Kituo cha Sheria t/a The Legal Advice Centre & 2 others v Kenya Wildlife Services & 10 others (Environment and Land Petition E019 & E011 of 2026 (Consolidated)) [2026] KEELC 4916 (KLR)

BETWEEN MATASI YATUNDU ............................................................................... PETITIONER AND HON REBECCA MIANO ................................................................... RESPONDENT AND KENYA WILDLIFE SERVICE ........................................... 1ST INTERESTED PARTY ETHICS AND ANTI-CORRUPTION COMMISSION . 2ND INTERESTED PARTY KENYA FOREST SERVICE .............................................. 3RD INTERESTED PARTY RULING 1. What was coming up for determination today are the 2nd and 4th Respondents’ Notices of Preliminary Objection dated 15th May, 2026 and 10th June, 2026 respectively. 2. A reading of the Preliminary Objections reveals four broad contentions. First, that the Petition is premature and ofiends the doctrine of ripeness. Second, that it violates the doctrine of exhaustion because the disputes fall within specialized statutory dispute resolution mechanisms and are therefore outside this court's original jurisdiction. Third, that the Petitioners have neither pleaded nor demonstrated any violation of constitutional rights, principles or values, as alleged and lastly, that the Petition and the accompanying application constitute an abuse of the court process. 3. However, while preparing the Ruling, this court became aware of another Petition, being ELC EP Petition No. E039 of 2026, where over 4,000 Petitioners have sued the Respondents herein in respect of the same suit property, and raising the same issues as those raised in the two consolidated Petitions before me. That Petition is currently pending before Kemei J, also sitting in ELC Milimani. 4. The record shows that ELC EP Petition No. E039 of 2026 was first filed in ELC Kajiado on 28th June, 2026, and was transferred by Mwangi J to ELC Milimani by an order of 29th June, 2026. 5. In ELC EP Petition No. E039 of 2026, the Petitioners, inter alia, are challenging the alleged relocation of the Nairobi Animal Orphanage and the construction of the 1,300-vehicle parking facility at the disputed site within the Nairobi National Park. The Petitioners are also challenging the EIA Licence that was issued by NEMA and all the approvals associated with the above-named activities. These are the same prayers sought in the two Petitions before this court. 6. In addition, just like in the two consolidated Petitions before me, the Petitioners in ELC EP Petition No. 039 of 2026 have sought for conservatory orders pending the hearing of the Petition, while the Respondents have filed Notices of Preliminary Objections, which are similar to the two objections that are before me. 7. Indeed, in ELC EP Petition No. E039 of 2026, the court (Kemei J) has visited the site, and has reserved a Ruling on the Petitioners’ application for conservatory orders and the Respondents’ Preliminary Objections, which are similar to the ones before me. The Ruling is scheduled for 15th September, 2026. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4916/eng@2026-07-30 2

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8. The narrow question which I raise suo moto is whether difierence of parties, without more, entitles a court to proceed with a matter notwithstanding that the same subject matter is pending determination before another court of concurrent jurisdiction. I don’t think so. 9. The Court retains inherent jurisdiction under Section 3A of the Civil Procedure Act, exercised consistently with the overriding objective in Sections 1A and 1B, and with Article 159(2)(d) of the Constitution, to prevent an abuse of its process, multiplicity of suits, and the risk of irreconcilable decisions touching on the same subject matter. 10. It has been held by the courts, time without number, that multiplicity of suits over the same subject matter, even where not caught by the strict letter of sub judice, may amount to an abuse of the process of the court. 11. Two courts of concurrent jurisdiction, like in this case, cannot each competently pronounce upon title to, or proprietary interest in the same parcel of land without the risk of confiicting findings that cannot both be given efiect. 12. This ofiends the doctrine of judicial comity between courts of coordinate jurisdiction, which requires that one such court defer to, rather than pre-empt, a matter properly pending before the other; and the public interest in the finality and integrity of judicial proceedings, since parallel litigation on the same res invites forum shopping and inconsistent outcomes. 13. That the parties difier is not, by itself, dispositive. Where the same subject matter is directly and substantially in issue, and a determination in one suit would necessarily afiect or be dispositive of the issue in the other, difierence of parties does not cure the risk the doctrine is intended to prevent. It is the identity of the res and the issue, not merely the identity of the litigants, that founds the concern. 14. Therefore, this Court finds that it is not proper for it to proceed to determine an issue which is also directly and substantially in issue before a court of concurrent jurisdiction touching on the same subject matter, merely because some of the parties before it are not identical to those in the other suit. 15. The correct course, is for this Court to invoke its inherent jurisdiction to stay the afiected proceedings, or the afiected issue (s), pending the outcome of the other suit, and/or to direct the parties to pursue consolidation or joinder where appropriate, rather than to proceed and risk two courts of coordinate jurisdiction reaching irreconcilable conclusions on the same res. 16. Consequently, and for the reasons I have given above, the two consolidated Petitions herein are remitted to Kemei J for hearing and disposal. The parties are at liberty to apply for consolidation or such other case-management order, or for any interim orders, as may be appropriate. 17. For avoidance of doubt, and to avoid any confiict between the two courts, the interim conservatory orders that were granted by this court are hereby discharged. DATED, SIGNED AND DELIVERED VIRTUALLY IN NAIROBI THIS 30TH DAY OF JULY, 2026. O. A. ANGOTE JUDGE In the presence of; Mr. Taabu for Petitioners Mr. Kalisto for 1st Respondent Mr. Koech for Mr. Kuria for 2nd Respondent https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4916/eng@2026-07-30 3

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Ms Gathua for Intended Interested Party Ms Wairimu Kamau for EACC Court Assistant: Tracy https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4916/eng@2026-07-30 4

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