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

undertaking excavation, blasting, crushing, transport of materials, or in any manner whatsoever commencing quarry activities on Land parcel No. Naivasha/Maraigushu Block 10/7146. 2. In response to the said Application and pursuant to ex parte interim orders having been granted to the effect that no adverse activities shall be carried out on the said suit parcel of land, the 1 st Respondent filed their Notice of Preliminary Objection dated 2 nd June 2026 and their formal application via a Notice of Motion dated the 15 th June 2026 brought under the provisions of Articles 40, 50 and 159 of the Constitution, Sections IA, IB, 3A, Order 51 Rule 1, Order 51 Rule 4 of the Civil Procedure Rules, Section 129 of the Environmental Management and Coordination Act, Section 78 of the Physical and Land Use Planning Act and all enabling provisions of the law where they sought for the Court to declare that it lacks jurisdiction to hear and determine this matter as the subject matter concerned the issuance of an Environmental Impact Assessment license by the 2nd Defendant and the approval on change of use of land issued by 3 rd Defendant to the 1st Defendant. 3. That the jurisdiction to hear and determine matters on issuance of an EIA license fell within the National Environmental Tribunal as provided for under Section 129 of the Environmental Management and Coordination Act. 4. That additionally, the County Physical and Land Use Planning Liaison Committee had the authority to hear and determine the Plaintiffs’ complaints on the county planning approvals, development control and change of user permissions as provided for under Section 78 of the Physical and Land Use Planning Act, 2019, Cap 303 of the Laws of Kenya. 5. That by filing the matter before the Court, the Plaintiffs had failed to exercise the Doctrine of Exhaustion of Remedies. 6. The Application was supported by the grounds therein and the Sworn Affidavit, of an equal date, by Arif Yasin Khan, the Human Resource Manager and the Project Director of the Applicant, who deponed that NAIVASHA ELCLC No. E028/2026 RULING Page 2 of 15

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he was authorized to swear the affidavit on behalf of the Applicant and is familiar with the facts of the suit. 7. He recounted the Plaintiffs’ claim to the effect that the Plaintiffs sought a permanent injunction to stop the 1 st Defendant from conducting quarrying activities on Land Parcel No. Naivasha/Maraigushu Block 10/7146 (including entry, excavation, blasting, and transport). That the Plaintiffs also sought to stop the 2nd, 3rd, and 4th Defendants from issuing or recognizing any EIA licenses, quarry permits, or change-ofuser approvals, and also sought a declaration that any licenses/approvals granted without public participation were null and void and should be quashed. 8. The 1st Respondent then deposed that the Environmental Impact Assessment (EIA) Licensing fell under the statutory jurisdiction of the National Environmental Tribunal (NET) pursuant to Section 129 of EMCA, while complaints regarding county development approvals fell under the jurisdiction of the County Physical and Land Use Planning Liaison Committee under Section 78 of the Physical and Land Use Planning Act, 2019. 9. He argued that the suit was barred because the Plaintiffs failed to exhaust available statutory dispute resolution mechanisms before seeking High Court/Environment and Land Court intervention. Finally, he sought costs of the Application. 10. In response to the Preliminary Objection, the Applicants, vide their replying affidavit dated 1st July 2026, sworn by Wilson Kirungo Njenga (1st Plaintiff/Applicant) deponed that at the time the suit was filed on 17th April 2026, and first placed before the court on 18th April 2026, National Environment Management Authority (NEMA) had not issued any Environmental Impact Assessment (EIA) License. Consequently, there was no administrative decision to appeal under Section 129 of the Environmental Management and Co-ordination Act (EMCA), leaving the Plaintiffs with no statutory remedy to exhaust before the National Environment Tribunal (NET). NAIVASHA ELCLC No. E028/2026 RULING Page 3 of 15

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11. That the suit had been instituted under Articles 42, 69, and 70 of the Constitution to prevent threatened environmental degradation and protect the constitutional right to a clean and healthy environment, wherein citizens are not required to wait for actual damage to occur before seeking court intervention. 12. Further, their claims raise broad constitutional, environmental, and land-use questions that extend beyond the mere issuance of an EIA licence, where NET lacked the jurisdiction to decide constitutional questions or grant the full suite of remedies sought in the Plaint. 13. They argued that dismissing or striking out the suit would deny them access to justice, asserting that the 1st Defendant’s objection was merely an attempt to delay the substantive hearing and should be dismissed with costs. 14. The 2nd Respondent opted not to take part in the Application wherein there was no response from the 3rd and 4th Respondents. 15. By consent, the Application was disposed of by way of written submission wherein the 1st Respondent’s written submission dated 6 th July 2026 in support of its Preliminary Objection was to the effect that the Plaintiffs’ dispute stemmed entirely from the Environmental Impact Assessment (EIA) license and the Change of User permit issued for Land Parcel No. Naivasha/Maraigushu Block 10/7146. Therefore, the specific statutory bodies created to handle them should hear the grievances. 16. They submitted that the court was an improper forum for EIA complaints, stating that challenges to the granting, processing, or approval of an EIA licence belonged exclusively to the National Environment Tribunal (NET). They further submitted that the court was an improper forum for land-use complaints, as such complaints regarding county planning approvals, development control, and change-of-use permissions fell within the mandate of the County Physical and Land Use Planning Liaison Committee. 17. The 1st Respondent/Defendant contended that the Plaintiffs cannot bypass statutory remedies merely by framing their pleadings as NAIVASHA ELCLC No. E028/2026 RULING Page 4 of 15

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constitutional issues or environmental circumstances were shown to justify threats, bypassing as no exceptional statutory dispute resolution channels. 18. They cited Section 129 of the Environmental Management and Coordination Act (EMCA) to set out NET’s appellate jurisdiction over decisions on the grant, refusal, revocation, transfer, or variation of environmental licences and permits, with appeals to be filed within 60 days of the decision. 19. They further cited Section 78 of the Physical and Land Use Planning Act, 2019, to submit that this provision grants the County Physical and Land Use Planning Liaison Committee authority to hear and determine complaints, claims, and appeals relating to planning applications, development control, change of use, and enforcement notices. 20. The 1st Respondent then cited the Supreme Court’s decision in Benard Murage v. Fine Serve Africa Limited & Others [2015] eKLR, which reaffirmed the Doctrine of Exhaustion, holding that where an alternative remedy exists under statutory law, that statutory remedy must be pursued first. 21. Citing the Court of Appeal’s decision in Speaker of the National Assembly v. James Njenga Karume [1992] eKLR, they submitted that it had been established that where a specific procedure is prescribed by the Constitution or a statute for redressing a grievance, that procedure must be strictly followed and exhausted before invoking the jurisdiction of the courts. 22. With this in mind, the 1st Respondent/Defendant prayed that the Court find that it lacks jurisdiction, hold that the suit was prematurely filed, and dismiss the Plaintiffs’ suit with costs. 23. On the other hand, vide their submissions dated 8th July 2026, in opposition to the 1st Defendant’s notice of Preliminary Objеction the Plaintiffs’ submissions were hinged on whether the Court had jurisdiction at the time the proceedings were commenced, and whether the suit is barred by the Doctrine of Exhaustion of Remedies. NAIVASHA ELCLC No. E028/2026 RULING Page 5 of 15

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24. The key arguments raised by the Plaintiffs were that no statutory remedy existed at the commencement of the suit, and that at the time of filing, and again on 18th April 2026 when the matter was first before the court, no EIA Licence had been issued by NEMA. 25. That Section 129 of EMCA conferred appellate jurisdiction on the National Environment Tribunal (NET) to review decisions already made and therefore without a prior NEMA decision/licence, there was no administrative act to appeal and no statutory remedy capable of exhaustion. 26. They argued that jurisdiction vests at the commencement of proceedings and is determined on that date. A subsequently acquired EIA licence could therefore not retrospectively divest the court of jurisdiction that had already properly vested. That accepting the 1st Defendant’s position would allow project proponents to defeat pending environmental suits by hurriedly procuring licences post-filing. 27. They submitted that Article 70 of the Constitution explicitly permits direct recourse to the Court where environmental rights under Article 42 are threatened (preventative litigation) and therefore litigants need not wait for actual environmental degradation to occur. They relied on the Supreme Court’s decision in Communications Commission of Kenya & 5 Others v. Royal Media Services Ltd & 5 Others [2014] eKLR, where the Supreme Court had held that while statutory exhaustion is generally favoured, exceptions exist where constitutional questions are raised or where statutory mechanisms are inadequate or unavailable. 28. They also relied on the Court of Appeal’s decision in Krystalline Salt Limited v. Kenya Revenue Authority [2019] eKLR, which affirmed that the doctrine of exhaustion is not absolute and that courts may entertain direct applications in exceptional circumstances. 29. That since the suit raises broad constitutional questions regarding environmental governance, public participation, and land use under Articles 42, 69, and 70, NET lacked jurisdiction to hear such NAIVASHA ELCLC No. E028/2026 RULING Page 6 of 15

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constitutional questions or grant declaratory and constitutional remedies. 30. They relied on the holding in Mukisa Biscuit Manufacturing Co Ltd v. West End Distributors Ltd [1969] EA 696 to argue that a Preliminary Objection must raise a pure point of law on undisputed facts. In this case, determining whether an EIA licence existed at the time of filing, whether remedies were available, or whether exceptional circumstances existed all required factual and evidential enquiry, thereby rendering the objection procedurally incompetent. 31. It was their submission that the Environment and Land Court derives direct authority under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act to determine land use and environmental protection disputes. 32. Finally, the Plaintiffs sought the dismissal of the 1st Defendant’s Notice of Preliminary Objection/Application with costs. Determination. 33. I have thus considered the Plaintiffs’ Application, the 1 st Respondent’s Preliminary Objection and subsequent response thereto, the submissions, the authorities cited, as well as the applicable law. In summary, the Plaintiffs instituted this suit to prevent threatened environmental degradation and protect their constitutional right to a clean and healthy environment in respect of Land Parcel No. Naivasha/Maraigushu Block 10/7146, where the 1 st Defendant had established and operated a quarry. 34. The Plaintiffs thus sought orders of Permanent Injunctions restraining the 1st Respondent from entering the land, mobilizing machinery, excavating, blasting, crushing, transporting materials, or commencing quarrying activities; and restraining the 2nd, 3rd, and 4th Defendants from processing or issuing any EIA licenses, quarry permits, or land use approvals. They also sought declaratory Orders that any change of user, EIA license, or quarry authorization issued without public participation NAIVASHA ELCLC No. E028/2026 and full RULING legal compliance Page 7 of 15 is

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unconstitutional, unlawful, null, and void, and lastly, an order of revocation, quashing and setting aside any regulatory approvals or licenses already issued in respect of the intended project. 35. In response, the 1st Respondent filed a Preliminary objection, contending that the Environment and Land Court (ELC) lacked jurisdiction to hear and determine the Plaintiffs’ suit because the suit was filed prematurely in direct violation of the Doctrine of Exhaustion of Remedies. 36. The 1st Respondent therefore sought a declaratory order that the Court lacks jurisdiction to entertain the suit, and sought an order to strike out or dismiss the Plaintiffs’ suit with costs. 37. The Plaintiffs’ response to the Preliminary objection was that they had approached the Environment and Land Court (ELC) under Articles 42, 69, and 70 of the Constitution, which explicitly guarantee direct access to the courts to prevent threatened or imminent violations of environmental rights without waiting for damage to occur. 38. That when the suit was instituted on 17 th April 2026, NEMA had not issued an Environmental Impact Assessment (EIA) license and because Section 129 of EMCA only confers appellate jurisdiction on the National Environment Tribunal (NET) for decisions already made, there was no existing administrative decision to appeal and no statutory remedy available to exhaust. 39. They further contended that their suit raises broad constitutional, land-use, and governance issues (including lack of public participation) that exceed the scope of an administrative license appeal for which NET lacked the jurisdiction to determine constitutional questions or grant declaratory and injunctive relief. 40. Finally, they contended that Jurisdiction is determined at the commencement of the suit and cannot be retrospectively divested by post-filing approvals. Furthermore, the 1 st Respondent’s preliminary objection relied on disputed factual matters, violating the rule in Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd. NAIVASHA ELCLC No. E028/2026 RULING Page 8 of 15

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41. Having summarised the case as it is before the Court, I find the issues that stand out for determination as follows: i. Whether the Doctrine of Exhaustion of Remedies Applies to Bar the Court’s Jurisdiction. ii. Whether the 1st Respondent’s/Defendant’s Preliminary Objection should be sustained. 42. The question of whether the Doctrine of Exhaustion of Remedies operates to bar the Environment and Land Court’s (ELC) jurisdiction turns on the interplay between statutory administrative mechanisms and constitutional jurisdiction. 43. The doctrine of exhaustion was aptly captured by the Supreme Court in Benjamin v Attorney General & 55 others [2026] KESC 5 (KLR), where the Supreme Court had held as follows: “... Our reading of the impugned Ruling and Judgments of the trial court and appellate court respectively, reveal that this Court’s decision in the case of Albert Chaurembo Mumba & 7 Others Vs Maurice Munyao & 148 Others (supra) on the doctrine of exhaustion was taken as a blanket bar to preclude litigants from pursuing constitutional petitions where alternative statutory procedures are provided. Indeed, Article 159(2)(c) of the Constitution mandates alternative dispute the resolution Courts to promote mechanisms. In the Chaurembo Case, this Court held that, where there exists an alternative method of dispute resolution established by legislation, the courts must exercise restraint in exercising their jurisdiction conferred by the Constitution and must give deference to the dispute resolution bodies established by statutes with the mandate to deal with such specific disputes in the first instance. In particular, the Court stated as follows:118.In the pursuit of such sound legal principles, it is our NAIVASHA ELCLC No. E028/2026 RULING Page 9 of 15

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disposition that disputes disguised and pleaded with the erroneous intention of attracting the jurisdiction of superior courts is not a substitute for known legal procedures. Even where superior courts had jurisdiction to determine profound questions of law, first opportunity had to be given to relevant persons, bodies, tribunals or any other quasi-judicial authorities and organs to deal with the dispute as provided for in the relevant parent statute.” [Emphasis ours] The question of the appropriateness of a forum between the Courts and a statutory dispute resolution mechanism also arose in the case of Adega & 2 others v Kibos Distillers Limited [2020] KESC 36 & (KLR). 5 others (Petition In that case, 3 of this 2020) Court in determining whether it had jurisdiction to hear the appeal or not, was confronted with the central issue of the Environment and Land Court’s (ELC) general competence to determine constitutional questions, and whether the ELC had taken on powers that the Environmental Management and Coordination Act reserved for other statutory bodies. The Court went on to find that it did not have jurisdiction to entertain the appeal as there was minimal reference to the Constitution, as the decisions of the superior courts below were primarily on an interrogation and adjudication of statutory provisions....” 44. As established by the Supreme Court, where a statute establishes a specific dispute-resolution process, that mechanism must ordinarily be pursued and exhausted before resorting to the courts. 45. Section 129 of the Environmental Management and Co-ordination Act (EMCA) establishes the National Environment Tribunal (NET), while Section 78 of the Physical and Land Use Planning Act (PLUPA) establishes the County Physical and Land Use Planning Liaison NAIVASHA ELCLC No. E028/2026 RULING Page 10 of 15

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Committee with an objective to allow specialised administrative bodies with technical expertise to resolve disputes before the court intervenes. 46. Section 129 of the Environmental Management and Co-ordination Act specifically governs appeals to the National Environment Tribunal (NET), where it confers specialized appellate jurisdiction on NET to hear grievances arising directly from administrative decisions made by NEMA (or its Director-General/Committees). 47. This provision is specific to the effect that an aggrieved person may appeal to NET regarding the grant, refusal, or transfer of a licence or permit (e.g., an Environmental Impact Assessment licence), the imposition of any conditions, limitations, or restrictions on a licence, the revocation, suspension, or variation of a licence, the amount required to be paid as a fee under the Act, and the issuance of an environmental restoration order or environmental improvement order. It also provided that an appeal must be lodged within sixty (60) days from the date the event/decision occurred. 48. Section 129(3) is specific on the powers of the Tribunal to the effect that upon hearing an appeal, NET has the statutory power to confirm, set aside, or vary NEMA’s order or decision, exercise any administrative powers that NEMA itself could have exercised in the original proceedings, and issue orders maintaining the status quo of any activity under appeal until the appeal is determined. 49. The Tribunal therefore exercises appellate jurisdiction wherein there must be a pre-existing decision (e.g., the grant, refusal, or revocation of an EIA licence). This means that if NEMA or the County had not granted an EIA licence or planning permit at the time of filing suit, NET’s jurisdiction under Section 129 had not been triggered, as there had been no administrative decision to appeal, leaving no statutory remedy available for the Plaintiffs to exhaust at the time of filing. 50. The plain text of Section 129 confirms that NET’s jurisdiction is appellate. It is conditionally triggered by a concrete administrative decision already rendered by NEMA. Where NEMA has made no NAIVASHA ELCLC No. E028/2026 RULING Page 11 of 15

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decision, there is no order to appeal, no decision to stay, and no statutory remedy. A litigant cannot be required to exhaust a remedy that does not exist. 51. Jurisdiction is established at the time proceedings are filed. If no EIA licence existed as at the 17 th April 2026 when the suit was filed, the Plaintiffs had no statutory recourse under Section 129 of EMCA on that date. The 1st Respondent cannot therefore defeat a pending court process by subsequently procuring an administrative licence and applying statutory exhaustion rules retrospectively. Allowing such a practice would permit developers to evade judicial oversight simply by rushing administrative approvals mid-litigation. 52. Indeed, under Articles 42 and 70 of the Constitution of Kenya (2010), any person alleging that the right to a clean and healthy environment is threatened has direct Constitutional Recourse for Threatened Violations to the Environment and Land Court, and since Environmental law is fundamentally preventative, litigants are not required to wait for heavy machinery to mobilize, blasting to commence, or actual environmental degradation to occur before seeking protection and/or intervention to halt imminent harm. 53. The doctrine of exhaustion is not absolute, especially where the internal/statutory remedy is unavailable, inadequate, or non-existent or where primary constitutional questions, such as rights under Articles 42, 69, and 70 of the Constitution, are raised. The Plaintiffs brought a claim grounded on threatened constitutional violations, seeking permanent injunctive and declaratory relief and /or remedies that extend beyond the administrative appellate scope of NET or the County Liaison Committee. 54. This Court derives direct constitutional authority under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act to adjudicate disputes relating to environmental protection and land use. 55. I therefore find that while the Doctrine of Exhaustion enforces procedural discipline, it does not oust the Environment and Land NAIVASHA ELCLC No. E028/2026 RULING Page 12 of 15

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Court’s jurisdiction where no statutory decision had been made prior to suit or where the suit primarily invokes direct constitutional remedies to prevent threatened environmental harm. The Court finds that it properly invoked its jurisdiction. 56. On the second issue for determination, a Preliminary Objection according to the decided case by the Court of Appeal in the case of Mukisa Biscuits Manufacturing Co. Ltd –v- West End Distributors Limited (1969) EA. 696 was stated to be thus: “So far as I am aware, a Preliminary Objection consists of a 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. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.” 57. It is evident that a Preliminary Objection consists of pure points of law, and it is also capable of bringing the matter to an end preliminarily. Such an objection must be argued on the assumption that all facts pleaded by the opposite party are correct, and it cannot be raised if any fact has to be ascertained or if what is sought requires the exercise of judicial discretion. 58. The Supreme Court in the case of Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 others [2015] eKLR observed as follows: “… The true preliminary objection serves two purposes of merit: firstly, it serves as a shield for the originator of the objection—against profligate deployment of time and other resources. And secondly, it serves the public cause, of sparing scarce judicial time, so it may be committed only to deserving cases of dispute settlement. It is distinctly improper for a party to resort to the preliminary objection as a sword, for winning a NAIVASHA ELCLC No. E028/2026 RULING Page 13 of 15

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case otherwise destined to be resolved judicially, and on the merits.” 59. The 1st Respondent asserts that the objection raises a pure, threshold question of law, which is Jurisdiction under the Doctrine of Exhaustion, wherein they relied on statutory provisions under Section 129 of EMCA (appeals to the National Environment Tribunal) and Section 78 of the Physical and Land Use Planning Act (PLUPA) (appeals to the County Liaison Committee) to submit that since an administrative decision existed to be appealed to NET, the suit was barred because the Plaintiffs failed to exhaust available statutory dispute resolution mechanisms before seeking Environment and Land Court intervention. 60. The Plaintiffs argue that the objection violates the core tenets of Mukisa Biscuit because it is deeply entangled with contested factual issues that require evidence to resolve because at the time of filing the suit on 17th April 2026, which suit involves an EIA licence and planning permission for quarry activities, which statutorily fall under specialized administrative tribunals, NEMA had not issued an Environmental Impact Assessment (EIA) license and because Section 129 of EMCA only confers appellate jurisdiction on the National Environment Tribunal (NET) for decisions already made, there was no existing administrative decision to appeal and no statutory remedy available to exhaust. 61. I find that determining whether an EIA licence was issued before or after filing of the suit is a question of fact that cannot be determined on the face of the Preliminary Objection alone. Secondly, establishing whether the Plaintiffs fall within the exceptions to the Doctrine of Exhaustion, whether the statutory remedy was unavailable, or whether fundamental rights under Article 42 and 70 of the Constitution were threatened, also requires factual inquiry and evidence. 62. A Preliminary Objection must accept the Plaintiff’s pleaded facts as correct. Here, the 1st Respondent/Defendant asks the court to NAIVASHA ELCLC No. E028/2026 RULING Page 14 of 15

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disregard the Plaintiffs’ pleaded fact that no EIA decision existed when the suit commenced. 63. I find that while the Doctrine of Exhaustion is a recognized legal principle, raising it via a Preliminary Objection fails under Mukisa Biscuit (supra) if the underlying facts, specifically the existence of an appealable administrative decision at the date of filing, are disputed. Because establishing whether a statutory remedy was available on 17 th April 2026 requires factual verification, the objection goes beyond a pure point of law. 64. Consequently, I dismiss with costs the Preliminary Objection as procedurally incompetent and direct that the jurisdictional issue be determined alongside the main suit upon submission of evidence. It is so ordered. Dated and delivered via Microsoft Teams at Naivasha this 1st day of October 2026. M.C. OUNDO ENVIRONMENT & LAND COURT– JUDGE NAIVASHA ELCLC No. E028/2026 RULING Page 15 of 15

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