights Education and Awareness (CREAW) & Another v Speaker of the National Assembly & 2 Others [2017] KEHC 9419 (KLR) and Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR, and argued that the Petitioner had failed to establish a prima facie case or demonstrate any continuing or threatened violation capable of being prevented by conservatory orders. 74. That the Ritz – Carlton Maasai Mara Safari Camp was developed after obtaining all the requisite approvals, licences and permits from the relevant statutory bodies following a comprehensive evaluation of the project, including its environmental impacts, compliance with the Maasai Mara National Reserve ELCEP EOO1 OF 2026 Management Plan 2023 – 2032, Page 29 of 74

page 29 of 74

applicable conservation policies and the anticipated socio – economic benefits to the local community. 75. According to the 4th Respondent, the Petitioner had not demonstrated that the approvals were unlawful, irregular or issued in violation of the Constitution or any statutory provisions, nor had it demonstrated any imminent or irreparable environmental harm warranting conservatory relief. It was contended that the grant of the orders sought would undermine public interest by disrupting lawful economic activities, employment, conservation initiatives and regulatory certainty, while improperly substituting the Court’s discretion for that of competent statutory bodies exercising their lawful mandates. 76. The 9th, 10th and 11th Respondents filed their written submissions dated 8th April 2026, in support of their Notice of Preliminary Objection dated 13th February 2026 and submitted that although the Petition is framed as a constitutional petition seeking protection of the Maasai Mara ecosystem, its substratum concerns the licensing of developments, Environmental Impact Assessment licences, land use planning approvals, wildlife conservation and zoning decisions, all of which fall within specialized statutory dispute resolution mechanisms established under the Environmental Management and ELCEP EOO1 OF 2026 Co-ordination Act, the Wildlife Page 30 of 74

page 30 of 74

Conservation and Management Act and the Physical and Land Use Planning Act. 77. That the Petition herein is res judicata in view of the decision in Narok ELC Petition No. E003 of 2025 – Hon. Dr. Joel Meitamei Ole Dapash v Narok County Government, National Environment Management Authority & 3 Others, the previous suit having involved substantially the same issues, parties and subject matter and having been finally determined by a court of competent jurisdiction. 78. Further, that their Preliminary Objection raises pure points of law within the principles set out in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd and Oraro v Mbaja, since it concerns jurisdiction, the doctrine of exhaustion, res judicata and constitutional allocation of functions without requiring the Court to ascertain disputed facts. 79. Reliance was placed on Kibos Distillers Limited & 4 Others v Benson Ambuti Adega & 3 Others [2020] eKLR for the proposition that litigants ought to exhaust statutory dispute resolution mechanisms before invoking the constitutional jurisdiction of the Court. 80. They urged the Court to uphold the Preliminary Objection and strike out or dismiss the Petition for want of jurisdiction or, ELCEP EOO1 OF 2026 Page 31 of 74

page 31 of 74

in the alternative, find that the Petition is res judicata and strike it out with costs. 81. The 2nd and 3rd Respondents filed written submissions dated 10th April 2026 in support of the Notice of Preliminary Objections, and urged the court to allow them as prayed. 82. That although the Petition is presented as a constitutional challenge to the construction and operation of the Ritz Carlton Maasai Mara Safari Camp, the issues raised concern the Environmental issuance of development Impact Assessment permissions, licences, wildlife conservation, and physical planning approvals, all of which are governed by specialized statutory dispute resolution mechanisms established Management and under Co-ordination the Environmental Act, the Wildlife Conservation and Management Act, and the Physical and Land Use Planning Act. 83. Reliance was sought on Muthinja & another v Henry & 1756 Others, Mutanga Tea & Coffee Company Ltd v Shikara Ltd & Another, Deepak Harakch & another v Anmol Limited & 4 Others, Samson Chembe Vuko v Nelson Kilumo & 2 Others, and Zoa Limited v Arvind Mani & 2 Others, for the principle that where Parliament has established specialised ELCEP EOO1 OF 2026 statutory dispute resolution Page 32 of 74

page 32 of 74

mechanisms, such mechanisms must be exhausted before the Court's jurisdiction may be invoked. 84. Further, that the Petition is res judicata and barred by the doctrine of issue estoppel, the issues concerning the legality of the approvals, licensing and operation of the Safari Camp having been conclusively determined in Narok ELC Petition No. E003 of 2025, Hon. Dr. Joel Meitamei Ole Dapash v Marriott International Inc & 4 Others. 85. In support of this argument, they relied on John Florence Maritime Services Ltd v Cabinet Secretary for Transport & Infrastructure & 3 Others and Gladys Nduku Nthuki v Letshego Kenya Limited; Mueni Charles Maingi (Intended Plaintiff) on the application of the doctrines of res judicata and issue estoppel, including where parties litigate under the same title in public interest proceedings. 86. The Petitioner equally filed its written submissions dated 4th May 2026, in response and in opposition to the two Preliminary Objections Respondents dated 13th by the 9th, February 10th 2026 and and the 11th 4th Respondent’s dated 5th March 2026. 87. The Petitioner submitted that it had met the threshold for the grant of conservatory orders under Articles 23(2)(c) and 70 of the Constitution and Rule 23 of the Constitution of Kenya (Protection of ELCEP EOO1 OF 2026 Rights and Fundamental Freedoms) Page 33 of 74

page 33 of 74

Practice and Procedure Rules, 2013; that the Respondents’ actions in leasing community land, issuing development approvals and Environmental Impact Assessment licenses, and permitting the construction and operation of the Ritz – Carlton Maasai Mara Safari Camp violated the Petitioner’s constitutional rights under Articles 10, 40, 42, 47, 48, 60, 62, 63, 66, 69, 70 and 71 of the Constitution. 88. The Petitioner further submitted that the construction and operation of the Safari Camp contravened the Presidential Moratorium dated 24th July 2023, the Maasai Mara National Reserve Management Plan 2022 – 2032, ecological zoning restrictions, public participation requirements and the statutory environmental impact assessment process; and that unless restrained, the impugned development would occasion irreversible environmental degradation and prejudice the constitutional right to a clean and healthy environment guaranteed under Articles 42, 69 and 70 of the Constitution. 89. On the principles governing the grant of conservatory orders, the Petitioner relied on Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR for the proposition that conservatory orders are intended to preserve the subject matter of litigation and safeguard constitutional values pending the determination of a petition. Reliance was also placed on Centre for Rights Education and Awareness (CREAW) & 7 Others v Attorney General [2011] eKLR for ELCEP EOO1 OF 2026 Page 34 of 74

page 34 of 74

the principle that an applicant need only establish a prima facie case with a likelihood of prejudice to warrant conservatory relief. 90. The Petitioner further relied on Law Society of Kenya v Officer of the Attorney General & another; Judicial Service Commission (Interested Party) [2021] eKLR for the proposition that conservatory orders serve the public interest by preserving constitutional rights pending the determination of the dispute. Reliance was also placed on Platinum Distillers Limited v Kenya Revenue Authority [2019] eKLR for the applicable considerations in granting conservatory relief. The Petitioner additionally cited Ken Kasinga v Daniel Kiplagat Kirui & 5 Others [2015] eKLR in support of the submission that the Court should intervene to preserve the substratum of the Petition where there exists a real risk of irreparable environmental harm. 91. Further, that the doctrine of exhaustion did not bar the present Petition as it principally sought the enforcement of constitutional rights and remedies falling outside the jurisdiction of the National Environment Tribunal; and that the Tribunal lacked jurisdiction to grant the declaratory, judicial review, constitutional and restorative reliefs sought, including declarations of unconstitutionality, orders of certiorari and mandamus, permanent injunctions and environmental restoration damages. ELCEP EOO1 OF 2026 Page 35 of 74

page 35 of 74

92. The Petitioner maintained that the predominant purpose of the Petition was the enforcement of constitutional rights guaranteed under Articles 10, 40, 42, 62, 63, 69, 70 and 71 of the Constitution rather than a statutory appeal against the issuance of an Environmental Impact Assessment licence. 93. In support of this proposition, the Petitioner relied on Nicholus v Attorney General & 7 Others; National Environmental Complaints Committee & 5 Others (Interested Parties) [2023] KESC 113 (KLR) for the proposition that where the predominant purpose of proceedings is the enforcement of constitutional rights, the Environment and Land Court retains jurisdiction notwithstanding the existence of statutory dispute resolution mechanisms, particularly where the statutory forum cannot grant the reliefs sought. 94. The Petitioner further relied on William Odhiambo Ramogi & 3 Others v Attorney General & 4 Others; Muslims for Human Rights & 2 Others (Interested Parties) [2020] eKLR for the principle that the doctrine of exhaustion is not absolute and that the Court may assume jurisdiction where the alternative statutory remedy is inadequate, ineffective or otherwise unsuitable in the circumstances. ELCEP EOO1 OF 2026 Page 36 of 74

page 36 of 74

95. Reliance was further placed on Redhill Heights Investments Ltd v Butler & 4 Others [2016] eKLR for the proposition that in determining whether the doctrine of exhaustion applies, the Court should examine the predominant purpose of the proceedings rather than merely the reliefs sought. 96. The Petitioner also relied on Harith v Chakama Ranching Company Limited & 5 Others; Kitsao & another (Interested Parties) [2024] KEELC , and submitted that where the substance of a dispute concerns the enforcement of constitutional rights relating to land and the environment, the Environment and Land Court is not divested of its constitutional jurisdiction merely because alternative statutory remedies exist. 97. Further reliance was sought on Fleur Investments Limited v Commissioner of Domestic Taxes & another [2018] eKLR for the proposition that the existence of an alternative statutory remedy does not automatically bar the Court from exercising its jurisdiction where that remedy is inadequate or incapable of affording appropriate relief. 98. The Petitioner also relied on R v Birmingham City Council ex parte Ferrero Ltd [1993] 1 All ER 530 for the principle that the existence ELCEP EOO1 OF 2026 of an alternative remedy does not Page 37 of 74

page 37 of 74

necessarily preclude judicial intervention where exceptional circumstances justify the Court’s exercise of jurisdiction. 99. Further, that the statutory dispute resolution mechanisms relied upon by the Respondents were neither adequate nor effective in the circumstances of the present case; that the National Environment Management Authority, having issued the impugned Environmental Impact Assessment Licence, could not impartially determine the legality of its own decision, contrary to the principle of nemo judex in causa sua. 100. They argued that the County Physical and Land Use Planning Liaison Committee and the County Government of Narok had themselves participated in approving the impugned development and were parties to the proceedings, rendering those mechanisms ineffective and bringing the matter within the recognized exceptions to the doctrine of exhaustion. 101. That the Petition was not barred by the doctrine of res judicata by reason of Narok ELC Petition No. E003 of 2025, Hon. Dr. Joel Meitamei Ole Dapash v Marriott International Inc & 4 Others; that the previous proceedings involved different parties litigating under different titles, the earlier petitioner having sued in his personal capacity whereas the present Petition had been instituted by the East Africa ELCEP EOO1 OF 2026 Page 38 of 74

page 38 of 74

Tour Guides Drivers Association on behalf of its members under Article 22(2)(c) of the Constitution. It was further submitted that the earlier Petition had been struck out for want of jurisdiction and was therefore not finally determined on its merits. 102. The Petitioners relied on John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 Others [2021] KESC 39 (KLR) for the constituent elements of the doctrine of res judicata, and Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1 for the principle that a decision rendered without jurisdiction is a nullity and cannot found a plea of res judicata. 103. Accordingly, the Petitioner urged the Court to dismiss all the Preliminary Objections with costs to the Petitioner, allow the application dated 5th January 2026, and proceed to hear and determine the Petition on its merits. 104. The 6th Respondent equally filed its written submissions dated 6th May 2026, in opposition to the Petitioner’s Notice of Motion dated 5th January 2026 and in support of the 4th and 11th Respondents’ Preliminary Objections dated 13th February 2026 and 5th March 2026 respectively, and retaliated what the other respondents had stated in their submissions. ELCEP EOO1 OF 2026 Page 39 of 74

page 39 of 74

105. The 6th Respondent relied on Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others [2012] eKLR for the principle that jurisdiction flows from the Constitution or statute and that a court cannot arrogate to itself jurisdiction exceeding that conferred by law. 106. The 6th Respondent further submitted that the Petitioner had failed to satisfy the threshold for the grant of conservatory orders as it had not established a prima facie case with a likelihood of success, demonstrated any prejudice likely to be suffered in the absence of the orders sought, or shown that the substratum of the Petition would be rendered nugatory if the conservatory orders were declined. 107. On the principles governing the grant of conservatory orders, the 6th Respondent relied on Board of Management of Uhuru Secondary School v City County Director of Education & 2 Others [2015] eKLR for the proposition that an applicant must establish a prima facie case with a likelihood of success, demonstrate prejudice likely to be suffered in the absence of conservatory orders, and show that the public interest and the preservation of the substratum of the Petition favour the grant of such relief. 108. The 6th Respondent further submitted that the Petitioner had failed to establish a prima facie case as no evidence had been produced demonstrating that the construction and operation of ELCEP EOO1 OF 2026 Page 40 of 74

page 40 of 74

the Ritz-Carlton Maasai Mara Safari Camp interfered with any recognised wildlife migration corridor. It was contended that scientific GPS collar data collected between 1999 and 2022 demonstrated that the Maasai Mara National Reserve functions as a general wildlife dispersal area rather than a single fixed migration corridor, and that the Petitioner had failed to controvert that evidence. 109. The 6th Respondent relied on Progress Welfare Association of Malindi & 3 Others v County Government of Kilifi & 4 Others [2020] eKLR for the principle that, at the interlocutory stage, the Court is only required to determine whether an applicant has established a prima facie case sufficient to warrant the grant of conservatory orders. 110. The 6th Respondent further submitted that the Petitioner had failed to demonstrate any real, imminent or irreparable harm warranting the grant of conservatory orders. It was contended that the alleged environmental harm remained speculative and unsupported by evidence, while the scientific data demonstrated that wildebeest migration continued across the Maasai Mara ecosystem without reliance upon a single defined migration corridor. 111. The 6th Respondent submitted that the present proceedings did not constitute genuine public interest litigation and that ELCEP EOO1 OF 2026 Page 41 of 74

page 41 of 74

public interest litigation ought not to be employed to advance private interests under the guise of constitutional enforcement. 112. It relied on Brian Asin & 2 Others v Wafula W. Chebukati & 9 Others [2017] eKLR, wherein the Court adopted the principles in Ashok Kumar Pandey v State of West Bengal AIR 2004 SC 280, for the proposition that public interest litigation should be invoked only to vindicate genuine public rights and should not be abused for collateral or oblique purposes. 113. The 1st Interested Party’s Notice of Motion Application dated 8th May 2026 is brought under Articles 25(c), 50(1), 159(2)(a) and 160(1) of the Constitution of Kenya, Sections 3A and 63(e) of the Civil Procedure Act, Cap. 21, Regulation 20(1) of the Judicial Service (Code of Conduct and Ethics) Regulations, 2020, Rules 5 and 6 of the Bangalore Principles of Judicial Conduct, 2002, and all other enabling provisions of the law. The Application seeks the following orders: a. That the Honourable Lady Justice Lucy N. Gacheru recuses herself from the hearing and determination of this matter. 114. The Application is supported by the Affidavit of Nancy Ogonje, sworn on 8th May 2026, on behalf of the 1st Interested Party/Applicant, and is based on the following grounds as set out on the face of the Application: ELCEP EOO1 OF 2026 Page 42 of 74

page 42 of 74

115. The 1st Interested Party averred that every person is entitled to a fair hearing under Article 50(1) of the Constitution and that, in exercising judicial authority, a Judge is required to act independently and maintain an open and impartial mind, consistent with the Bangalore Principles of Judicial Conduct, which require that justice must not only be done but must also be seen to be done. 116. The 1st Interested Party further averred that on 12th January 2026, while delivering a ruling in the present Petition, the learned Judge acknowledged the existence of a similar pending Petition concerning the same development and raising substantially similar issues. 117. It was further averred that on 26th February 2026, the learned Judge delivered a ruling in Dapash v Marriott International Inc & 4 Others [2026] KEELC 1089 (KLR) concerning the same development, wherein the Court found that the project complied with the applicable legal and regulatory framework, that a valid Environmental Impact Assessment process had been undertaken and approved, that adequate public participation had been conducted, that no prima facie constitutional or statutory violation had been established, and that the dispute fell within the jurisdiction of the relevant statutory bodies, rendering the Petition premature. ELCEP EOO1 OF 2026 Page 43 of 74

page 43 of 74

118. It was further averred that the findings made in the said ruling substantially overlap with the issues arising in the present Petition and that a fair - minded and informed observer would reasonably apprehend that the learned Judge had already formed and expressed her views on the core questions in dispute, thereby creating a real possibility of prejudgment. 119. The 1st Interested Party further averred that pursuant to Regulation 20(1) of the Judicial Service (Code of Conduct and Ethics) Regulations, recusal is appropriate where sufficient reason exists to question a Judge’s impartiality and that the applicable test, as articulated in Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others [2013] KESC 20 (KLR) and reaffirmed in Gachagua & 5 Others v Maingi & 80 Others, Civil [2025] KECA 790 (KLR), is whether a fairminded and informed observer, having considered the facts, would apprehend a real possibility of bias. 120. Further that in the circumstances, the learned Judge’s continued conduct of the proceedings would give rise to a reasonable apprehension of bias, compromise the appearance of judicial impartiality guaranteed under Article 50(1) of the Constitution, and undermine public confidence in the administration of justice. ELCEP EOO1 OF 2026 Page 44 of 74

page 44 of 74

121. The 1st Interested Party contended that it is in the interests of justice and necessary to preserve public confidence in the judiciary that Honourable Lady Justice Lucy N. Gacheru recuses herself from hearing and determining the present Petition. 122. Consequently, the 1st interested Party filed its written submissions dated 8th May 2026 in support of its application for recusal dated 8th May 2026 and submitted as follows: 123. The 1st Interested Party submitted that judicial authority derives its legitimacy from public confidence that justice is not only done but is also seen to be done, and that Article 50(1) of the Constitution guarantees every person the right to a fair hearing before an independent and impartial court. 124. It was its submissions that on 26th February 2026, the learned Judge delivered a ruling in Dapash v Marriott International Inc & 4 Others [2026] KEELC 1089 (KLR) concerning the same subject matter, wherein the Court found that the impugned project complied with the applicable legal and regulatory framework; that the Environmental Impact Assessment process had been lawfully conducted and approved; that there had been adequate public participation; and that no prima facie constitutional or statutory violation had been established. 125. The 1st Interested Party submitted that those findings substantially overlapped with the issues pending determination ELCEP EOO1 OF 2026 Page 45 of 74

page 45 of 74

in the present Petition and, consequently, a reasonable litigant would apprehend that the learned Judge had already expressed views on central issues in dispute, thereby giving rise to a real possibility of bias. 126. On whether substantially the similar learned issues Judge’s gave rise prior to findings a on reasonable apprehension of bias, the 1 st Interested Party relied on Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others [2013] eKLR, where the Supreme Court held that the applicable test for recusal is whether a fair-minded and informed observer would apprehend a real possibility of bias. It further submitted that the Court in the said decision emphasized that public confidence in the judiciary forms the bedrock of judicial legitimacy. 127. The 1st Interested Party further relied on Kalpana H. Rawal v Judicial Service Commission [2016] eKLR, submitting that the Supreme Court reaffirmed that even the appearance of bias is sufficient to vitiate proceedings where public confidence in the administration of justice would be compromised. 128. Applying the objective test set out in Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others [2013] eKLR, the 1st Interested Party submitted that a fair-minded and informed observer would reasonably conclude that, having already expressed views on substantially similar issues, the ELCEP EOO1 OF 2026 Page 46 of 74

page 46 of 74

learned Judge could reasonably be perceived as approaching the present proceedings with a closed mind on core questions in dispute, thereby compromising the appearance of impartiality required under Article 50(1) of the Constitution. 129. On whether recusal was mandatory, the 1 st Interested Party submitted that Regulation 21 of the Judicial Service (Code of Conduct and Ethics) Regulations imposes a mandatory obligation upon a judicial officer to disqualify himself or herself where impartiality may reasonably be questioned. It argued that recusal is a constitutional imperative anchored in Article 50(1), and that where circumstances give rise to a reasonable apprehension of bias, a judicial officer must step aside. 130. In support of that submission, the 1 st Interested Party relied on Jasbir Singh Rai and Gachagua & 5 Others v Maingi & 80 Others [2025] KECA 790 (KLR), submitting that the Court reaffirmed that the test for recusal is objective and that perception of bias alone is sufficient to warrant recusal. 131. The 1st Interested Party further relied on Dari Limited & 5 Others v East African Development Bank [2024] KESC 58 (KLR), submitting that the Supreme Court underscored the necessity of judicial recusal where allegations of bias create a reasonable perception that continued participation would undermine the ends of justice. ELCEP EOO1 OF 2026 Page 47 of 74

page 47 of 74

132. Consequently, the 1st Interested Party submitted that the learned Judge’s prior findings on substantially similar issues created a reasonable apprehension of bias, and that a fair minded and informed observer would reasonably conclude that the Applicant would not receive a hearing before an impartial tribunal. It was further submitted that failure to recuse would compromise both the Applicant's constitutional right to a fair hearing and public confidence in the administration of justice. 133. The 1st Interested Party therefore prayed that the Honourable Lady Justice Lucy N. Gacheru recuse herself from the hearing and determination of the Petition and that the Court grant such further orders as it deemed just and appropriate. 134. The Petitioner’s also filed a Notice of Motion Application dated 11th May 2026 is brought under Articles 50(1), 73(2), 159, 165(3) and (4) of the Constitution of Kenya, Articles 19, 23 and 24 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, Order 51 Rules 1 and 3 of the Civil Procedure Rules, 2010, Regulation 21 of the Judicial Service (Code of Conduct and Ethics) Regulations, 2020, and all other enabling provisions of the law, and sought for this orders; a. That Honourable Lady Justice Lucy N. Gacheru recuses herself ELCEP EOO1 OF 2026 from hearing, determining or Page 48 of 74

page 48 of 74

otherwise participating in any further proceedings in the Petition. b. That pending the hearing and determination of the Application, all further proceedings in the Petition, including Preliminary the hearing of Objections the and the Respondents’ Petitioner’s application for conservatory orders, be stayed. c. That upon recusal, the matter be placed before the Principal Judge of the Environment and Land Court for reassignment to another Judge. d. That the Court certifies the Petition as raising substantial questions of law warranting the empanelment of an uneven bench under Article 165(3)(b), (d) and (4) of the Constitution. e. That the costs of the Application be provided for. 135. The Application is supported by the Affidavit of Kennedy Kaunda, sworn on 11th May 2026, on behalf of the Petitioner/Applicant, and is based on the following grounds as set out on the face of the Application: 136. The Petitioner averred that it is a registered professional association representing over 500 tour guides and drivers across East Africa and that the present Petition challenges the leasing, planning, construction, licensing and operation of the Ritz-Carlton Maasai Mara Safari Camp on the banks of the Sand River within the Maasai Mara National Reserve. ELCEP EOO1 OF 2026 Page 49 of 74

page 49 of 74

137. Further, that it was not a party to, nor represented in, Dapash v Marriott International Inc & 4 Others (Environment and Land Petition E003 of 2025) [2026] KEELC 1089 (KLR), and that the constitutional questions raised in the present Petition are distinct from those raised in the earlier proceedings. 138. The Petitioner further averred that the learned Judge previously presided over Petition E003 of 2025 concerning the same development and, while determining an interlocutory application, made published findings on factual issues that are directly in dispute in the present Petition, including the adequacy of Environmental public participation, Impact Assessment the lawfulness process, the of the project’s regulatory compliance, and the proximity of the Safari Camp to the wildlife migration corridor. 139. That in her Ruling dated 26th February 2026 in Petition E003 of 2025, the learned Judge upheld a Preliminary Objection and expressly jurisdiction, holding at found that the paragraph 132 that Court lacked the Court’s jurisdiction had been prematurely invoked and at paragraph 137 that the Court had no jurisdiction to hear and determine the Petition, whereupon she struck out the Petition. 140. The Petitioner nevertheless contended that, notwithstanding those findings on jurisdiction, the learned Judge proceeded to ELCEP EOO1 OF 2026 Page 50 of 74

page 50 of 74

determine substantive issues on the merits by finding that the Safari Camp was approximately 15 kilometres from the wildlife migration corridor, that the project had been lawfully approved under the applicable statutory framework, that a comprehensive Environmental Impact Assessment process had been undertaken and an EIA licence issued on 14th May 2024, that adequate public participation had been conducted, and that there was no evidence of any constitutional or statutory violation. 141. The Petitioner further averred that those substantive findings were irreconcilable with the learned Judge’s own finding that the Court lacked jurisdiction and were contrary to the principle in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1, which the learned Judge herself cited with approval, that a court must “down its tools” immediately upon finding that it lacks jurisdiction and cannot take any further step. It contended that despite acknowledging that principle, the learned Judge nevertheless proceeded to resolve the central factual disputes in favour of the Respondents without a full hearing, cross-examination, or participation by the present Petitioner. 142. The Petitioner further averred that because those published findings remain central to the issues in dispute in the present Petition, a fair-minded and informed observer would reasonably ELCEP EOO1 OF 2026 Page 51 of 74

page 51 of 74

apprehend that the learned Judge had already formed and publicly expressed views on the merits of the case. 143. It relied on Porter v Magill [2002] 1 All ER 465 and Philip K. Tunoi & Another v Judicial Service Commission & Another [2016] KECA 715 (KLR) for the proposition that the applicable test is whether there exists a real possibility of bias from the perspective of a fair-minded and informed observer. 144. The Petitioner further averred that the apprehension of bias was compounded by a structural conflict, in that the learned Judge would be required to determine whether her own previous findings gave rise to res judicata, issue estoppel or cause of action estoppel against the present Petitioner, thereby offending the principle that no person should be a judge in their own cause. 145. It was further averred that Regulation 21 of the Judicial Service (Code of Conduct and Ethics) Regulations, 2020, the Bangalore Principles of Judicial Conduct, and Articles 50(1), 73(2) and 75(1) of the Constitution require judicial officers to avoid both actual bias and the appearance of bias. The Petitioner contended that the learned Judge’s continued conduct of the proceedings would undermine public confidence in the administration of justice and deny the ELCEP EOO1 OF 2026 Page 52 of 74

page 52 of 74

Petitioner its constitutional right to a fair hearing before an independent and impartial court. 146. The Petitioner further averred that unless the Application was determined before any further step in the Petition, the learned Judge would proceed to hear and determine the Respondents’ Preliminary Objections and the Petitioner’s application for conservatory orders, thereby compounding the prejudice already occasioned and exposing the proceedings to future challenge. It further averred that the Petition raises substantial constitutional questions of law warranting certification for empanelment of a bench under Article 165(4) of the Constitution. 147. Consequently, the Petitioner contended that it was in the interests of justice, the preservation of public confidence in the administration of justice, and the protection of its constitutional right to a fair hearing that Honourable Lady Justice Lucy N. Gacheru recuses herself from the matter, that the proceedings be stayed pending determination of the Application, that the Petition be reassigned to another Judge, and that the Court certify the matter for empanelment of a bench. 148. Before considering the Preliminary Objections and the Petitioner’s Notice of Motion dated 5th January 2026, this Court must first determine the 1 st Interested Party’s Notice of Motion Application dated 8th May 2026 and Petitioner’s Notice ELCEP EOO1 OF 2026 Page 53 of 74

page 53 of 74

of Motion Application dated 11th May 2026, which Applications both seek the recusal of the Honourable Lady Justice Lucy N. Gacheru, from further conduct of these proceedings. The determination of those applications necessarily takes precedence, as they challenge the competence of the Court to continue hearing the matter. 149. The Applicants contend that this Court ought to recuse itself on the ground that it previously heard and determined Narok ELC Petition No. E003 of 2025 concerning the Ritz Carlton Maasai Mara Safari Camp and, in the course of that ruling, made findings relating to the legality of the project, the Environmental Impact Assessment process, public participation, regulatory compliance and the location of the project. It is their contention that a fair -minded and informed observer would conclude that this Court has already formed a concluded opinion on the issues arising in the present Petition. 150. The Applicants further contend that having found that it lacked jurisdiction nevertheless in the earlier Petition, proceeded to determine this Court substantive issues contrary to the principle established in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1, that once a Court finds that it lacks jurisdiction it must immediately “down its tools”. ELCEP EOO1 OF 2026 Page 54 of 74

page 54 of 74

151. This Court finds that the mere fact that a Judge has previously heard and determined a matter involving similar facts, parties, legal issues or subject matter does not, without more, constitute a ground for recusal. Judges exercising specialized jurisdiction are routinely called upon to determine disputes arising from the same transaction, project, statutory framework or parties. Prior judicial engagement with similar issues cannot, by itself, be construed as evidence of actual or apparent bias. 152. The applicable test for recusal is objective and not subjective. The Court must determine whether a fair-minded and informed observer, having considered all the relevant facts and circumstances, would conclude that there exists a real possibility of bias. 153. As was stated by the East African Court of Justice in Attorney General of Kenya v Prof. Anyang’ Nyong’o & 10 Others, Application No. 5 of 2007, the Court must envisage the perception of a member of the public who is not only reasonable but also fair - minded and informed of all the circumstances of the case. 154. The Supreme Court in Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others [2013] eKLR similarly held that the applicable test is whether a fair-minded and informed observer would conclude that there exists a real possibility of ELCEP EOO1 OF 2026 Page 55 of 74

page 55 of 74

bias. The Court further observed that judicial officers have not only a duty to recuse themselves where circumstances so warrant, but an equally important duty to sit and determine matters properly assigned to them where no sufficient ground for recusal has been established. 155. In R.F.S. v J.D.S. [2013] eKLR, the Court of Appeal emphasized that allegations of bias cannot be founded upon mere apprehension, dissatisfaction or conjecture. The Court stated that a party alleging bias must place before the Court objective facts capable of rendering the apprehension reasonable and not merely rely upon subjective feelings. 156. Likewise, in King Woollen Mills Ltd v Standard Chartered Financial Services Ltd & 2 Others [1995] eKLR, the Court of Appeal held that surmise or conjecture is insufficient and that there must exist circumstances from which a reasonable person would conclude that the Judge would probably favour one party unfairly at the expense of the other. 157. Applying these principles to the present case, this Court finds that the Applicants have failed to establish any objective facts capable of giving rise to a reasonable apprehension of bias. 158. The applications do not allege that this Court has any personal relationship with any of the parties, possesses any pecuniary or proprietary interest in the dispute, has any ELCEP EOO1 OF 2026 Page 56 of 74

page 56 of 74

extraneous knowledge of the disputed facts, previously acted for any of the parties, or has engaged in any conduct capable of demonstrating actual or apparent bias. The sole basis advanced is that this Court previously determined Petition No. E003 of 2025 concerning the same development project. 159. This Court is unable to accept that proposition as constituting a basis for recusal. Courts exercising specialized jurisdiction inevitably determine disputes arising from the same projects, transactions and statutory regimes. Where previous judicial engagement with similar issues sufficient to warrant recusal, judges exercising specialized jurisdiction would routinely be disqualified from hearing subsequent disputes, a consequence that would undermine the administration of justice and encourage litigants to engage in forum shopping. 160. The Applicants have further contended that this Court, having found that it lacked jurisdiction in Petition No. E003 of 2025, nevertheless failed to “down its tools” contrary to the principle enunciated in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1. That argument, in the view of this Court, cannot Form the basis for an application for recusal. Whether or not the Court correctly expressed itself in the earlier ruling is a matter falling within the appellate jurisdiction of a superior court and does not, of itself, establish bias or a reasonable apprehension thereof. ELCEP EOO1 OF 2026 Page 57 of 74

page 57 of 74

161. In any event, although observations were made in the earlier ruling, this Court did not issue any consequential or dispositive orders determining the substantive rights of the parties after finding that it lacked jurisdiction. The only operative order was that the Petition was struck out for want of jurisdiction. The Court therefore did not finally determine the merits of the dispute in a manner capable of demonstrating prejudgment of the issues now before it. 162. If indeed the Applicants considered that the Court erred by making those observations after declining jurisdiction, the law afforded them the right to challenge that decision through the appellate process. A recusal application cannot be employed as a substitute for an appeal or as a collateral attack upon a previous judicial determination. 163. The Court further finds the timing of the present applications to be significant. The Petition herein was filed on 5th January 2026. The parties thereafter filed their responses, Preliminary Objections, Replying Affidavits and comprehensive written submissions. The applications for recusal were only filed after the proceedings had substantially progressed and the matter was ripe for determination. 164. A litigant who genuinely apprehends judicial bias is expected to raise the issue promptly upon becoming aware of the alleged grounds. The Applicants instead actively participated in these ELCEP EOO1 OF 2026 Page 58 of 74

page 58 of 74

proceedings until the matter was ready for determination before raising the issue of recusal. The timing of the applications therefore leads this Court to the conclusion that they are tactical in nature. 165. This Court consequently finds that the applications amount to forum shopping and constitute an abuse of the court process. To accede to such applications in the absence of any objective evidence of bias would encourage litigants dissatisfied with previous judicial decisions to seek the disqualification of judges in the hope of obtaining a different judicial forum. 166. The Supreme Court in Gladys Boss Shollei v Judicial Service Commission & Another [2018] Eklr, recognized the doctrine of the duty to sit, observing that every Judge has a duty to hear matters properly assigned to him or her and that recusal should not be employed to cripple the administration of justice. 167. Likewise, the Court of Appeal in Galaxy Paints Company Limited v Falcon Guards Limited [1999] eKLR, cautioned that judicial officers should not accede too readily to allegations of bias, as doing so would encourage forum shopping and impede the efficient administration of justice. 168. Consequently, this Court is satisfied that the Applicants have failed to establish any objective facts capable of leading a fairELCEP EOO1 OF 2026 Page 59 of 74

page 59 of 74

minded and informed observer to conclude that there exists a real possibility of bias. The Notice of Motion Applications dated 8th May 2026 and 11th May 2026, are therefore devoid of merit and are hereby dismissed, and the Costs thereof shall abide the outcome of the Petition. 169. Having found that there exists no basis warranting the recusal of this Court, the court proceeds to determine the Notices of Preliminary Objection dated 13th February 2026 and 5th March 2026. 170. The Respondents contend that this Court lacks jurisdiction to entertain the present Petition on account of the doctrine of exhaustion, constitutional avoidance, res judicata and issue estoppel. 171. They further contend that the Petition is incompetent for having invoked this Court’s constitutional jurisdiction before exhausting the statutory dispute resolution mechanisms established under the Environmental Management and Coordination Management Act, the Wildlife Act and the Conservation Physical and Land and Use Planning Act. 172. Before considering the merits of the objections, this Court must first satisfy itself whether the issues raised constitute proper preliminary objections capable of being determined in limine. ELCEP EOO1 OF 2026 Page 60 of 74

page 60 of 74

173. The law governing preliminary objections is now settled. In Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, Law JA stated that a preliminary objection consists of: “...a pure point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit.” 174. Sir Charles Newbold P, in the same decision, further stated that a preliminary objection: “...raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised where any fact has to be ascertained or where what is sought is the exercise of judicial discretion.” 175. The Supreme Court in Independent Electoral and Boundaries Commission v Jane Cheperenger & 2 Others [2015] eKLR, reaffirmed that a preliminary objection must raise a pure point of law capable of disposing of the matter without the necessity of receiving evidence. 176. Similarly, in Oraro v Mbaja [2005] eKLR, Ojwang J. (as he then was) held that a preliminary objection cannot be founded upon disputed facts requiring ascertainment through evidence, ELCEP EOO1 OF 2026 Page 61 of 74

page 61 of 74

but must be founded on uncontested facts and pure points of law. 177. This Court has carefully considered the Notices of Preliminary Objection, the pleadings filed herein and the rival submissions. The objections raised concern the jurisdiction of this Court, the applicability of the doctrine of exhaustion, constitutional avoidance, res judicata and issue estoppel. These questions are capable of determination from the pleadings and the applicable law without requiring this Court to receive oral evidence or resolve contested facts. 178. Consequently, the court is satisfied that the Preliminary Objections raise pure points of law within the meaning of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (supra), and are therefore properly before this Court for determination in limine. 179. Having so found, the court turns to the question of jurisdiction. 180. It is settled law that jurisdiction is everything. Without jurisdiction, a Court has no power to make one more step. In Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1, Nyarangi JA famously stated: “Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no ELCEP EOO1 OF 2026 Page 62 of 74

page 62 of 74

jurisdiction, there would be no basis for a continuation of proceedings pending other evidence.” 181. The Supreme Court reaffirmed that principle in Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR, where it held that a Court’s jurisdiction flows either from the Constitution or legislation and cannot be assumed or expanded through judicial innovation. 182. Before determining whether this Court possesses jurisdiction, it is necessary to ascertain the true character of the dispute before it. Jurisdiction is determined not by the constitutional provisions cited nor the manner in which a pleading is drafted, but by the substance of the dispute disclosed therein. 183. Although the Petition is framed as a constitutional petition alleging violations of Articles 10, 27, 40, 42, 47, 69 and 70 of the Constitution, the substance of the dispute concerns the legality of development approvals, Environmental Impact Assessment licences, planning approvals, wildlife conservation decisions and permits issued by statutory bodies in relation to the Ritz-Carlton Maasai Mara Safari Camp. 184. Indeed, the substantive reliefs sought include the suspension and revocation of Environmental Impact Assessment licences, development approvals, operational permits and other regulatory authorisations ELCEP EOO1 OF 2026 Page 63 of 74

page 63 of 74

issued by the relevant statutory agencies. Those grievances fall squarely within the dispute resolution framework established by Parliament under the Environmental Management and Co-ordination Act, Management Act the and Wildlife the Conservation Physical and Land and Use Planning Act. 185. Section 129 of the Environmental Management and Coordination Act establishes the National Environment Tribunal with original jurisdiction to hear disputes relating to Environmental Impact Assessment licences issued by NEMA. Likewise, Sections 117 of the Wildlife Conservation and Management Act and the relevant provisions of the Physical and Land Use Planning Act establish specialized statutory mechanisms for resolving disputes concerning wildlife conservation and development approvals. 186. The doctrine of exhaustion requires litigants to first invoke those specialized statutory mechanisms before approaching this Court. 187. In Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 Others [2015] eKLR, the Court of Appeal held that where Parliament has established a dispute resolution mechanism outside the Courts, the same ought to be exhausted before the Court's jurisdiction is invoked. ELCEP EOO1 OF 2026 Page 64 of 74

page 64 of 74

188. The Supreme Court adopted the same reasoning in Kibos Distillers Limited & 4 Others v Benson Ambuti Adega & 3 Others [2020] eKLR, holding that litigants cannot circumvent specialized statutory dispute resolution mechanisms by merely clothing ordinary statutory disputes as constitutional petitions. 189. The Petitioner’s grievance arises directly from regulatory decisions made by the statutory agencies established under those Acts. Consequently, before invoking this Court’s constitutional jurisdiction, the Petitioner ought first to have challenged those decisions before the specialized statutory bodies established by Parliament. 190. The Petitioner argued that the doctrine of exhaustion ought not to apply because it seeks constitutional reliefs unavailable before those statutory bodies. While this Court readily accepts that the doctrine of exhaustion is not absolute, the recognized exceptions only arise where the alternative forum is shown to be unavailable, ineffective or incapable of granting adequate relief. 191. The Petitioner has not demonstrated that the National Environment Tribunal, the statutory mechanisms under the Wildlife Conservation and Management Act or the Physical and Land Use Planning Act were unavailable, ineffective or incapable of addressing the grievances relating to the impugned licences, approvals and permits. Mere invocation ELCEP EOO1 OF 2026 Page 65 of 74

page 65 of 74

of constitutional provisions cannot, by itself, confer original jurisdiction upon this Court. 192. Accordingly, the Court finds and holds that the present Petition was prematurely presented before this Court and offends the doctrine of exhaustion. 193. The Respondents further contended that the Petition is barred by the doctrine of res judicata and issue estoppel on account of Narok ELC Petition No. E003 of 2025. 194. Section 7 of the Civil Procedure Act codifies the doctrine of res judicata. The Supreme Court in John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport & Infrastructure & 3 Others [2021] KESC 39 (KLR) held that for the doctrine to apply, there must have been a final determination of the matter directly and substantially in issue between the same parties or parties litigating under the same title by a Court of competent jurisdiction. 195. While this court agree that the present Petition raises substantially similar issues concerning the same development project as those raised in Petition No. E003 of 2025, the court is unable to uphold the plea of res judicata. The earlier Petition was struck out for want of jurisdiction. A Court that declines jurisdiction does not determine the substantive merits of the dispute. Consequently, the essential ingredient of a final ELCEP EOO1 OF 2026 Page 66 of 74

page 66 of 74

determination by a Court of competent jurisdiction has not been satisfied. 196. Similarly, or the plea of issue estoppel cannot succeed. Although observations were made in the earlier ruling, the dispositive finding was that the Court lacked jurisdiction. Accordingly, the substantive issues now raised were not finally and conclusively determined so as to estop subsequent litigation. 197. Nevertheless, the fact that the earlier Petition was struck out for want Respondents' of jurisdiction objection founded serves to reinforce the upon the doctrine of exhaustion. The present Petitioner cannot, by instituting a fresh constitutional Petition founded upon substantially grievances, circumvent the statutory dispute similar resolution mechanisms which this Court has already found to be the proper fora for ventilation of those grievances. 198. Consequently, this court finds and holds that the Preliminary Objections dated 13th February 2026 and 5th March 2026 are merited on the ground that this Court lacks jurisdiction by reason of the doctrine of exhaustion. Having so found, it follows that this Court must down its tools. The Petition and the Notice of Motion dated Application dated 5th January 2026 ,are therefore found incompetent before this Court, for want of jurisdiction. ELCEP EOO1 OF 2026 Page 67 of 74

page 67 of 74

199. Having upheld Objections, and jurisdiction to the two having entertain Notices found the of Preliminary this Court that present Petition, lacks it would ordinarily follow that the Court ought to down its tools. Nevertheless, for completeness, and in the event that this Court is found to have erred in upholding the Preliminary Objections, it shall proceed to consider whether the Petitioner has established a proper basis for the grant of the conservatory and injunctive orders sought in the Notice of Motion Application dated 5th January 2026. 200. Conservatory orders are constitutional remedies intended to preserve the subject matter of litigation pending the determination of the issues before the Court. Their purpose is not to determine the rights of parties at an interlocutory stage, but to preserve the integrity of the proceedings and safeguard the efficacy of the Court’s eventual determination. 201. In Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR, the Supreme Court distinguished conservatory orders from interlocutory injunctions and held that conservatory orders are remedies in public law whose grant is informed by constitutional values, the need to preserve the authority of the Court and the public interest. The Court further held that an applicant must establish a prima facie case, demonstrate that unless the orders are granted there is a real danger that the Petition will be rendered nugatory or ELCEP EOO1 OF 2026 Page 68 of 74

page 68 of 74

constitutional prejudice will be suffered, and satisfy the Court that the orders sought are in the public interest. 202. The same position was adopted by the High Court in Board of Management of Uhuru Secondary School v City County Director of Education & 2 Others [2015] eKLR, where the Court held that an applicant must demonstrate a prima facie case with a likelihood of success and show that unless the conservatory orders are granted there exists a real likelihood of prejudice. 203. The Court has equally considered the decision in Centre for Rights Education and Awareness (CREAW) & Another v Speaker of the National Assembly & 2 Others [2017] eKLR, where it was held that in determining whether to grant conservatory orders, the Court must balance the competing constitutional interests before it and consider whether the public interest favours the grant or refusal of the orders sought. 204. Guided by the foregoing principles, and having carefully considered the Petition, the Notice of Motion, the affidavits filed by the parties and the rival submission, wherein the Petitioner seeks, among other reliefs, orders restraining the continued operation of the Ritz-Carlton Maasai Mara Safari Camp and orders compelling the relevant regulatory agencies to suspend or revoke licences, permits and approvals issued in respect of ELCEP EOO1 OF 2026 Page 69 of 74

page 69 of 74

the project pending the hearing and determination of the Petition, would this Court have issued the orders sought?. 205. From the material placed before this Court, it is evident that the impugned development has already been completed and is operational. It is equally evident that the project was undertaken pursuant to licences, approvals and permits issued by the relevant statutory authorities in exercise of their respective statutory mandates. 206. In those circumstances, the conservatory orders sought would not merely preserve the substratum of the Petition, rather, they would suspend the operation of an already completed project and substantially achieve the very reliefs sought in the Petition before the merits thereof have been heard and determined. Courts have consistently exercised restraint in granting interlocutory orders that effectively determine the substantive dispute before trial. 207. This Court is persuaded that the by the time the Petition was filed, the said Safari Camp was in operation, and the orders sought have been overtaken by events; and courts do not issue orders in vain. The allegations that the project was undertaken without adequate public participation, that it threatens wildlife migration corridors, that the Environmental Impact Assessment ELCEP EOO1 OF 2026 process was unlawful and that the Page 70 of 74

page 70 of 74

Respondents acted in violation of constitutional and statutory provisions are all vigorously disputed by the Respondents. 208. The Respondents have placed before the Court various approvals, licences, environmental reports and compliance documents in support of the legality of the project. At this interlocutory stage, this Court is neither expected nor required to make definitive findings on those contested issues. 209. The Court must also consider where the public interest lies. On the material presently before the Court, the project has been completed and is operational. It is also apparent that substantial financial investment has already been undertaken and that the statutory agencies charged with environmental regulation, exercised physical their planning respective and wildlife mandates before conservation issuing the impugned approvals. Public interest therefore militates against the suspension of an operational development through interlocutory orders before the legality of those approvals has been conclusively determined. 210. In Muslims for Human Rights (MUHURI) & 2 Others v Attorney General & 5 Others [2011] eKLR, the Court observed that in considering conservatory orders, the Court must always weigh the public interest and the constitutional values likely to be affected by either granting or refusing the orders sought. In the present case, This Court is persuaded that ELCEP EOO1 OF 2026 Page 71 of 74

page 71 of 74

the public interest favours maintaining the prevailing state of affairs given that the Petitioner never disputed the construction of the project from inception. 211. Consequently, and purely in the ALTERNATIVE, had this Court found that it possessed jurisdiction to entertain the Petition, it would nevertheless have declined to grant the conservatory and injunctive orders sought in the Notice of Motion Application dated 5th January 2026. 212. Consequently, the final orders are as follows: a. The two Notices of Motion Applications dated 8th May 2026 and 11th May 2026, by the 1st Interested Party and the Petitioner are hereby dismissed entirely with costs. b. The two Notices of Preliminary Objection by the 9 th, 10th and 11th Respondents dated 13th February 2026, and the 4th Respondent dated 5th March 2026, are hereby upheld in respect of the court’s lack of jurisdiction ; and the court proceeds to downs its tools. c. Consequently, the entire Petition and the Notice of Motion Application dated 5th January 2026 and /or any other application thereto are costs to the Respondents, for struck out with Court’s want of jurisdiction and for failure by the Petitioner to ELCEP EOO1 OF 2026 Page 72 of 74

page 72 of 74

exhaust the available disputes resolution mechanisms, provided by the relevant applicable statutes, It is so ordered. Dated, Signed and Delivered virtually at Narok this 2 nd Day of July 2026. L. GACHERU JUDGE. Delivered online in the presence of: Elijah Meyoki – Court Assistant No Appearance for the Petitioner/Applicant. Mr Kiragu Kimani & Ezra Makori for the 1st Respondent Mr Odhiambo holding brief for Mr Munyu for the 2 nd & 3rd Respondents. Ms Mayega holding brief for Mr. Maina Ngaruiya for the 4 th Respondent/Objector. No Appearance for 5th Respondent No Appearance for the 6th Respondent. No Appearance for 7th Respondent No Appearance for 8th Respondent Mr Odongo for the 9th, 10th and 11th Respondents/Objectors. Mr Ochiel Duddley for the 1st Interested Party/Applicant. No Appearance for the 2nd Interested Party ELCEP EOO1 OF 2026 Page 73 of 74

page 73 of 74

L. GACHERU JUDGE ELCEP EOO1 OF 2026 Page 74 of 74

page 74 of 74