Joseph Mikimueri Ming'anyi John Obala Ajero & Another v Keda Ceramics International Company Limited

parcel No. Kaksingri/Kagutu/Waregi/669 and adjacent parcels Nos. 271 and 273, pending the hearing and determination of the petition. 2. The Petitioners, residents of Manyala Village, Suba South Sub-County (RumaKaksingiri East Ward) within Homa Bay County, approached this Court via a Constitutional Petition and a Notice of Motion both dated 12 th August 2026. They contend that the Respondent, Keda Ceramics International Company Limited, commenced heavy excavation, quarrying, and extraction of ceramicrelated minerals on land parcel No. Kaksingri/Kagutu/Waregi/669 on or about 7th August 2026 without public participation. They allege that these unmitigated activities have caused profound environmental degradation, severe air and noise pollution, destruction of vegetation, open dangerous pits, water contamination, encroachment upon neighboring parcels (Nos. 271 and 273) and road reserves, and direct risks to the health, safety, and livelihoods of the local community. 3. The Petitioners invoke Articles 10(2)(b), 26(3), 29(f), 40, 42, 43(1)(d), 47, 69, 70, and 232(1)(c) of the Constitution of Kenya, 2010, alongside Section 4 of the Water Act, the common law doctrine of Rylands v. Fletcher, and the PolluterPays Principle. 4. The Respondent vehemently opposes the Application. Through the Replying Affidavit sworn by Horace Ouma Amolo, a Strategy Sourcing Buyer holding a B.Sc. in Geology from the University of Nairobi, the Respondent maintains that its operations are fully lawful and conducted pursuant to EIA Licence No. NEMA/EIA/PSL/18339 issued by the National Environment Management Authority (NEMA) on 4th April 2022 following comprehensive stakeholder consultation on 1st February 2022. The Respondent asserts that its operations involve the mechanical excavation of soft soil by means of excavators and 2|Page HOMA BAY ELC CONS. NO. E002 OF 2026 – RULING ON P.O

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hauling trucks, without the use of blasting, explosives, or chemical extraction processes. Furthermore, an annual environmental audit report was submitted to NEMA on 30th July 2026 (Ref: NEMA/ENVIS/EA/13439), and operations have at all times been strictly confined to parcel No. 669 without encroaching on parcels 271 and 273. 5. Procedural History and Default in Compliance When the matter was initially placed before the duty court under vacation rules, vide formal Court Directions dated 13th August 2026 the court declined to certify the Notice of Motion urgent. Instead, the court directed that the application be disposed of through written submissions, fixing strict timelines for exchange and setting the virtual ruling date. 6. A review of the court record reveals that the Petitioners failed to file their written submissions within the stipulated 7-day window. Despite this default, the Court is obligated in the interest of substantive justice and under Article 159(2)(d) of the Constitution to address the core legal questions raised through the pleadings, affidavits, and applicable law on record. 7. Issues for Determination From the comprehensive pleadings and judicial record, the following issues crystalize for determination: a) Whether the Notice of Preliminary Objection dated 22nd August 2026 is competent notwithstanding that it is unsigned. b) Whether the Petitioners are barred by the doctrine of exhaustion of statutory remedies and whether this Court lacks first-instance jurisdiction. c) Whether the Petitioners have satisfied the legal threshold for the grant of conservatory orders. 8. Detailed Legal Analysis and Findings. 3|Page HOMA BAY ELC CONS. NO. E002 OF 2026 – RULING ON P.O

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i) Competence of the Preliminary Objection: The Unsigned Pleading Dilemma and Comparative Jurisprudence A Preliminary Objection is strictly a creature of law that must satisfy the well-established threshold laid down in Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd [1969] EA 696, requiring it to be a pure point of law pleaded on assumed undisputed facts, without inviting the court to weigh conflicting evidence. 9. However, a foundational procedural defect arose on the face of the record: the Respondent's Notice of Preliminary Objection is unsigned. 10.Under Order 2 Rule 16 of the Civil Procedure Rules, every pleading must be signed by an advocate, a recognized agent, or the party acting in person. In the case of Lucy Ougo & 3 Others v. County Government of Nairobi & Another [2021] eKLR, the Court has reiterated that an unsigned pleading is procedurally defective because the requirement of a signature is designed to establish ownership, authenticity, and professional legal accountability. 11.This procedural tenet is strongly echoed across comparative Commonwealth jurisdictions. In Indian jurisprudence, under Order VI Rule 14 of the Civil Procedure Code (CPC), 1908, pleadings must be duly signed to fix legal responsibility. The Supreme Court of India in Uday Shankar Triwarhi v. Ram Kalp Prasad Tiwari (2005) 3 SCC 124 and Smt. Vidyawati v. Manphul & Others AIR 2001 SC 183 affirmed that while minor procedural omissions can sometimes be cured to serve justice, the signature requirement remains a vital gatekeeping mechanism to prevent anonymous, unauthenticated, or unauthorized filings. Similarly, in Zambian practice and civil procedure rules, superior courts have consistently ruled—as seen in cases like Attorney-General v. Marcus 4|Page HOMA BAY ELC CONS. NO. E002 OF 2026 – RULING ON P.O

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Kachingwe [2003] Z.R. and Byrne v. Kanweka [1967] ZR 82—that originating and interlocutory processes emanating from legal practitioners must bear the requisite signatures to legally bind the author and establish professional accountability before the court. This Court therefore finds and holds that; The Notice of Preliminary Objection dated 22nd August 2026, being unsigned, is procedurally incompetent and is struck out for want of signature. B. Submissions on the Preliminary Objection and the Doctrine of Exhaustion 12.In evaluating the procedural viability of the Respondent’s Preliminary Objection dated 22nd August 2026, the Court gave due consideration to the written and oral submissions advanced by counsel for the Respondent. a) The Respondent’s Submissions: Counsel for the Respondent forcefully contended that the Preliminary Objection raised pure points of law capable of disposing of the suit at the threshold stage, specifically invoking the doctrines of exhaustion of administrative remedies and judicial abstention. Relying on the statutory architecture of the Environmental Management and Co-ordination Act (EMCA, Cap 387), the Respondent submitted that grievances concerning environmental compliance, mitigation measures, dust emission, and noise pollution fall squarely within the primary regulatory purview of the National Environment Management Authority (NEMA) and the specialized appellate framework of the National Environment Tribunal (NET). Citing the Supreme Court dictum in Benson Ambuti Adega & 2 Others v. Kibos Distillers Limited & 5 Others [2020] KESC 36 (KLR), the Respondent urged the Court to downscale judicial intervention and defer to specialized 5|Page HOMA BAY ELC CONS. NO. E002 OF 2026 – RULING ON P.O

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administrative mechanisms, maintaining that the petitioners' suit was fundamentally premature and in direct violation of the exhaustion doctrine. C. Judicial Evaluation and Comparative Analysis on Exhaustion: 13.While acknowledging the force of the Respondent’s submissions regarding the importance of regulatory bodies under EMCA, the Court has undertaken a broader comparative review of the exhaustion doctrine. i) As established by the Constitutional Court of South Africa in Koyabe and Others v Minister for Home Affairs and Others 2010 (4) SA 327 (CC) and analyzed in Cora Hoexter’s Administrative Law in South Africa, the exhaustion doctrine promotes administrative efficiency but is not an absolute ouster of judicial power, particularly where direct constitutional rights are under imminent threat. ii) Similarly, Ugandan jurisprudence in Attorney General v. Osotraco Ltd [2004] KALR affirms that where a dispute transcends ordinary administrative grievances and strikes at fundamental rights or statutory breaches, courts retain original jurisdiction when internal remedies are inadequate. iii) Synthesizing these principles with Kenyan jurisprudence (Geoffrey Muthinja Kabiru v. Samuel Munga Henry [2015] and Benson Ambuti Adega), the doctrine of exhaustion is not a rigid procedural trap designed to defeat substantive justice. The Petitioners do not appeal an administrative decision of NEMA; rather, they invoke direct constitutional enforcement under Article 70 to restrain ongoing, imminent environmental threats. Respectfully in my view the submissions canvassed by the Respondent on 6|Page HOMA BAY ELC CONS. NO. E002 OF 2026 – RULING ON P.O

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the doctrine of exhaustion, while correctly highlighting the need for administrative harmony, were neutralized by the fatal procedural nullity of an unsigned pleading, leaving the Court with full constitutional competence to entertain the matter at first instance. D. Threshold for Granting Conservatory Orders, the Prima Facie Case, i. The Precautionary Principle, and Proportionality Having established jurisdiction, the Court evaluated whether the Petitioners met the threshold for conservatory orders. Conservatory orders are distinct public-law remedies designed to uphold court authority and ensure orderly public-law governance, distinct from private-law interlocutory injunctions (Gatirau Peter Munya v. Dickson Mwenda Kithinji & 2 Others [2014] eKLR). 14.The Prima Facie Case and Constitutional Threshold: i) Under the principles governing public-law conservatory relief, an applicant must demonstrate an arguable prima facie case with a probability of success, raising serious triable issues for judicial determination. ii) The Petitioners pleaded serious environmental concerns—such as open pits, dust, noise, water pollution, and health hazards—which directly engage the right to a clean and healthy environment under Article 42. iii) Furthermore, by virtue of Article 70(3) of the Constitution, which expressly provides that an applicant need not demonstrate that another person has incurred loss or suffered injury, the Petitioners successfully crossed the initial legal threshold to disclose an 7|Page HOMA BAY ELC CONS. NO. E002 OF 2026 – RULING ON P.O

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arguable constitutional question. 15.Evidentiary Deficit vis-à-vis the Prima Facie Standard: i) However, establishing an arguable abstract pleading is distinct from discharging the evidentiary burden required to sustain a drastic interim injunction. While a prima facie case does not require a party to establish a case beyond doubt, it demands a minimum threshold of supporting proof. The Court therefore observes a critical evidentiary failure: the supporting affidavit contained no annexures, exhibits, technical reports, or expert evidence to substantiate the claims of active contamination, medical risks, or boundary encroachment onto parcels 271 and 273. ii) Conversely, the Respondent countered with the existence of a valid 2022 EIA licence and a July 2026 environmental audit report submitted to NEMA. In the face of sworn, competing factual assertions unsupported by independent or technical verification, the Petitioners' prima facie case remained at the level of bare allegations, which is insufficient to tilt the scales in favor of interim restraint. 16.The Precautionary Principle and Evidentiary Boundaries: i) The Court is statutorily guided by the Precautionary Principle under Section 3(5) of EMCA and Section 18 of the Environment and Land Court Act, which trace their roots to Principle 15 of the 1992 Rio Declaration on Environment and Development. ii) As affirmed in local jurisprudence such as Odando & Another v. National Environment Management Authority & 2 Others [2021] KEELC 2235 and Wemali v. Rhombus Concrete Limited [2024] KEELC 1808, the precautionary principle dictates that where there are threats of serious or irreversible environmental damage, a lack of full scientific certainty shall 8|Page HOMA BAY ELC CONS. NO. E002 OF 2026 – RULING ON P.O

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not be used as a reason for postponing cost-effective measures to prevent environmental degradation. iii) However, as elaborated in environmental law treatises and jurisprudence, the precautionary principle does not operate as a blank check to shut down lawful operations upon bare, unverified assertions. While absolute scientific proof of irreversible harm is not a precondition for interim relief, the applicant must still establish a credible, imminent, and actual threat rather than remote or fictitious dangers (Moses Kipkoech Rotich v. Kenya National Highways Authority & 7 Others [2017] KEHC 2765). 17.The Principle of Proportionality and Jurisprudential Treatises: i) As articulated in leading constitutional and administrative law treatises (such as Aharon Barak’s Proportionality: Constitutional Rights and Their Limitations, which explores how rights must be balanced against competing public and private interests through suitability, necessity, and proportionality stricto sensu), the doctrine demands that judicial intervention be finely calibrated so that the remedy ordered is no more restrictive than necessary to protect the right in issue. ii) In environmental litigation involving authorized commercial enterprises, established comparative jurisprudence and treatises on public law remedies emphasize that the gravity of the alleged harm must be weighed against the severe, irreversible economic prejudice of a blanket injunction. iii) The conservatory orders sought by the Petitioners were framed in sweeping, absolute terms to halt "any mining operations, excavation, mineral extraction or any activities whatsoever". Granting a total 9|Page HOMA BAY ELC CONS. NO. E002 OF 2026 – RULING ON P.O

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shutdown of a licensed commercial operation without cogent, tested evidence of imminent and actual danger would cause disproportionate commercial prejudice to the Respondent. iv) The principle of proportionality dictates that where an applicant seeks a drastic, total interdict of ongoing lawful operations backed by an existing regulatory framework, the evidentiary threshold must match the severity of the relief; absent such proof, a blanket prohibition violates the balance required between sustainable development and lawful commercial enterprise. 18.In passing this court that while an arguable constitutional complaint was raised, the Petitioners failed to place sufficient technical material before the Court to justify the drastic remedy of completely halting operations pending the petition's hearing. 19.Final Disposition and Orders In the final analysis, balancing the Petitioners' constitutional environmental rights, the Respondent's right to conduct lawful activities, the regulatory mandate of NEMA, and the public interest in sustainable environmental management, the Court orders as follows: a) The Notice of Preliminary Objection dated 22nd August 2026 is hereby STRUCK OUT for want of signature. b) The Petitioners' Notice of Motion dated 12th August 2026 is DISMISSED. c) Each party shall bear its own costs of the Notice of Motion. d) The main petition shall be mentioned on 26th October 2026 for further directions. 10 | P a g e HOMA BAY ELC CONS. NO. E002 OF 2026 – RULING ON P.O

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DATED, SIGNED, AND DELIVERED VIRTUALLY AT HOMA BAY THIS 1ST OCTOBER 2026. HON. JUSTICE JOHN WALTER WANYONYI JUDGE, ENVIRONMENT AND LAND COURT AT HOMA BAY Appearance: a) Wanjiru Kamiru for the Respondent — Present b) Achola for the Petitioners — Absent c) Joseph Mikimueri Ming’anyi & John Obala Ajero (Petitioners) — Present in person d) Court Assistant, Ms. Awino. 11 | P a g e HOMA BAY ELC CONS. NO. E002 OF 2026 – RULING ON P.O

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