Chiggai

BETWEEN HARRIETTE IGONANGA CHIGGAI (SUING AS THE APPOINTED ATTORNEY OF TIMOTHY SHAKHALAKA ERIC JIRONGO) .......................................................................................... 1ST PETITIONER ALEX LUMWAMU IMBWAGA (SUING ON HIS OWN BEHALF AND ON BEHALF OF THE LUGARI COMMUNITY) ............................... 2ND PETITIONER AND THE CABINET SECRETARY, MINISTRY OF MINING, BLUE ECONOMY AND MARITIME AFFAIRS .................................................................... 1ST RESPONDENT HONOURABLE ATTORNEY GENERAL ................................. 2ND RESPONDENT THE DIRECTOR GENERAL, NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY ................................................................................. 3RD RESPONDENT CHAJU BUILDERS LIMITED ..................................................... 4TH RESPONDENT AND MANYONYI COMPREHENSIVE SCHOOL .................. 1ST INTERESTED PARTY DINESH CHANDULAL MOKHA .................................. 2ND INTERESTED PARTY RULING Introduction 1. 2. By a Notice of Motion dated 13th August 2026, the 2nd interested party/applicant, Dinesh Chandulal Mokha, moved the court and sought the following orders: a. Spent. b. Spent c. This Honorable Court be pleased to vacate, lift and set aside the conservatory orders restraining the quarry operations and industrial activities of the applicant, conditional upon the 4th respondent depositing a cash-backed performance guarantee or bank bond of Kshs. 1, 462, 640/= in court as security for the respondents’ properties pending the hearing and determination of the petition herein. d. This Honorable Court be pleased at this interim stage to issue an order permitting the 4th respondent to operate under active scientic led statutory regulatory oversight including compliance with strict environmental risks mitigation measures. e. This honorable court be pleased to grant further orders as it may deem t and just in the circumstances of this case. The application was premised on grounds on its face as well as the supporting and supplementary adavits led by the applicant and sworn by himself and one Rev. John Kadima respectively. The applicant stated that this court issued conservatory orders on 29th July 2026 stopping the https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5420/eng@2026-09-03 2

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quarrying operations of the 4th respondent and aecting the continued operation of the quarry. He contended that the orders have occasioned signicant commercial and economic prejudice, including disruption of quarry operations, exposure to contractual and nancial liabilities, and potential adverse consequences to the Busia county Aordable Housing Project, for which the 4th respondent is stated to be the primary contractor. The applicant further contended that the quarry forms an integral part of the supply chain for materials required for the project. 3. The applicant argued that he had obtained new evidence which he described as scientic and expert evidence. In particular, he relied on a forensic geotechnical assessment and a multi-property structural integrity assessment which, according to him, demonstrate that the Peak Particle Velocity generated by the quarrying operations is approximately 0.42 mm/s, as compared to the stated structural damage tolerance threshold of 5.0 mm/s. He also contended that the expert evidence attributes the cracks complained of by the petitioners to soil settlement and the age of the buildings rather than the quarrying activities. The applicant also asserted that the new evidence was not available when the conservatory orders were issued. 4. He therefore contended that there was need to reconsider the conservatory orders and proposed that they be lifted conditionally, subject to the 4th respondent implementing enhanced environmental and safety mitigation measures and addressing any scientically established and quantied damage. He further maintained that the alleged property damage is quantiable, citing an engineering assessment which placed the repair costs at Kshs. 1,462,640/=, and stated that a cash-backed performance guarantee or bank bond for the said amount can be provided as security. He maintained that the impugned ruling without the benet of appreciation of the full factual impact of halting the quarry operations on the social and economic benet to the community. Further that the order did not proportionately balance environmental and economic development needs of the area. 5. The applicant further relied on the supporting adavit of Rev. John Kadima, the chairperson of the Local Community Development Committee and a resident living in the vicinity of the applicant's quarry. The deponent supported the resumption of the quarry’s operations and maintains that the quarry is regarded by the majority of the local community as an important economic asset. He denied that the quarrying operations cause signicant noise, air pollution or damage to surrounding buildings, and attributed the existing cracks in buildings to historical weathering and contraction of the clay soils rather than to the quarrying activities. 6. He added that the closure of the quarry has deprived numerous local families, including youths and women of employment and has disrupted the applicant's corporate social responsibility initiatives, including the provision of treated water to over 300 households, maintenance of community roads and support to local schools. He consequently contended that continued closure of the quarry will occasion severe economic hardship and disruption of essential community services and urged the court to permit the applicant to resume operations under NEMA supervision pending the determination of the intended appeal. 7. The application was opposed by a replying adavit sworn by the 1st petitioner, Harriette Igonanga Chiggai, dated 18th August 2026. She contended that the application was, in substance, an attempt to reopen and re-argue the court’s decision rather than a proper application for review. In particular, she challenged the reliance on the forensic geotechnical analysis dated 1st August 2026 and the multiproperty structural integrity assessment report dated 7th August 2026, arguing that the reports were commissioned and prepared after the court’s ruling and therefore could not qualify as evidence which, despite due diligence, had previously been unavailable. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5420/eng@2026-09-03 3

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8. She further pointed out that the 4th respondent had already led Civil Application No. E143 of 2026 before the Court of Appeal at Kakamega seeking a stay of the conservatory orders, and contended that the grounds raised in the present application substantially overlapped with matters before the appellate court. She further contended that the new reports did not address the underlying issues concerning the legality of the 4th respondent’s quarrying operations. She relied on correspondence from the ministry and an adavit by the Principal Secretary, which she stated demonstrated that no mining licence had been issued and that the licensing process had only reached the stage of approval for publication. 9. She further maintained that the 4th respondent lacked a blasting permit and landowner consent. Consequently, she argued that expert evidence concerning blasting, vibration or structural damage could not resolve questions relating to licensing, statutory authority, environmental compliance and public participation. She also urged that, if the court admitted the post-ruling expert reports, the petitioners should be given an opportunity to obtain and le independent expert evidence in response, particularly in view of the short period of four days allowed to respond to the application. 10. On the conservatory orders, she maintained that the orders were intended to preserve the subject matter and the status quo pending determination of the petition and had not determined the merits of the dispute. She argued that the potential harm to the petitioners and the environment was not adequately addressed by the proposed security of Kshs. 1,462,640/=, which she contended bore no demonstrated relationship to environmental restoration, structural damage, safety risks, loss of land or constitutional injury. She maintained that, whereas quarrying could resume and employment and revenue could be restored if the petition ultimately failed, continued quarrying could result in irreversible environmental degradation and consequences which could not subsequently be remedied if the petition succeeded. 11. In response to the supporting adavit of Rev. John Kadima, she disputed his assertions regarding community support and the absence of noise, vibration and structural damage. She contended that the 4th respondent’s own stakeholder meeting minutes recorded complaints concerning noise, air quality, vibration and structural damage, and argued that Rev. Kadima was not qualied to give expert evidence on geotechnical, structural or vibration-related matters. She further rejected the contention that the commercial benets of the quarry or its alleged role in the Government’s Aordable Housing Project justied lifting the conservatory orders, maintaining that private commercial interests could not override constitutional and statutory requirements relating to licensing and environmental protection. 12. Finally, she challenged the urgency of the application, contending that the applicant had been aware of the conservatory orders since 29th July 2026 and had therefore had sucient opportunity to move the court earlier. She consequently urged the court to reject the application for review, decline to admit the post-ruling evidence as a basis for reopening the matter, and maintain the conservatory orders pending the determination of the petition. 13. The 4th respondent supported the application. In its replying adavit sworn by Samuel Otieno Bach, its operations director and dated 18th August 2026 it maintaining that the conservatory orders ought to be discharged, lifted or varied. It further contended that the expert geotechnical and structural report annexed to the application constituted new and important evidence within the meaning of Order 45 Rule 1 of the Civil Procedure Rules. He stated that the scientic assessment had been commissioned on 10th June 2026, before the impugned ruling, but required extensive technical eld logging, soil stability monitoring and data analysis which could not be conclusively completed within the timelines applicable to the interlocutory proceedings. It was therefore contended that the evidence could not, despite due diligence, have been produced in its nal form during the earlier proceedings. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5420/eng@2026-09-03 4

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14. The 4th respondent further relied on the ndings of the said expert assessment, contending that its controlled micro-blasting generated a Peak Particle Velocity of 0.42 mm/s, which it stated was signicantly below the 5.0 mm/s threshold prescribed by NEMA. He maintained that the structural assessment attributed the cracks complained of by the petitioners to natural soil settlement and the age of the buildings, rather than the quarrying operations. He therefore contended that the scientic evidence had removed the uncertainty which had informed the application of the precautionary principle in the court’s ruling. He also relied on a community stakeholder consultation and grievance redress meeting held on 1st August 2026, as well as a parliamentary report of 2022, to contend that the local community supported its operations and that some of the historical environmental complaints had been directed at a dierent quarry operator. 15. The 4th respondent further relied on an ODPP report dated 12th August 2026, which he contended had concluded investigations concerning alleged forgery relating to the parent title and found no criminal fraud in respect thereof. He also referred to a subsequent Kenya Gazette Notice concerning the processing and proposed issuance of its commercial mining licence, which he argued demonstrated that the regulatory process remained ongoing. The 4th respondent maintained that their relationship with the 2nd interested party was that of a vendor and purchaser in possession under an executed agreement for sale, and that the continued shutdown of its operations was causing substantial nancial prejudice to both parties, including business interruption, asset depreciation and continued security and operational costs. 16. Finally, he contended that the alleged property damage was quantiable, noting that the petitioners’ own engineering assessment had placed the cost of repairs at Kshs. 1,462,640/=. He expressed their willingness to provide a cash-backed performance guarantee or bank bond for the said amount as alternative security. He further relied on the alleged benets of the quarry’s operations to the local community, including employment, provision of water and road maintenance, and contended that continued closure would cause greater socio-economic harm to the community. He consequently urged the court to allow the application and lift the conservatory orders, or otherwise permit resumption of their operations under NEMA regulatory oversight. 17. In response to the 4th Respondent’s replying adavit, the petitioners led a supplementary adavit dated 19th August 2026 and sworn by the 1st petitioner, who disputed the factual and legal assertions contained therein. She contended that the 4th respondent’s pending appeal before the Court of Appeal ousted this court’s jurisdiction to review the conservatory orders, having elected to challenge the said orders on appeal. She further argued that the alleged expert evidence did not constitute new evidence, as the 4th respondent had commissioned and paid for the expert reports before the conservatory proceedings concluded on 14th July 2026. 18. She also challenged the authenticity and reliability of the annexures to the adavit, pointing to discrepancies in the dates appearing on the alleged payment transaction, which she contended, demonstrated an attempt to mislead the Court. She further disputed the 4th respondent’s reliance on the purported community minutes, the National Assembly report on Nzoia quarry limited, the ODPP report, and the Kenya Gazette Notice. 19. She argued that the community minutes had been prepared after the delivery of the ruling, while the National Assembly report concerned a dierent quarry but nevertheless conrmed the environmental concerns associated with quarrying activities. She further contended that the ODPP Report did not exonerate the 4th respondent, as it identied an alleged forgery and recommended further investigation. She maintained that the Kenya Gazette Notice merely invited objections to the 4th respondent’s application for a mining licence and did not constitute the grant of such a licence. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5420/eng@2026-09-03 5

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20. Finally, she argued that the 4th respondent could not claim prejudice or nancial hardship, having acquired the quarry operations with knowledge of the existing dispute and the alleged regulatory noncompliance. She opposed the proposed deposit of Kshs. 1,462,640/= as security and reiterated the averments contained in her earlier replying adavit. She therefore urged the court to disregard the 4th respondent’s adavit and dismiss the application for review with costs, on the grounds that the court’s review jurisdiction had been ousted by the 4th respondent’s appeal and that the documents annexed to the 4th respondent’s adavit contained material inconsistencies. 21. In a rejoinder, the 2nd interested party/ applicant led his supplementary adavit responding to the petitioners’ replying adavit. The adavit generally sought to demonstrate that the review application was properly founded on newly available scientic evidence, that the conservatory order was disproportionate, and that its continued operation was causing him substantial nancial prejudice. He stated that he was the registered proprietor of the suit properties and that the further adavit had been led to respond to alleged factual and legal errors in the petitioners’ replying adavit. He denied assertions that the review application was a disguised appeal and maintained that the geotechnical and structural investigations had commenced before the ruling, with the consultants having been instructed and paid in June 2026. 22. He explained that the scientic investigations required time to generate reliable data and that the nalized reports therefore constituted new and important evidence which could not reasonably have been produced earlier. He further contended that the existence of the 4th respondent’s pending appeal did not oust this court’s jurisdiction to entertain the review application, since no substantive record of appeal had been lodged. He maintained that his interests as an independent interested party were distinct from those of the 4th respondent and that the review application was based on newly nalized scientic ndings, including the 0.42 mm/s Peak Particle Velocity reading. 23. He argued that the petitioners had eectively admitted that the interlocutory order had been issued without veried scientic data on vibration, structural damage or environmental risk. He therefore contended that the new scientic and structural evidence satised the requirements for review under Order 45 Rule 1 of the Civil Procedure Rules and also constituted sucient or justiable reason for review. He argued that the continued conservatory order created a disproportionate socioeconomic and nancial burden and that the court improperly applied the precautionary principle. He maintained that the 4th respondent had been willing to operate under regulatory or court supervision with real-time vibration monitoring, which would safeguard the environment while allowing the commercial transaction to proceed. 24. He further argued that the petitioners were seeking a nal determination of disputed regulatory issues at an interlocutory stage, despite lacking veried evidence. He relied on a Kenya Gazette Notice which, according to him, showed that the Ministry of Mining had reviewed the 4th respondent’s technical applications and approved issuance of a commercial mining licence, subject to administrative nalization. He consequently contended that any challenge to the Ministry’s administrative process ought to have been pursued through the appropriate statutory or judicial review mechanisms. 25. He maintained that the petitioners’ allegations concerning ownership, lack of consent and title fraud had been disproved by an ODPP forensic report dated 12th August 2026, which had cleared his specied properties of fraud or forgery. He stated that the necessary environmental and stakeholder consultations had also been completed as part of the mining licence application. He further argued that the petitioners’ request for leave to engage an independent expert demonstrated that they lacked empirical evidence to support their allegations. He accused the petitioners of approbating and https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5420/eng@2026-09-03 6

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reprobating by rejecting his nalized scientic evidence while simultaneously seeking permission to obtain their own evidence. 26. He also contended that the petitioners had rushed to court without sucient evidence and had subsequently shifted their case from alleged environmental and structural damage to concerns over the commercial value and depletion of minerals. He therefore argued that the petition was being used as a means of stopping the quarry operations and interfering with commercial assets. 27. He maintained that his registered ownership of the property had been conrmed and that the petitioners’ arguments on the balance of convenience were therefore misconceived. He argued that public interest litigation could not properly be used to interfere with a private commercial transaction. He further contended that the petitioners’ own quantied claim of Kshs. 1,462,640/= for structural damage demonstrated that the alleged injury was capable of monetary compensation and was therefore not irreparable. He stated that he and the 4th respondent had oered to provide a cash bond or bank guarantee for the same amount, thereby securing the alleged loss during trial. 28. He consequently argued that a total shutdown of the quarry was unnecessary and disproportionate. With respect to the evidence of Rev. John Kadima, he maintained that the deponent was not presented as a technical expert, but as a long-term community member and community leader, whose evidence showed that the local community did not object to the quarry operations and that historical complaints had concerned a dierent quarry operator. He further argued that the principle of proportionality required the court to consider the separate legal and nancial interests of each party. 29. He emphasized that his nancial exposure as the registered owner and vendor was distinct from the 4th respondent’s contractual obligations. He stated that the continued shutdown had left him unable to complete the land transaction in ELC Suit No. E086 of 2025, receive the purchase price or utilize his property. He argued that the veried vibration report demonstrated that there was no structural risk and that continued closure would cause severe nancial harm without corresponding environmental benet. He rejected the allegation that the review application had been led with unreasonable delay, explaining that the ruling had been delivered on 29th July 2026, while the denitive geotechnical and structural reports had been nalized on 7th August 2026. 30. He maintained that the ten-day period was necessary for the consultants to process the seismograph readings and prepare reliable scientic models. Finally, he contended that Order 45 Rule 1 required an application for review to be made without unreasonable delay rather than within a xed number of days, and that his prompt ling after receiving the nalized scientic evidence demonstrated due diligence. 31. Pursuant to court’s directions, the respective parties led their written submissions. On record are the applicant’s and the petitioners’ submissions both dated 19th August 2026. Parties were also accorded opportunity to highlight their submissions, which was done on 20th August 2026. Applicant’s submissions 32. Counsel for the applicant submitted on two matters, namely; the legal framework governing application for review of interlocutory orders; and the place and legal standing of the principle of proportionality in shaping appropriate reliefs by courts under Articles 23 (3) and 70 (2) of the Constitution of Kenya 2010. On the rst issue, counsel referred to Article 159 of the Constitution and Rules 3 and 25 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, 2024 and argued that it was in the interests of justice that the conservatory orders issued on 29th July 2026 be reviewed and or set aside on account of discovery of new https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5420/eng@2026-09-03 7

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and important scientic evidence which had not been available when the orders were issued. Relying on the case of Pancras T. Mpabuka v Land Registrar & 2 Others [2018] e KLR, the applicant argued that due diligence does not require a litigant to perform the impossible. 33. He argued that the forensic assessment had required extended seismographic data collection and had only been completed on 7th August 2026. He therefore maintained that the evidence could not, despite due diligence, have been produced earlier and that the application for review had been made without unreasonable delay. To buttress this position counsel relied on the case of Abdi Ali v Ahmed Mohammed [2021] KECA 14 (KLR). Counsel maintained that the admission by the petitioner that the applicant’s scientic report was nonexistent at the interlocutory stage conrmed that the impugned order was issued in a complete scientic vacuum. 34. The applicant’s counsel further submitted that the existence of parallel proceedings before the Court of Appeal did not deprive this court of jurisdiction to review its interlocutory orders. He argued that a notice of appeal or an application for stay did not constitute the ling of a substantive appeal sucient to oust the trial court’s review jurisdiction. Reliance was placed on the case of Multichoice Kenya Ltd v Wananchi Group Kenya Ltd & 2 Others [2020] KECA 633 (KLR) for the proposition that a notice of appeal or an application for intermediate relief under Rule 5 (2) (b) of the Court of Appeal Rules does not constitute a “preferred appeal”. 35. Citing section 8 of the Environment and Land Court Act as well as the case of Ndambiri & Another v Nairobi Metropolitan Services & 6 Others ELC Petition No. E026 OF 2022, counsel maintained that the Environment and Land Court ought to relax the strict application of review principles in respect of variation of injunctive orders by application of the precautionary principle in regard to ongoing impact of public works on the ecosystem. He also submitted that the court ought to have respected the statutory mandate of the relevant regulatory authorities and that any challenge to the mining licensing process ought to have been pursued through the mechanisms provided under the Mining Act. 36. On the second issue, counsel submitted that the court ought to have applied a proportionate balance between environmental protection as against the socio-economic consequences of stopping the quarry operations, but failed to do so in the impugned ruling. He proposed that, instead of maintaining an absolute prohibition, the court could have permitted the quarry operations to resume subject to strict environmental safeguards, scientic monitoring, regulatory oversight and a performance guarantee or bank bond of Kshs. 1,462,640/=. 37. He referred to the court’s power to fashion structural and supervisory orders that would protect environmental rights while accommodating competing public and socio-economic interests. Counsel referred to Articles 10 (2) and 69 (1) of the Constitution of Kenya 2010 and argued that the court ought to uphold a proportionate balance between sustainable exploitation of natural resources and environmental conservation. Regarding what constituted public interest, the Court was referred to among others, the case of Gachagua & 7 Others v Speaker, National Assembly & 5 Others; Law Society of Kenya & Another (Interested Parties) [2024] KENC 13752 (KLR) (23 October 2024) (Ruling). 38. Counsel maintained that this court ought to have considered granting structural interdicts so as to give a proportionate balance between environmental protection and socio-economic benet. In this respect, the court was referred to the case of Mitu-Bell Welfare Society v Kenya Airports Authority & 2 Others; Initiatives for strategic Litigation in Africa (Amicus Curiae (Petition 3 of 2018) [2021] KESC 34 (KLR) (11 January 2021) (Judgment). Counsel also referred to the case of Centre for Rights Education and Awareness (CREAW) & 7 Others [2011] e KLR among others and argued that for a court to grant conservatory orders the applicant ought to demonstrate real danger that he will suer prejudice. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5420/eng@2026-09-03 8

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39. Therefore, it was submitted for the applicant that the petitioners had not demonstrated a real, imminent and actual danger warranting the continued grant of conservatory relief, as opposed to a remote or speculative threat. He further contended that the licensing process had not been completed and that the dispute was therefore not yet ripe for determination. Relying on the principles of separation of powers, and exhaustion and ripeness, he urged the court to avoid premature interference with the statutory regulatory process and to vary the conservatory orders in a manner that balanced the competing interests. Petitioners’ submissions 40. Counsel for the petitioners opposed the application for review arguing that it was devoid of merit, constituted an abuse of the court process, and was essentially a disguised appeal against the conservatory orders issued on 29th July 2026. Regarding the legal threshold for review, counsel submitted that under section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, review was only available on the grounds of discovery of new and important evidence which could not, despite due diligence, have been produced earlier; an error apparent on the face of the record; or any other sucient reason. Relying on authorities including National Bank of Kenya Ltd v Njau [197] KECA 71 (KLR) and Rose Kaiza v Angelo Mpanju Kaiza [2009] KECA 422 (KLR), counsel contended that review could not be used to re-argue or reopen a matter that had already been determined and for the ground of discovery of new and important evidence an applicant ought to demonstrate that they exercised due diligence in obtaining the evidence but failed. 41. On behalf of the petitioner, counsel particularly challenged the two expert reports relied upon by the applicant, namely the Forensic Geotechnical analysis dated 1st August 2026 and the Multi-Property Structural Integrity Assessment report dated 7th August 2026. They pointed out that both reports had been prepared after the court had delivered its ruling on 29th July 2026 and therefore did not constitute evidence that had existed but had been undiscoverable at the time of the hearing. They argued that the reports amounted to newly generated evidence rather than newly discovered evidence and could not form the basis of a review. The court was referred to the case of David & Others v Bakaya [2025] KEHC 12790 (KLR) for the proposition that evidence obtained after judgment cannot form the basis of a review application. 42. The petitioners further contended that the applicant had had an opportunity to participate in the proceedings but had not led a replying adavit or notied the court that expert evidence was being commissioned. Review, they submitted, could not be used to remedy the applicant’s own evidential omissions. They further submitted that there had been no error apparent on the face of the record, since the court’s ruling had been based on the evidence and submissions properly before it, including the petitioners’ engineer’s report which had attributed the structural damage to quarry blasting. They also argued that commercial prejudice did not constitute “any other sucient reason” for purposes of review. 43. He argued that conservatory orders had been intended to preserve the subject matter and prevent potentially irreversible harm pending determination of the petition. Counsel maintained that the proposed security of Kshs. 1,462,640/= had not addressed the environmental, structural, constitutional or public-law concerns underlying the orders. The petitioners invoked the precautionary principle and argued that the existence of scientic disagreement regarding the cause of the damage was a reason to maintain, rather than lift, the protective orders. 44. Counsel also contended that the expert reports, even if accepted, would not have cured what they described as the fundamental illegality of the quarry operations. They relied on the ministry’s letter https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5420/eng@2026-09-03 9

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dated 12th March 2026 and the Principal Secretary’s adavit to argue that no mining licence had been issued in respect of the suit property. Consequently, counsel submitted that the reports could not have established the existence of a mining licence, statutory authority to conduct blasting, compliance with environmental requirements, or lawful public participation. Counsel further rejected the argument that the quarry’s alleged role in supplying an Aordable Housing Project justied lifting the orders, relying on Popat & 7 others v Capital Markets Authority [2020] KESC 3 (KLR) for the proposition that there could be no public interest in breach of the law. 45. Regarding the applicant’s contention that he had met the threshold under Order 45 Rule 1 of the Civil Procedure Rules on the basis of “other sucient reason” counsel relied on the case of Elijah K. Taragon v George Kiptanui Cheboi [2020] KEELC 2192 (KLR) and argued that the phrase “any other sucient reason” must be construed ejusdem generis with the preceding grounds and that commercial inconvenience cannot constitute sucient reason for review. 46. Finally, the petitioners’ counsel challenged the 4th respondent’s replying adavit, arguing that it could not have cured deciencies in the applicant’s application, particularly as the 4th respondent had itself led Civil Application No. E143 of 2026 before the Court of Appeal seeking to stay the conservatory orders. They contended that the 4th respondent had commissioned expert evidence as early as June 2026 but had chosen not to present it during the original proceedings and could therefore not rely on it at the review stage. They maintained that the applicant had failed to satisfy any of the grounds for review under Order 45 Rule 1 and consequently prayed that the application dated 13th August 2026 be dismissed with costs and that the conservatory orders of 29th July 2026 be maintained pending the hearing and determination of the petition. Analysis and determination 47. The court has carefully considered the application, supporting adavits, replying adavits, supplementary adavits and rival submissions. In the court’s view, two issues arise for determination, namely; a. Whether this court has the requisite jurisdiction to determine the application for review, in view of the Notices of Appeal led by the respondents. b. Whether the applicant has met the threshold for grant of review of the conservatory orders issued by this court on 29th July 2026. 48. The jurisdiction of this court to grant review of conservatory orders is provided for in Rule 25 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules and section 80 of the Civil Procedure Act. 49. Rule 25 aforesaid provides that a conservatory order issued by court may be discharged, varied or set aside by the court either on its own motion or on application by a party dissatised with the order. 50. On the other hand, section 80 of the Civil Procedure Act provides as follows; “ Any person who considers himself aggrieved— (a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or (b) by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks t.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5420/eng@2026-09-03 10

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51. Therefore, the court has jurisdiction to determine an application for review where an appeal is allowed but no appeal has been preferred or where no appeal is allowed. 52. In objecting to this court’s jurisdiction, the petitioners argued that as the 4th respondent had already led a Notice of appeal, which constituted a “preferred appeal” envisaged under section 80 of the Civil Procedure Act and therefore the court lacked jurisdiction to determine the review application. On the other hand, the applicant responded that a notice of appeal is merely an intention to appeal and does not constitute a “preferred appeal”. 53. This court has considered arguments on both sides on the question of jurisdiction. The law clearly provides that where an appeal is allowed and has been preferred, then the court’s jurisdiction to determine review application is ousted. In this case, several respondents have led notice of appeal. This includes the 4th respondent. The applicant has not led notice of appeal. Therefore, the issue is whether the ling of notices of appeal by the respondents alone constitutes preferring an appeal. 54. In the case of Multichoice (Kenya) Ltd v Wananchi Group (Kenya) Ltd & 2 Others Civil Appeal No. 368 of 2014 [2020] e KLR, the Court of Appeal held that the court has jurisdiction to entertain an application for review where only a Notice of Appeal has been lodged and that the jurisdiction of the court is ousted when an appeal has been instituted under Rule 82 of the Court of Appeal Rules. 55. In the case of The Chairman Board of Governors Highway Secondary School v William Mmosi Moi Civil Application No. 277 of 2005 the Court of Appeal held that; “ a Notice of Appeal is however only a formal notication of an intention to appeal and it cannot be said that the aggrieved party had “preferred” an appeal at that stage and was thus precluded from exercising the option of review. The issue as to whether a respondent, having led a Notice of Appeal which had not been withdrawn had a right to apply for review was answered in the armative by this court in Yani Haryonto v E.D & F. Man (Sugar) Ltd Civil Appeal No. 122/92 (ur). In that case the application for review under order 44 of the Civil Procedure Rules was led two years after the ling of the Notice of Appeal. After examining the relevant provisions of the Law, the court stated;“The Court of Appeal for Eastern Africa in the case of Motel Schewtser v Thomas Cunningham & Another (1955) 22 EACA 252, held that an appeal is not instituted in the Court of Appeal until the record of appeal is lodged in the registry, fees paid and security lodged as provided in rule 58 of the East African Court of Appeal Rules. This statement of the law regarding the status of a notice of appeal was subsequently approved by the Court of Appeal for Eastern Africa in the case of Ujaga Singhv Runda Coee Estates Ltd [1966] E.A 263. So quite clearly, the judge had jurisdiction to entertain the application for review…. So that, the Board was at liberty to pursue the option of review of the orders despite the ling of a notice of appeal to challenge the same orders. However, upon the exercise of that option and pursuit therefrom until its conclusion, there would be no further jurisdiction exercisable by an appellate court over the same orders of the court. That was the end of the matter and the notice of appeal was rendered purposeless. Both options cannot be pursued concurrently or one after the other.” 56. It is therefore clear that a notice of appeal is merely an intention to appeal and does not constitute an appeal or amount to a “preferred appeal” envisaged under section 80 of the Civil Procedure Act. 57. In the instant case, the respondents have only led their respective notices of appeal. No appeal has been led under Rule 82 of the Court of Appeal Rules. Besides, Order 45 Rule 2 of the Civil Procedure https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5420/eng@2026-09-03 11

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Rules provide that a party not appealing against a decision is free to apply for review of such decision notwithstanding the pendency of an appeal against the same decision by another party, unless the ground raised in the review application is the same ground raised on appeal and the applicant is party to that appeal having opportunity before the appellate court, to present his case as framed in the review application. In the case before me, while the respondents have led notices of appeal, the applicant has not led any notice of appeal. Besides, there is no appeal which has raised the same matters raised in the instant application. In the premises, this court nds that no appeal has been preferred against the impugned orders by any of the parties herein and on that basis, I nd and hold that this court has jurisdiction to hear and determine the application for review dated 13th August 2026. 58. On whether the instant application is merited, Order 45 Rule 1 of the Civil Procedure Rules provides the conditions upon which review may be granted as follows; 1. 59. 60. Any person considering himself aggrieved – a. by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or b. by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sucient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay. Therefore, for an applicant to succeed in seeking orders for review, he/she must demonstrate any of the following grounds; a. That there is discovery of new and important matter or evidence, which was not in his knowledge or could not be produced by him after exercise of due diligence; or b. That there is a mistake or error apparent on the face of the record; or c. That there is a sucient reason; and d. An application for review must be made without unreasonable delay. The Court of Appeal in Jameny Mudaki Asava v Brown Otengo Asava & another [2015] KECA 313 (KLR) stated that: “ Order 45 of the Civil Procedure Rules is unequivocal on the basis upon which a court can review its orders. The conditions are a) there must be a discovery of a new and important matter which after exercise of due diligence was not within the knowledge of the applicant at the time the decree was passed, or the order was made; or b) there was a mistake or error apparent on the face of the record; or there were other sucient reasons; and c) the application must have been made without delay.” 61. Courts exist to do justice in every case that is brought before them. However, courts are manned by human beings who are not free from frailties. Therefore, where there is manifest miscarriage of justice by virtue of human fallibilities and imperfections, the same court that issued an order which is undeniably and patently unjust and or erroneous, ought to correct such injustice by way of review, even where the door for an appeal is open. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5420/eng@2026-09-03 12

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62. In Benjoh Amalgamated Limited & another v Kenya Commercial Bank Limited [2014] KECA 872 (KLR), the Court of Appeal appreciated the resultant tension when the need to do justice militate against the nality of litigation, and held that review jurisdiction may be exercised in appropriate circumstances. In particular, the Court considered the circumstances in which a court may revisit its own decision and stated as follows: “ The ‘nality principle’ was urged on the basis of public interest as a public policy issue and was anchored on the need for stability and consistency in law while the ‘justice principle’ was urged on the basis of justice to the parties and to boost the condence of the public in the judicial system.” 63. In the same case, the Court of Appeal stated the rationale for the remedy of review as follows: “ The basic philosophy inherent in the concept of review is acceptance of human fallibility and acknowledgement of frailties of human nature and sometimes possibility of perversion that may lead to miscarriage of justice. In some jurisdictions, courts have felt the need to cull out such power in order to overcome abuse of process of court or miscarriage of justice. In the High Court, both the Civil Procedure Act in section 80 and the Civil Procedure Rules in Order 45 rule 1 confer on the court power to review. Rule 1 of Order 45 shows the circumstances in which such review would be considered range from discovery of new and important matter or mistake or error apparent on the face of the record or any other sucient reason but section 80 gives the High Court greater amplitude for review.” 64. In the instant case, in light of the threshold put forth in Order 45 Rule 1 of the Civil Procedure Rules, the applicant has raised two grounds for review. First, that he has discovered new and important evidence which was not within his knowledge and which could not be produced at the time of the impugned ruling. Secondly, he faulted the impugned ruling on several grounds which he argued, amounted to “any other sucient reason” to grant review. 65. In Warui v Mbeere Elders Advisory Welfare Group (NGOME) & 14 others [2025] KECA 960 (KLR), the Court of Appeal reiterated that an applicant seeking review on the ground of discovery of new and important evidence must demonstrate that the evidence, after the exercise of due diligence, was not within the applicant's knowledge or could not be produced when the order was made. 66. This court takes the view that any new and important evidence sought to be produced by an applicant seeking review, ought to have been in existence at the time the impugned order or decree was passed, but either the applicant was not aware that such evidence existed or he or she could not produce it, even upon exercise of due diligence. The court will not grant review in circumstances where an applicant seeks to produce evidence for purposes of patching up and or strengthening the weak parts of his case in a case he has lost. Besides, evidence created after a decision has been delivered cannot form the basis for review. 67. In Rose Kaiza v Angelo Mpanjuiza [2009] KECA 422 (KLR) the Court of Appeal cited the commentary by Mulla on Indian Civil Procedure Code, 15th Edition at page 2726, on the ground of discovery of new and important evidence as follows: “ Applications on this ground must be treated with great caution and as required by r 4(2) (b) the Court must be satised that the materials placed before it in accordance with the formalities of the law do prove the existence of the facts alleged. Before a review is allowed on the ground of a discovery of new evidence, it must be established that the applicant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5420/eng@2026-09-03 13

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had acted with due diligence and that the existence of the evidence was not within his knowledge; where review was sought for on the ground of discovery of new evidence but it was found that the petitioner had not acted with due diligence, it is not open to the Court to admit evidence on the ground of sucient cause. It is not only the discovery of new and important evidence that entitles a party to apply for a review, but the discovery of any new and important matter which was not within the knowledge of the party when the decree was made.” 68. In the case of D. J. Lowe & Company Ltd v Banque Indosuez Civil Appl. Nai 217/98 (ur), the Court of Appeal stated as follows; “ Where such a review application is based on fact of the discovery of fresh evidence, the court must exercise greatest of care as it is easy for a party who has lost, to see the weak part of his case and the temptation to lay and procure evidence which will strengthen that weak part and put a dierent complexion. In such event, to succeed, the party must show that there was no remissness on his part in adducing all possible evidence at the hearing.” 69. The applicant herein insisted that even upon exercise of due diligence, he could not avail the scientic reports which were allegedly commissioned by the 4th respondent in June 2026, and were under compilation as at the time of issuance of the conservatory orders. 70. The court has critically assessed the reasons for the applicant’s inability to avail the alleged new and important evidence. The reports sought to be produced were prepared on 7th August 2026 and 8th August 2026 respectively, which is after the delivery of the impugned ruling. Although the applicant alleged that the said reports were under compilation as at the time of the impugned ruling, having been commissioned on 10th June 2026, no such information was availed by the 4th respondent to this court, when this matter came up severally for directions regarding the hearing of the application for conservatory orders. 71. Besides, it is inconceivable that the 4th respondent had, before the inter partes hearing of the application, commissioned scientic reports to address the key issues including the alleged vibrations as well as noise and air pollution as raised by the petitioner, yet not only failed to mention that position both to the court and the applicant, but immediately after delivery of the impugned ruling, found it necessary to forward the report to the applicant. 72. Besides, the petitioners had presented their own expert report regarding alleged detrimental consequences of the blasting and quarrying activities by the 4th respondent. On 8th June 2026, this court made directions on the hearing of the application for conservatory orders and gave timelines for the respondent and interested parties to le their respective responses. Therefore, both the applicant and 4th respondent were granted opportunity to respondent to the petitioners’ assertions which the applicant now terms as unveried allegations and theoretical fears. No information was brought to the court’s attention that scientic reports had been commissioned and no extension of time to conclude the exercise was sought even as the other respondents sought and obtained more time to respond to the application for conservatory orders. 73. This court has had a glance at the forensic geotechnical analysis and seismic wave propagation impact assessment report for operational blasting activities by the 4th respondent as well as the Multi-property Structural Integrity Assessment report. The author of the former, Engineer Brian Aseka Esatia, prepared the report on 7th August 2026. The second report was prepared by Engineer Moses T.M. Prima facie, the reports show that before assessments and analysis, site visits were done in respect of https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5420/eng@2026-09-03 14

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several sites including the quarry itself, the rocks at the quarry, buildings and the fence at the quarry, the Jirongo home and Manyonyi Comprehensive School. From the reports, the visits to those sites, as well as the assessment and analysis in regard thereto, were done on 31st July 2026 and 1st August 2026. It is clear that the scientic reports relied upon as new and important evidence, were not in existence as at the time the impugned ruling was delivered. 74. While the applicant argues that he was not aware that the 4th respondent had commissioned the scientic report, the option to counter the petitioners’ evidence and or expert report was not the exclusive preserve of the 4th respondent. In my view, due diligence would include considering the possibility of countering an expert report with another expert report, on the matters raised by the petitioners which were noise and air pollution, and environmental damage due to vibrations created by blasting. 75. The need to respond to the petitioner’s evidence through an expert scientic report was not a matter only in the knowledge of the 4th respondent, neither was it an option that could only be exercised by the 4th respondent. That option was also available to the applicant as well. However, in the face of many allegations made by the petitioners, the applicant herein chose not to response to the factual allegations by the petitioners. He responded to the application by only ling a preliminary objection stating that the court had no jurisdiction, and that the petition was res judicata, sub judice and multifaceted. If the 4th respondent’s report was under compilation but unavailable due to the need for more time as alleged by the applicant, there was nothing that stopped both the applicant and the 4th respondent from seeking more time to commission and le their own respective expert/scientic reports. Therefore, the applicant had an obvious option of responding to the petitioners’ report by ling his own expert report as the petitioners had raised questions of air quality, vibrations and noise pollution. The applicant who is ably represented by counsel is aware that noise, vibration and air quality are scientically measurable. However, it was only after the ruling that the quarry site was visited and the report prepared. 76. In addition, the applicant stated that the evidence of Rev. John Kadima which included minutes taken in August 2026, demonstrated that halting the quarry activities of the 4th respondent negatively aected the community’s economic interests. The applicant did not allege that Rev. John Kadima and the community could not be accessed at the time of the impugned ruling. In any case, the minutes presented by Reverend Kadima were prepared in August 2026, after delivery of the impugned ruling. Therefore, both the forensic report and the minutes by the community did not exist as at the time of the impugned ruling. Both evidences were created after the impugned ruling. My understanding of the provisions of Order 45 Rule 1 is that the new and important evidence ought to have been in existence as at the time of the decision sought to be reviewed, however, for some cogent reason, the applicant was not aware of the evidence or he could not avail it despite exercise of due diligence. 77. I understand the applicant to be stating that when this court made the impugned decision, there was a total scientic vacuum and the court relied on the precautionary principle because what the petitioners presented to the court were merely unveried theoretical fears. That now, he has found new evidence, which he wishes to apply so as to displace the court’s application of the precautionary principle and ll the scientic vacuum. 78. He is in essence stating that at the hearing of the application for conservatory orders, there was no necessity for him to contest the facts as presented by the petitioners, but now, he has found new evidence to counter the impugned ruling. I am clear in my mind that the legal principles that underpin review would frown against such this approach by the applicant, where a party creates new evidence to challenge the ndings and conclusions made by the court, which, is nothing more than seeking a second bite at the cherry, but this time with newly created evidence. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5420/eng@2026-09-03 15

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79. Clearly, the reports on forensic analysis regarding the quarry by the two engineers as well as the evidence of Rev. John Kadima did not exist at the time of the impugned ruling but was created for purposes of lling the gaps and mending the weakness of the applicant’s case. It is merely a disguised attempt by the applicant to le a replying adavit in response to an application which was heard inter partes, determined on merit and has been disposed of. Just like all the parties in this matter, the applicant had the opportunity to le a replying adavit or seek more time to obtain scientic evidence and le a replying adavit, but chose not to do so. 80. His argument that the court gave strict timelines and there was no time to commission a scientic analysis regarding the issues raised by the petitioners is a mere clutch at straws and incapable of assisting the applicant in these circumstances. He has no one else to blame but himself. In the premises, I nd and hold that the applicant has failed to demonstrate that as at the time of delivery of the impugned ruling, there existed new and important evidence which he had no knowledge of and which could not be availed upon exercise of due diligence. 81. I now turn to the question as to whether the applicant demonstrated any other sucient reason to warrant review of the impugned orders. In this regard it was the applicant’s case that the conservatory orders issued on 29th July 2026, exceptionally prejudiced him to the extent that while he is the vendor of the property upon which the 4th respondent was undertaking quarrying activities, that transaction is incomplete and that he is unable to receive the balance of the purchase price. 82. In addition, in urging this court to vacate the impugned conservatory orders, the applicant faulted the court’s ruling and maintained that the conservatory orders eectively transformed his lawful property into a commercial dead weight burdening him with the risk of asset depreciation, security overheads and litigation costs, while the 4th respondent’s conditional right to operate is completely extinguished on the basis of unveried scientic premise and theoretical fears. He challenged the decision of the court arguing that it was wrong for the court to rely on the precautionary principle, and therefore the court should correct that position by allowing him to produce new specic scientic evidence which will suciently displace the foundation of the impugned ruling. 83. The applicant asserted that the quarry is a vital socio-economic anchor in the region and a source of clean piped water, road maintenance and nancial aid to the community and that the court reached the impugned ruling without the benet of appreciating the full factual impact of the conservatory orders which resulted in a negative impact on the community. 84. He faulted the ruling arguing that it failed to demonstrate proportionate balance between environmental protection and economic development. He further did not agree with the ruling on the basis that it obstructed the regulatory mandate of NEMA as well as the Ministry of mining and violated the principle of separation of powers and the doctrine of ripeness thus, frustrating public interest by delaying the state in providing aordable housing. According to him, the right thing for this court to do is to allow the 4th respondent to operate the quarry under statutory supervision or order a court-supervised plan with real time vibration tracking which will be a win-win situation for both the petitioners and the environment on one hand and the 4th respondent and the applicant on the other hand. 85. I have considered the above arguments. On the applicant’s assertions on the consequences of the impugned orders including allegations that he has suered exceptionally severe prejudice; that this court failed to proportionally balance between environmental protection and economic progress; that the court obstructed the mandate of NEMA and the Ministry of Mining thus failing at the doctrine of separation of powers and that the court failed to take into account public interest, in my view, do https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5420/eng@2026-09-03 16

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not meet any of the conditions for grant of review under Order 45 Rule 1, and more particularly, the ground of “any other sucient reason”, but may constitute grounds of appeal as they challenge the reasoning of the court. 86. The allegation that the conservatory orders would cause economic harm to the local community, and the readiness of the applicant and the 4th respondent to avail a cash-backed performance guarantee or bank bond of Kshs. 1, 462, 640/=, as well as the question of ripeness, are matters that the applicant ought to have raised before the inter partes hearing of the application for conservatory orders, by ling a replying adavit and cannot be raised at this stage, as the local community did not begin to exist after delivery of the impugned ruling and the question of damages in the sum of Kshs. 1, 462, 640/ = was right there before all the parties and the court at the inter partes hearing of the application for conservatory orders. 87. In addition, if the dispute in this matter was not ripe to be presented in court, nothing stopped the applicant from stating as much, during the inter partes hearing of the application for conservatory orders. It is too late in the day for him to raise these matters now. Therefore, there is no any other sucient reason upon which this court may review and or vacate or set aside the conservatory orders issued on 29th July 2026. 88. For the reasons given above, I nd no merit in the application dated 13th August 2026, which I hereby dismiss with costs to the petitioners. 89. It is so ordered. conclusions DATED, SIGNED AND DELIVERED AT KAKAMEGA VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 3RD DAY OF SEPTEMBER, 2026 A. NYUKURI JUDGE In the presence of; Mr. Ogonda for the 2nd interested party Mr. Odhiambo for the 4th respondent Ms Sang and Mr. Odiwuor holding brief for Mr. Ochieng SC for the petitioners Court Assistant- P. Olum https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5420/eng@2026-09-03 17

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