https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5185

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA ENVIRONMENT AND PLANNING PETITION NO. E001 OF 2026** IN THE MATTER OF: ARTICLES 1, 2, 3, 10, 20, 21, 22, 23, 24, 27, 28, 29, 40, 42, 47, 48, 50, 60, 61, 62, 69, 70, 73, 75, 159, 162(2)(b), 165, 232, 258 AND 259 OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF: THE ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 27, 28, 29, 40, 42, 47, 48 AND 50 OF THE CONSTITUTION AND IN THE MATTER OF: THE ALLEGED CONTRAVENTION OF THE STATE’S OBLIGATIONS UNDER ARTICLE 69 OF THE CONSTITUTION AND IN THE MATTER OF: SECTIONS 10, 20, 37, 44, 58, 103, 108, 109, 147, 176, 179 AND 197 OF THE MINING ACT, 2016 AND IN THE MATTER OF: SECTIONS 2, 9, 11, 28, 29 AND 30 OF THE EXPLOSIVES ACT (CAP 115) AND AND IN THE MATTER OF SECTIONS 2, 9, 11, 28, 29 AND 30 OF THE EXPLOSIVES ACT (CAP 115) AND IN THE MATTER OF: SECTIONS 3, 58, 67, 68, 69, 70, 144, 147 AND 148 OF THE ENVIRONMENTAL MANAGEMENT AND CO-ORDINATION AACT (CAP 387) AND IN THE MATTER OF: SECTION 13 OF THE ENVIRONMENT AND LAND COURT ACT BETWEEN HARRIETTE IGONANGA CHIGGAI (Suing as the Appointed Attorney of TIMOTHY SHAKHALAKA ERIC JIRONGO) .............1ST PETITIONER/APPLICANT ALEX LUMWAMU IMBWAGA (Suing on his own behalf and on behalf of the Lugari Community) ............................2ND PETITIONER/APPLICANT VERSUS THE CABINET SECRETARY, MINISTRY OF MINING, BLUE ECONOMY AND MARITIME AFFAIRS...........................................1ST RESPONDENT THE 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. Before court is a Notice of Motion dated 25th May 2026 filed under Certificate of Urgency by the petitioners/applicants seeking the following orders: 2. **Spent** 3. **THAT pending the *inter partes* hearing of this application, this Honorable Court be pleased to issue interim conservatory orders in terms of prayers 3, 4, 5, 6, 7, 8 and 9 herein.** 4. **THAT pending the *inter partes* hearing of this Application, this Honorable Court be pleased to issue a conservatory order restraining the 4th respondent, its agents, servants, employees, contractors, directors, shareholders, or any person acting under its authority, whether by themselves or through any corporate vehicle or business name whatsoever, from conducting any mining, blasting, excavation, quarrying, drilling, rock crushing, or any other related operations** 5. **on any parcel of land derived from or traceable to from the original mother title Kakamega/ Lugari/ 965, including but not limited to Kakamega/Lugari/3229,3230, 3232, 3233, 3234, 3235, 3237, 3569, 4568, 4569 and 5544; and Kakamega/Lugari/3570, 3571, 4567, 5137, 5138, 5139, 5140, 5481, 5482, 5543 and 5545 (being resultant subdivisions thereof); AND;** 6. **on, within, or affecting the following settlement parcels where the Lugari Community resides: numbers 194 (Amena), 198 (Sagara), 197 (Kavala), 292 (Kimomo), 290 (Nyore), 291 (Mmai), 267 (Imbwaga Itumbiru), 273 (Shadrach), 272 (Clement Lichiko), 271 (Shtendes), 20 (Locho), 21 (Kadima), 22 (Alfayo Sagala), 19 (Martin Ambuvi), 201 (Mtengo), and 202 (Marachi); AND** 7. **within 500 metres of any structure, homestead, or building located on the said settlement parcels or on any parcel derived from the original mother title Kakamega/ ­Lugari/965, including but not limited to Kakamega/Lugari/3229, 3230, 3232, 3233, 3234, 3235, 3237, 3569, 4568, 4569 and 5544; and Kakamega/Lugari/3570, 3571, 4567, 5137, 5138, 5139, 5140, 5481, 5482, 5543 and 5545 (being resultant subdivisions thereof).** 8. **THAT pending the *inter partes* hearing of this application and the petition, this Honorable Court be pleased to issue a conservatory order directing the 1st respondent, through the County Mining Officer for Kakamega and Busia Counties, to immediately enforce the stoppage orders issued on 16th October 2025 and 22nd January 2026 by sealing all access roads to the quarry site; Posting a guard at the quarry site to prevent any further operations; and Filing a return with this Honorable Court within seven (7) days confirming compliance.** 9. **THAT pending the inter partes hearing of this application, this Honorable Court be pleased to issue a conservatory order directing the Officer Commanding Station (OCS) Pan-Paper Police Station and the Officer Commanding Police Division (OCPD) Lugari to:** 10. **Provide adequate security for the enforcement of the orders of this Honorable Court;** 11. **Arrest and present before this Honorable court any person found violating the orders of this Honorable Court.** 12. **THAT pending the inter partes hearing of this application, this Honorable Court be pleased to issue a conservatory order directing the 3rd respondent to issue an immediate closure order under Section 117(3)(f) of the Environmental Management and Co-ordination Act (Cap. 387) against the quarry operations; and file a return with this Honorable Court within seven (7) days confirming compliance** 13. **THAT pending the inter partes hearing of this application, this Honorable Court be pleased to issue a conservatory order prohibiting the 1st respondent from issuing any mining license, permit, license, concession, or any other form of authorization, whether temporary or permanent, to the 4th respondent or any other person or entity in respect of any parcel of land derived from or traceable to from the original mother title Kakamega/Lugari/965, including but not limited to Kakamega/Lugari/3229, 3230, 3232, 3233, 3234, 3235, 3237, 3569, 4568, 4569 and 5544; and Kakamega/Lugari/3570, 3571, 4567, 5137, 5138, 5139, 5140, 5481, 5482, 5543 and 5545 (being resultant subdivisions thereof).** 14. **THAT pending the inter partes hearing of this application, this Honorable Court be pleased to issue a conservatory order directing the 4th respondent to remove all explosives, blasting materials, and hazardous substances from the quarry site within forty-eight (48) hours of service of this order, under the supervision of the 1st respondent and the OCS Pan-Paper Police Station.** 15. **THAT pending the *inter partes* hearing of this application, this Honorable Court be pleased to issue a conservatory order restraining the 2nd Interested Party, whether by himself, his agents, servants, employees, or any person acting under his authority, from conducting or facilitating any mining, blasting, or quarrying operations:** 16. **on any parcel of land derived from or traceable to from the original mother title Kakamega/Lugari /965, including but not limited to Kakamega/Lugari/3229, 3230, 3232, 3233, 3234, 3235, 3237, 3569, 4568, 4569 and 5544; and Kakamega/Lugari/3570, 3571, 4567, 5137, 5138, 5139, 5140, 5481, 5482, 5543 and 5545 (being resultant subdivisions thereof); AND** 17. **on, within, or affecting the following settlement parcels where the Lugari Community resides: numbers 194 (Amena), 198 (Sagara), 197 (Kavala), 292 (Kimomo), 290 (Nyore), 291 (Mmai), 267 (Imbwaga Itumbiru), 273 (Shadrach), 272 (Clement Lichiko), 271 (Shtendes), 20 (Locho), 21 (Kadima), 22 (Alfayo Sagala), 19 (Martin Ambuvi), 201 (Mtengo), and 202 (Marachi).** 18. **THAT pending the hearing and determination of the petition herein, this Honorable Court be pleased to issue a conservatory order restraining the 4th respondent, its agents, servants, employees, contractors, directors, shareholders, or any person acting under its authority, from conducting any mining, blasting, excavation, quarrying, or any other related operations:** 19. **on any parcel of land derived from or traceable to from the original mother title Kakamega/Lugari /965, including but not limited to Kakamega/Lugari/3229, 3230, 3232, 3233, 3234, 3235, 3237, 3569, 4568, 4569 and 5544; and Kakamega/Lugari/3570, 3571, 4567, 5137, 5138, 5139, 5140, 5481, 5482, 5543 and 5545 (being resultant subdivisions thereof); AND** 20. **on, within, or affecting the following settlement parcels where the Lugari Community resides: numbers 194 (Amena), 198 (Sagara), 197 (Kavala), 292 (Kimomo), 290 (Nyore), 291 (Mmai), 267 (Imbwaga Itumbiru), 273 (Shadrach), 272 (Clement Lichiko), 271 (Shtendes), 20 (Locho), 21 (Kadima), 22 (Alfayo Sagala), 19 (Martin Ambuvi), 201 (Mtengo), and 202 (Marachi); AND** 21. **within 500 meters of any structure, homestead, or building located on the said settlement parcels or on any parcel derived from from the original mother title Kakamega/Lugari/965, including but not limited to Kakamega/Lugari/3229, 3230, 3232, 3233, 3234, 3235, 3237, 3569, 4568, 4569 and 5544; and Kakamega/Lugari/3570, 3571, 4567, 5137, 5138, 5139, 5140, 5481, 5482, 5543 and 5545 (being resultant subdivisions thereof).** 22. **THAT pending the hearing and determination of the petition herein, this Honorable Court be pleased to issue a conservatory order directing the 1st respondent to enforce the stoppage orders of 16th October 2025 and 22nd January 2026 and to maintain such enforcement until the petition is heard and determined.** 23. **THAT pending the hearing and determination of the petition herein, this Honorable Court be pleased to issue a conservatory order prohibiting the 1st respondent from issuing any mining license, permit, or any other form of authorization to the 4th Respondent or any other person or entity in respect of any parcel of land derived from or traceable to Kakamega Lugari 965.** 24. **THAT pending the hearing and determination of the petition herein, this Honorable Court be pleased to issue a conservatory order directing the 3rd respondent to maintain the closure order issued pursuant to Prayer 6 herein until the petition is heard and determined.** 25. **THAT this Honorable Court be pleased to issue orders for the expedited hearing of the petition and for the abridgement of time within which the respondents may file their responses.** 26. **THAT this Honorable Court be pleased to issue any other orders or give such directions as it may deem just and expedient in the circumstances.** 27. **THAT the costs of this application be provided for.** 28. The application is predicated on the grounds on its face as well as affidavits sworn by the petitioners. The petitioners stated that unlawful mining, blasting, quarrying, excavation and related operations are being undertaken by the 4th respondent on parcels of land derived from the original mother title known as Kakamega/Lugari/965, and within close proximity to settlement parcels occupied by members of the Lugari Community. That Timothy Shakhalaka Eric Jirongo is the registered proprietor of the original mother title, Kakamega/Lugari/965, which was subsequently subdivided into several parcels. That following investigations at the Kakamega Lands Registry, the applicants discovered a fraudulent transfer of several resultant parcels through forged signatures, manufactured identification documents and irregular dealings, procured by the 2nd interested party, Dinesh Chandulal Mokha, and that, following the said transactions, quarry operations were commenced on parcels derived from the original title. 29. The applicants contended that the quarry operations are being carried out without a valid mining license, without the consent of the registered landowner, without a blasting permit and without lawful environmental approvals. They further alleged that the operations are being undertaken by or through changing corporate vehicles, including Simba Hydronet Lime Limited and the 4th respondent, Chaju Builders Limited, in a manner calculated to obscure the true operator and perpetuate illegality. 30. The applicants’ further case is that the quarrying and blasting activities have caused substantial damage to private homes and community property. In particular, that the 1st petitioner’s family home, situated approximately 470 meters from the quarry, has suffered extensive structural damage and has been assessed by a qualified engineer as a constructive total loss. They also aver that the blasting has damaged several homes within the affected settlement parcels and has exposed residents to danger, dust, noise, vibrations and environmental degradation. 31. The applicants also stated that Manyonyi Comprehensive School is situated near the quarry and that the blasting has affected the school’s infrastructure and learning environment and that the continued operations pose an imminent threat to the safety, health and dignity of the local community, including school-going children. 32. That the Ministry of Mining had already issued stoppage orders on 16th October 2025 and 22nd January 2026 after inspection revealed that the quarry was operating without a valid mining license and was conducting unauthorized blasting contrary to **section 11 of the Explosives Act (Cap 115).** That the said stoppage orders were subsequently lifted on 6th February 2026, not on account of legal compliance, but on the basis that the quarry products were required for the Affordable Housing Project. That vide a letter dated 15th January 2026, the applicants’ advocate wrote to the 1st respondent, requesting for an audit trail or any copies of licenses issued. That vide correspondence issued by the Ministry on 12th March 2026, the 1st respondent stated that Simba Hydronet Lime Limited was not registered in its online cadastre system and that no mining activity had been licensed over the relevant land parcel. That the mining license application by the 4th respondent was still under review. 33. The applicants further stated that their advocate wrote to the 3rd respondent, the National Environment Management Authority, on 24th October 2024, raising concerns over the environmental effects of the quarry operations allegedly carried out by Simba Quarry. That, in response, the Director General of the 3rd respondent confirmed that an inspection had been conducted on 29th October 2024, following which the proponent was issued with an Improvement Notice requiring compliance with the relevant legal requirements, including the Environmental Impact Assessment license conditions, and directing that no blasting activities be undertaken without the consent of the neighboring community. They faulted the 3rd respondent for allegedly failing to take further enforcement action despite the said inspection and Improvement Notice. They contended that, having established non-compliance, the 3rd respondent ought to have revoked the EIA license as provided under **Section 67 of the Environment Management and Coordination Act (EMCA).** 34. The application was opposed. The 1st and 2nd respondents filed a replying affidavit sworn on 8th July 2026 by Harry Kimtai, the Principal Secretary in the State Department for Mining, Ministry of Mining, Blue Economy and Maritime Affairs. He stated that records showed that the 2nd interested party lodged the first mining permit application with regards to the subject quarry on 20th December 2023 for extraction of construction and industrial minerals over an area measuring 0.1603 km² in Kakamega County for a period of five years. He stated that the said application was supported by copies of title deeds for Kakamega/Lugari/3230 and Kakamega/Lugari/3569, both in the name of Timothy Shakhalaka Eric Jirongo, as evidence of landowner consent covering approximately 8.96 hectares within the proposed project area. 35. That upon technical and legal evaluation, the application was found to be incomplete for failure to satisfy the statutory requirements under the **Mining Act, 2016 and the Mining (Licence and Permit) Regulations**, **2017**. He stated that although the application had been made in the name of the 2nd interested party as an individual, the supporting documentation and operational information showed that the quarry operations were associated with Simba Quarry Limited and/or Simba Hydronet Lime Limited. Consequently, the application was withdrawn on 15th December 2025 before any determination was made, and no mining permit was granted. He further stated that the 4th respondent had since made an application for a license for mining construction materials, which had passed through the technical stages and had been approved by the Cabinet Secretary for publication in accordance with **section 34 of the Mining Act**. 36. They further contended that the application before court was premature, as the applicants had not exhausted the remedies available under the Mining Act, including writing to the Cabinet Secretary and the Minerals Board to seek suspension of any mining activity as provided by law. That the issues raised by the applicants, including mining without a license, landowner consent, explosives permit and environmental impact assessment, were matters falling within the mandate of the 1st respondent as the licensing authority. 37. On his part, responding to the application, the 2nd interested party filed a preliminary objection dated 23rd June 2026, citing the following grounds: 38. **THAT this court lacks jurisdiction to entertain and determine the issues and/or complaints raised in the Notice of Motion dated 25th May 2026 and in the petition;** 39. **THAT the Notice of Motion dated 25th May 2026 is *res judicata;*** 40. **THAT the Notice of Motion dated 25th May 2026, together with the petition, offends the doctrine *of sub judice*, on the basis that the substratum of the application and petition is similar to the issues in Kakamega ELC No. E086 of 2025, Harriette Igonanga Chiggai v Dinesh Chandulal Mokha & 11 Others, which matter is said to be pending before this court;** 41. **THAT the petition is multifaceted and presents several issues in an omnibus manner** 42. The 2nd interested party prayed that the petition be struck out and/or dismissed with costs. 43. The 4th respondent similarly opposed the application by filing a preliminary objection dated 24th June, on the following grounds: 1. **This honorable Court lacks jurisdiction to hear and determine the Petition and the Notice of Motion as the same offends the Justiciability Doctrine of Constitutional Avoidance and Exhaustion.** 2. **The Petition and the Notice of Motion is *Sub judice* to Kakamega ELC No. E086 of 2026 and is a contravention of Section 6 of the Civil Procedure Act Chapter 21 Laws of Kenya.** 3. **The 1st Petitioner has no *locus* *standi* as the General Power of Attorney signed, dated, and registered on 22.10.2025, 27.10.2025 and 25.11.2025 respectively relied upon by the 1st Petitioner is a nullity for want of legal capacity on the part of the Donor pursuant to the Law of Contract Act on Master-Agent Relationship.** 4. **The 1st Petitioner has no locus standi to act as a Guardian/Manager of the Estate of Timothy Shakhalaka Erick Jirongo on account of the latter’s mental dementia pursuant to the provisions of Sections 26, 27 and 28 of the Mental Health Act Chapter 248 Laws of Kenya for want of an Order of Guardianship or Management in favor of the 1st Petitioner.** 5. **The Petition and the Notice of Motion is untenable, an afterthought, misconceived, bad in law, inept, incurably defective, vexatious, mischievous and an abuse of this honorable Court’s process and ought to be struck out *in* *limine* with costs to the 4th respondent.** 44. The 4th respondent also filed a replying affidavit sworn on 24th June 2026 by Samuel Otieno Bach, its Operations Director in response to the notice of motion. He deponed that the 4th respondent acquired the suit properties, namely Kakamega/Lugari/3230, 3233, 3569 and 5544, together with the quarry infrastructure, from the 2nd interested party pursuant to a sale agreement dated 30th September 2025. It maintained that it was a *bona* *fide* purchaser for value and that due diligence was conducted before the purchase confirmed the 2nd interested party as the registered proprietor for a period of over 9 years. It further averred that any alleged regulatory infractions were attributable to the previous operator. That upon taking over the quarry operations, it engaged the relevant regulatory authorities, settled the outstanding statutory dues, regularized the operations, procured the transfer of the NEMA Environmental Impact Assessment license into its name, and applied for a 2026 mining license through the Kenya Online Mining Cadastre Portal. 45. The 4th respondent stated that the Ministry of Mining lifted the stoppage orders after considering the steps taken towards compliance and the public interest attached to supply of materials for the Affordable Housing Project. That the petition and application were an abuse of the court process, as the issues raised were substantially similar to those pending in **Kakamega ELC Case No. E086 of 2025** and thus the proceedings herein offended the doctrines of *sub* *judice* and *res* *judicata* and amounted to forum shopping under the guise of a constitutional petition 46. It further challenged the invocation of constitutional jurisdiction, contending that the grievances raised were capable of resolution under the Mining Act, the Land Registration Act, EMCA, judicial review, and ordinary civil remedies. On the alleged environmental and structural damage, the 4th respondent stated that the applicants had not produced scientific, seismic, acoustic or technical evidence linking the alleged damage to its operations. It further stated that its quarry was approximately 854.08 metres from Manyonyi Comprehensive School and that another quarry, Nzoia Quarry Limited, operated nearer to the school. 47. The 4th respondent denied being an alter ego of Simba Hydronet Lime Limited, maintaining that it was a distinct corporate entity with separate directors, shareholders and legal personality. Further, that the petitioners’ lacked *locus* *standi*, contending that the 1st petitioner lacked proper authority to sue on behalf of Timothy Shakhalaka Eric Jirongo, while the 2nd petitioner had not demonstrated authority to sue on behalf of the alleged affected members of the Lugari Community. 48. In rejoinder, the petitioners filed supplementary affidavits, both dated 1st July 2026, in response to the replying affidavit sworn on behalf of the 4th respondent. The 1st petitioner averred that the 4th respondent’s claim of being a *bona* *fide* purchaser for value did not answer the question of whether the quarry operations were lawful. That the sale agreement relied upon by the 4th respondent could not confer a mining license, a blasting permit, landowner consent or environmental compliance. She further stated that the 4th respondent acquired the quarry operations with actual or constructive notice of the existing ownership dispute and regulatory non-compliance. She stated that the payment of statutory dues, royalties or penalties did not amount to regularization of the quarry operations. That the 4th respondent’s own evidence showed that it had merely applied for a mining license and that the application was still under review. 49. The petitioners further contended that the lifting of the stoppage orders was not founded on strict compliance with the law, but on policy considerations relating to the Affordable Housing Project and the Bottom-Up Economic Transformation Agenda. That policy considerations could not override the requirements of the Constitution, the Mining Act, the Explosives Act and the Environmental Management and Co-ordination Act. 50. The petitioners stated that the present petition was distinct from **Kakamega ELC Case No. E086 of 2025**. That the said suit concerned private land ownership and alleged fraudulent transfers, whereas the present petition raised public law and constitutional questions relating to the legality of the lifting of stoppage orders, alleged mining without a licence, blasting without a permit, failure by NEMA to enforce environmental law, and alleged violations of constitutional rights. They therefore denied that the petition was *res* *judicata*, *sub* *judice*, or an abuse of the court process. 51. On the issue of constitutional avoidance and exhaustion, the 1st petitioner averred that the petition raised direct questions touching on the rights to property, fair administrative action, a clean and healthy environment, and the State’s environmental obligations. They also stated that leave had been granted in Kakamega ELC Misc. Application No. E004 of 2026 exempting them from exhausting any administrative remedies that may have been available. 52. The 2nd petitioner, in his supplementary affidavit, stated that he had *locus* *standi* to act on behalf of members of the Lugari Community, and that in any event, **Article 70 of the Constitution** allowed any person to move the court for enforcement of the right to a clean and healthy environment without proving personal loss or injury. He averred that the photographs relied upon by the petitioners were properly produced and were accompanied by a certificate under **section 106B of the Evidence Act**. 53. The petitioners also disputed the 4th respondent’s contention that the alleged damage could be attributed to another quarry operating in the area. They maintained that the existence of another quarry did not absolve the 4th respondent from responsibility, and that the applicants had placed before the court an engineer’s report linking the observed structural damage to ground-borne vibration associated with nearby blasting and heavy ground disturbance. 54. The court directed that the application dated 25th May 2026 as well as the preliminary objections filed by the 4th respondent and 2nd interested party shall be heard together and shall be disposed by way of written submissions. All the parties herein filed submissions in respect thereto, which they highlighted on 14th July 2026. **Petitioners’ submissions** 1. The petitioners filed joint submissions dated 1st July 2026 and 3rd July 2026. They submitted that the Preliminary objections filed did not meet the legal threshold of a proper preliminary objection. Relying on **Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd** **(1969) EA** **696** they submitted that a preliminary objection must raise a pure point of law capable of disposing of the matter on the assumption that the facts pleaded by the opposing party are correct. They contended that the objections before court required the ascertainment of disputed facts, including the validity of the power of attorney, the donor’s alleged mental capacity, the similarity of parties and issues in the pending suit, and whether the petition amounted to an abuse of the court process. In their view, those matters could not properly be determined at the preliminary stage. 2. On jurisdiction, constitutional avoidance and exhaustion, the petitioners submitted that the objection was untenable because the petition had been filed pursuant to leave granted by this court on 22nd May 2026 in Kakamega ELC Misc. Application No. E004 of 2026, which exempted them from exhausting any administrative remedies that may have been available. That the said order had not been reviewed, set aside or appealed against, and could not be collaterally challenged through a preliminary objection. They further submitted that the petition raised substantial constitutional and environmental questions, including alleged violations of **Articles 40, 42, 47, 69 and 70 of the Constitution**, which could not be adequately resolved through ordinary statutory mechanisms. 3. Regarding whether the petition is *sub* *judice*, the petitioners submitted that the present petition was distinct from Kakamega ELC Case No. E086 of 2025. That the said ELC suit concerned private land ownership, alleged fraud and validity of land transfers, while the present petition raised public law questions relating to the legality of the lifting of stoppage orders, alleged mining without a license, blasting without a permit, failure by NEMA to enforce environmental law, and alleged violation of constitutional rights. They further submitted that the parties and reliefs in the two matters were not similar, and that the existence of the former suit had been expressly disclosed in the petition and supporting affidavit. 4. On the issue of *res* *judicata*, the petitioners submitted that no court had heard and finally determined the issues raised in the petition or in the Notice of Motion dated 25th May 2026. That a pending suit could not amount to a final determination, and that the 2nd interested party had not identified any previous decision by a competent court determining the same issues between the same parties. 5. On whether the 1st petitioner has *locus* *standi*, the petitioners submitted that the challenge to the 1st petitioner’s authority to sue on behalf of Timothy Shakhalaka Eric Jirongo raised factual questions that could not be resolved by way of preliminary objection. They contended that the power of attorney relied upon was duly registered, and that no medical or legal evidence had been placed before court to prove that the donor lacked capacity at the time of its execution. They further submitted that the 1st petitioner was suing as an appointed attorney, not as a guardian or manager under the Mental Health Act. 6. The petitioners also opposed the contention that the petition was multifaceted, omnibus or an abuse of the court process and submitted that the fact that a petition raised several related constitutional, land and environmental issues did not deprive this court of jurisdiction. They relied on the position that the Environment and Land Court was the proper forum to determine multifaceted claims involving land, environment and constitutional rights. That the petition was supported by documentary evidence, including stoppage orders, correspondence from the Ministry, NEMA notices, and an engineer’s report, and therefore could not be dismissed as frivolous or vexatious at the preliminary stage. 7. They further contended that they had established a *prima* *facie* case with a likelihood of success. They relied on the stoppage orders issued by the County Mining Officer on 16th October 2025 and 22nd January 2026, which, according to them, confirmed that the quarry was operating without a valid mining license, was conducting unauthorized blasting, and had generated complaints from neighboring homesteads on account of noise, dust and vibrations. They further submitted that the stoppage orders were lifted on 6th February 2026, not because the quarry had complied with the law, but on account of policy considerations relating to the Affordable Housing Project. 8. The petitioners further submitted that correspondence from the Ministry of Mining dated 12th March 2026 confirmed that Simba Hydronet Lime Limited, the previous operator, had never been registered in the online cadastre system and had never held a mining license. They also submitted that the Ministry confirmed that no mining activity had ever been licensed on Kakamega/Lugari/3230, and that the 4th respondent’s application for a mining license was still under review. That NEMA had issued an Improvement Notice on 29th April 2025 requiring the quarry to comply with the law and to stop blasting activities without the consent of the neighboring community. That however, the said notice was ignored and that blasting continued, resulting in extensive structural damage to the 1st petitioner’s family home and other homes within the affected community. 9. Relying on the principles governing conservatory orders as set out in **Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, Wilson Kaberia Nkunja v Magistrates** and **Judges Vetting Board & another, and Mrao Ltd v First American Bank of Kenya Ltd & 2 others**, the applicants submitted that a conservatory order is a public law remedy intended to preserve the substratum of the petition, protect constitutional values and prevent continued violation of rights pending determination of the dispute. 10. Contention was made that the continued quarrying and blasting violated or threatened the violation of their rights under **Articles 40, 42, 47, 69 and 70 of the Constitution**. They argued that the right to a clean and healthy environment had been violated, and that under **Article 70 of the Constitution**, they were not required to demonstrate personal loss or injury where there was a threat to the environment. 11. They argued that unless the orders sought were granted, the petition would be rendered nugatory since the quarry operations would continue causing irreversible damage to homes, the environment and the surrounding community. They referred the court to the engineer’s Building Condition Assessment and Damage Report dated 4th February 2026, which they stated linked the structural damage to ground-borne vibrations associated with blasting and recommended that the quarrying and blasting activities be halted immediately. Further, that Manyonyi Comprehensive School and its learners remained exposed to danger from continued blasting. They averred that the school had complained of damage to infrastructure and adverse effects on the learning environment, and that the risk of injury, collapse of buildings, environmental degradation and continued violation of constitutional rights justified the intervention of the court. 12. The applicants further submitted that public interest militated in favor of granting the conservatory orders sought in order to prevent the 4th respondent from its continuous operation without a mining license, blasting permit, landowner consent and lawful environmental compliance. They contended that policy considerations, including the Affordable Housing Project, could not override the Constitution, the Mining Act, the Explosives Act or EMCA. **1st and 2nd respondents’ submissions.** 1. Counsel for the 1st and 2nd respondents filed submissions dated 14th July 2026, and submitted that the application was premature since the 4th respondent’s application for a mining license was still pending before the 1st respondent and had reached the stage of publication under **section 34 of the Mining Act**, thereby affording any person, including the applicants, an opportunity to lodge objections within the prescribed period. 2. They further submitted that the applicants had not exhausted the remedies available under the **Mining Act**. It was their position that the complaints raised, including lack of a mining license, absence of landowner consent, blasting without a permit, safety concerns and environmental compliance, were matters falling within the statutory mandate of the 1st respondent and the Mineral Rights Board under **sections 12 and 31 of the Mining Act**. That, before issuing any mineral right, the Cabinet Secretary was required to ensure compliance with the Act, including landowner consent under **section** **36**, satisfaction of the conditions under **section** **42**, general compliance under **section** **58**, and environmental protection under **section** **176**. 3. On whether the applicants had established a *prima* *facie* case, the 1st and 2nd respondents relied on the case of **Board of Management** **Uhuru Secondary School v City County Director of Education & 2 Others [2015] e KLR** and submitted that no illegality, irrationality, procedural impropriety, bias or constitutional violation had been demonstrated in the manner in which the 1st respondent had handled the 4th respondent’s pending application. They further averred that allegations touching on land fraud, land ownership and the integrity of land records did not fall within the mandate of the 1st respondent, and were in any event already the subject of Kakamega ELC No. E086 of 2026. That the applicants were invoking public interest to pursue private grievances, and that the application and petition amounted to an abuse of the court process and ought to be dismissed with costs. **4th respondent’s submissions** 1. Vide submissions dated 7th July 2026, counsel for the 4th respondent submitted that the application was untenable since the petitioners had presented ordinary private grievances relating to land ownership, nuisance and alleged structural damage as constitutional claims, without satisfying the threshold for constitutional pleading under **Anarita Karimi Njeru v Republic and Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others**. 2. Counsel further submitted that the petitioners had not established a *prima* *facie* case to warrant the grant of conservatory orders, since allegations of environmental harm, noise, dust, vibration and structural damage were speculative and unsupported by scientific evidence such as seismic data, air quality reports, decibel readings or technical material capable of linking the alleged damage specifically to the 4th respondent’s operations. Further, that another quarry, namely Nzoia Quarry Limited, operated closer to Manyonyi Comprehensive School, and that the applicants had failed to isolate the 4th respondent as the cause of the alleged harm. 3. On the alleged violation of property rights, counsel for the 4th respondent submitted that the claim was founded on an extinct mother title, Kakamega/Lugari/965, which had been lawfully subdivided several years before the 4th respondent acquired its interest. It maintained that it conducted due diligence before purchase, acquired the property in good faith, and was entitled to protection as a *bona* *fide* purchaser for value. It further submitted that allegations of fraud, invalid titles or irregular subdivision were private law claims that ought to be ventilated in ordinary civil proceedings and not through a constitutional petition. 4. I was also contended for the 4th respondent that there was no violation of **Article 47 of the Constitution** since no stoppage order had been issued against it, and that the administrative correspondence relied upon by the applicants related to a previous operator. It contended that it had complied with the relevant regulatory requirements, including payment of fees, processing of its mining application, environmental compliance, landowner consent and public participation, and that it had been permitted to continue operations while the formal licensing process was being concluded. 5. It was submitted that the application failed the nugatory test. According to the 4th respondent, the alleged damage was compensable by financial damages and did not warrant the drastic remedy of shutting down a commercial enterprise at the interlocutory stage. It argued that conservatory orders ought not to issue where the alleged prejudice could be addressed through ordinary civil remedies. 6. On public interest, submissions were made that the balance favored continuation of the quarry operations since the quarry supplied essential construction materials for the Affordable Housing Project under the Bottom-Up Economic Transformation Agenda, supported employment and local economic activity, and had complied with the applicable administrative process. It therefore argued that public interest, economic continuity and orderly regulatory administration militated against the grant of the orders sought. 7. The 4th respondent also submitted that the application offended the doctrines of constitutional avoidance and exhaustion. It argued that the applicants ought to have pursued available statutory remedies under EMCA, the Mining Act and the relevant regulatory frameworks, including mechanisms before the National Environment Tribunal and the Cabinet Secretary, before invoking the constitutional jurisdiction of this court. 8. It was the 4th respondent’s contention that the proceedings were *sub* *judice*, *res* *judicata* and amounted to forum shopping, on the basis that **Kakamega ELC Case No. E086 of 2025** raised substantially similar issues and that the petitioners had previously sought orders aimed at stopping the quarry operations in that matter. It submitted that the present petition was an attempt to obtain, through constitutional proceedings, orders that had already been declined in the civil suit. 9. On *locus* *standi*, the 4th respondent challenged the 1st petitioner’s authority to sue as attorney of Timothy Shakhalaka Eric Jirongo, contending that the power of attorney was legally untenable in light of the donor’s alleged mental incapacity and in the absence of a guardianship or management order under the Mental Health Act. It also challenged the 2nd petitioner’s authority to sue on behalf of the Lugari Community, arguing that he had not demonstrated a proper and direct mandate from the alleged affected persons. In view of the foregoing, the 4th respondent prayed for the court to dismiss the Notice of Motion dated 25th May 2026, uphold its preliminary objection dated 24th June 2026, and strike out the petition with costs. **Analysis and determination.** 1. The court has carefully considered the Notice of Motion dated 25th May 2026, the replying affidavits, preliminary objections, supplementary affidavit, and rival submissions. The following issues arise for this court’s determination, namely; * 1. **Whether the preliminary objections dated 23rd June 2026 and 24th June 2026 raise pure points of law capable of determination as preliminary objections.** 2. **Whether the preliminary objections are merited** 3. **Whether this court has jurisdiction to entertain the petition in light of the doctrines of constitutional avoidance and exhaustion.** 4. **Whether the petition has met the threshold for a constitutional petition.** 5. **Whether the Petition and the Notice of Motion dated 25th May 2026 are *sub judice* and *res judicata*** 6. **Whether the petitioners have locus standi to bring the petition herein** 7. **Whether the petitioners have met the legal threshold for the grant of conservatory orders pending the hearing and determination of the petition.** 8. **Who should bear the costs of the application and the preliminary objections.** 2. On whether the preliminary objections raised by the 4th respondent and 2nd interested party raise pure points of law, in **Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, Law JA** stated: ***"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, 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."*** The Court in the same case further stated: ***"A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion."*** 1. In **Oraro v Mbaja [2005] 1 KLR 141**, the Supreme Court stated: ***"A preliminary objection correctly understood is now well defined as and declared to be a point of law which must not be blurred with factual details liable to be contested and, in any event, to be proved through the process of evidence. Any assertion which claims to be a preliminary objection, yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication is not, as a matter of legal principle, a true preliminary objection."*** 1. The Supreme Court in **Independent Electoral and Boundaries Commission v Jane Cheperenger & 2 Others [2018] eKLR**, held that: ***"A preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of the pleadings and which if argued as a preliminary point may dispose of the suit."*** 1. Therefore, a proper preliminary objection ought to raise only a pure point of law based on uncontested facts. A preliminary objection should be clear and particularize the law that has been offended, as specificity is required. A preliminary objection based on vagueness and ambiguity cannot be sustained. 2. Looking at the 4th respondent’s preliminary objection, the matters raised are that; the court lacks jurisdiction as the petition and the notice of motion offend the doctrine of constitutional avoidance and exhaustion; that in view of the pendency of Kakamega ELC case No. 86 of 2026, this suit is *sub judice*; that the 1st petitioner lack capacity to sue the respondents and interested parties because the General power of attorney she relies upon is a nullity for wan of legal capacity by the donor on the basis of the requirements under the law of contract on Master-agent relationship; that the 1st petitioner lacks *locus standi* to act as guardian of the estate of Timothy Shakhalaka Erick Jirongo on account of the latter’s mental status pursuant to provisions of sections 26, 27 and 28 of the Mental Health Act and that the petition and the motion are untenable, an afterthought, misconceived, defective and an abuse of the court process. 3. As for the 2nd interested party, his contention in his preliminary objection was that the court lacked jurisdiction to determine the issues in the petition and the application; that the application dated 25th May 2026 was res judicata; that the petition and application were *sub judice* in view of the pendency of Kakamega ELC Case No. E086 OF 2026 and that the petition was multifaceted. 4. The 1st interested party’s objection that this court lacks jurisdiction to determine the complaint in the petition is not anchored on any legal provision or principle. Therefore, that contention is vague and ambiguous and is rejected. 5. A preliminary objection ought to have sufficient information to disclose the basis of the objection. If a party argues that the court lacks jurisdiction he ought to state concisely, within the preliminary objection why there is want of jurisdiction. That was properly done by the 4th respondent herein who pleaded want of jurisdiction on the basis of the doctrine of constitutional avoidance and the principle of exhaustion. A party cannot give incomplete pleadings with the assumption that the basis of their contention shall be disclosed in the submissions. Submissions are merely persuasions and cannot be a substitution of pleadings. 6. The interested party also stated that the application was *res judicata*. The doctrine of res judicata which is anchored on section 7 of the Civil Procedure Act, bars a court from trying a suit or an issue which was substantially and directly in issue between the same parties or their privies in a former suit which has already been determined on merit with finality by a court of competent jurisdiction. The question of *res judicata* is a question of evidence and law and therefore to demonstrate res judicata a defendant ought to prove the elements under section 7 of the Civil Procedure Act through a notice of motion supported by an affidavit. The same applies to a plea of *sub judice* which is anchored on section 6 of the Civil Procedure Act which requires a court not to proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties or their privies pending before a court of competent jurisdiction. 7. Therefore, pleas of *res judicata* and *sub judice* based on contested evidence like in this case, ought not be raised through a preliminary objection but ought to be raised by notice of motion supported by affidavit or through replying affidavit to the plaintiff’s motion. On that basis, the two grounds are not pure points of law and therefor cannot be properly raised through a preliminary objection. 8. On the 2nd interested party’s contention that the petition is multifaceted and omnibus, that contention remains ambiguous as to the manner in which the petition is multifaceted, and no law was cited to bar this court from hearing and determining a multifaced petition. Ordinarily, constitutional petitions may be multifaceted. That alone cannot take away the court’s jurisdiction. In the end, I find and hold that the 1st interested party’s preliminary objection was vague and raised matters based on contested evidence and therefore the same is dismissed. 9. Regarding the 4th respondent’s preliminary objection, the question of jurisdiction is properly anchored on the doctrine of constitutional avoidance and exhaustion. That is a pure point of law which merits determination as a preliminary point. 10. The 4th respondent raised the question of *sub judice,* as a preliminary point. That question is based on contested matters as can be seen from paragraphs the petition and therefore as stated above, the same cannot be determined as a preliminary matter. However, as the matter was raised in the preliminary objection and the 4th respondent’s replying affidavit, that is a proper question to be determined on the evidence availed by the parties herein, which will be done shortly. 11. The 4th respondent further challenged the 1st petitioner’s *locus standi* on the basis that the donor of the power of attorney lacked capacity to donate such power and that in view of the mental status of Timothy Shakhalaka Erick Jirongo in the context of the provisions of sections 26, 27 and 28 of the Mental Health Act, the 1st petitioner has no locus standi to act as Guardian for the estate of Timothy. In that regard, I take the view that the issues of capacity raised herein are not pure points of law so as to be determined through a preliminary objection but are matters that can only be determined upon taking evidence in view of the contest made in regard to the alleged facts. 12. For the above reasons, the only question in the 4th respondent’s preliminary objection which constitutes a pure point of law and which ought to be determined as a preliminary matter is the question of jurisdiction of the court in respect to the doctrine of constitutional avoidance and exhaustion. 13. In **Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1, where Nyarangi JA,** the Supreme Court stated that: ***"Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence."*** 1. On the question of exhaustion of administrative remedies, the petitioners relied on the leave granted by this court on 22nd May 2026 vide Kakamega ELC Miscellaneous Application No. E 004 OF 2026 exempting the petitioners from the requirement of exhausting administrative remedies on the basis that the petition raised constitutional questions. 2. While this court appreciates that indeed it exempted the petitioners from first seeking administrative remedies, making a finding that the draft petition, which is the current petition, raised constitutional questions, that order having been made ex parte, is subject to challenge at the inter partes hearing. The ex parte order herein affects the respondents although having been made pursuant to section 9 (4) of the Fair Administrative Actions Act, was made without the respondents being accorded a chance to present their position on the matter. That being the case, and in view of the Constitutional tenet of fair hearing enshrined in Article 50 of the Constitution of Kenya, I am of the view that it is within the respondents’ rights to challenge the said ex parte order and even seek review of the same at this stage. That challenge was raised through the respondents’ replying affidavits and preliminary objection. And for that reason, at this inter partes hearing stage, the petitioners are obligated to demonstrate that the court was right in granting the exemption, by demonstrating that even upon taking into account the responses from the respondents, the dispute raises constitutional questions which needed by passing alternative administrative remedies for a direct remedy of judicial intervention. 3. This is so because at the ex parte stage, the court did not have the benefit of considering the responses and submissions of the respondents. Now that their responses and submissions have been presented, this court has an opportunity to relook at the propriety of the order of exemption made ex parte. 4. The Black’s Law Dictionary, 11th Edition defines exhaustion of remedies as follows; **“The doctrine that, if an administrative remedy is provided by statute, a claimant must seek relief first from the administrative body before judicial relief is available. The doctrine’s purpose is to maintain comity between the courts and administrative agencies and to ensure that courts will not be burdened by cases in which judicial relief is unnecessary.”** 1. The exhaustion principle places a duty on an aggrieved claimant who wishes to seek judicial intervention regarding a matter where the law provides for a specific administrative dispute resolution mechanism, to first seek relief before the administrative body provided for in law, before seeking judicial intervention. 2. This principle is anchored on the conceptual notion of separation of powers and the efficient use of judicial resources. It is not every dispute that must be resolved in court. The purpose of the exhaustion principle is to allow administrative agencies to act within their sphere of expertise; uphold the administrative autonomy of such administrative bodies and where the matter ends up in court, the court will benefit from the administrative agency’s fact-finding exercise. 3. Regarding the purpose of the exhaustion principle, Rebecca Donnellan, in her Article **“*Exhaustion Doctrine should not be a doctrine with Exceptions*” 103 W. Va. L. Rev.[2001],** argues that the doctrine upholds the administrative autonomy of administrative organs by placing on them primary responsibility for administering programs that they are mandated by the legislature to undertake, because courts ought not interfere in the exercise of their powers and duties. She further observed that the doctrine allows administrative bodies to act within the sphere of their special competence and expertise thus giving them opportunity to correct their own errors; and when a matter has been heard by an administrative body and ends up in court, the court will benefit from the agency’s record and findings on facts leading to more accurate decisions as agencies expertise especially on complex factual issues assist in factual findings. 4. In the case of ***Wambua & 2 Others (Suing for themselves and on behalf of the other residents of Muumoni Village, Utithini Sub-Location, Masii Location) v. County Government of Machakos & 3 Others (Constitutional Petition No. E004 of 2022 [2023] KE ELC 786 KLR (8th February 2023) (Ruling) at paragraph 33,*** this court observed as follows; ***“While the doctrine of exhaustion of remedies is not purely a jurisdictional issue, it requires courts to exercise restraint and be hesitant to hear and determine matters which although they appear to apparently have jurisdiction, the same have been delineated by legislation to be heard and determined by other administrative bodies.”*** 1. Also, in the case of ***Speaker of the National Assembly v. Njenga Karume [2008] 1 KLR,*** the court held as follows; ***“Where there is a clear procedure of any particular grievances prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.”*** 1. Similarly, in the case of ***Geoffrey Muthinja & Another v. Samuel Muguna Henry and 1756 Others [2015] eKLR,*** the Court of Appeal stated that; ***“Where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the court is invoked. Courts ought to be a fora of last resort and not the first call the moment a storm brews ……the exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the courts.”*** 1. This court takes the position that while questions of a court’s jurisdiction are predicated on rigid legal rules based on the fact that jurisdiction is conferred by the Constitution or statute or both, with no room for exceptions, the principle of exhaustion is not cast in stone. That notwithstanding, the court is expected to exercise judicial restraint in disputes where the legislature has specifically mandated administrative bodies to make determinations. 2. However, the exhaustion principle has exceptions which are applied so as to avoid injustice. In instances where the available administrative remedy is inefficacious, or inadequate, or futile; or the decision complained of is marred with procedural irregularities and illegality, a claimant in such case is allowed to bypass alternative administrative remedies. 3. The court takes the view that the critical and fundamental concern for the court is to find out whether the administrative dispute resolution mechanism provided will avail to the parties, substantive justice guaranteeing effective remedies envisaged in the er notions of the right to access to justice encapsulated in Article 48 of the Constitution. 4. In the case of ***Chief Justice and President of Supreme Court of Kenya & Another v. Bryan Mandila Khaemba [2021] eKLR,*** the Court of Appeal took the view that where the decision complained of is marred in procedural irregularity and illegality, notwithstanding the doctrine of exhaustion, the court still retains the residual jurisdiction to intervene. In that case, the court held as follows; ***“Where there was an alternative remedy and especially where Parliament had provided a statutory appeal procedure, it is only in exceptional circumstances that an order of judicial review would be granted and that in determining whether an exception should be made and judicial review granted, it is necessary for the court to look carefully at the suitability of the statutory appeal in the context of the particular case and ask itself what, in the context of the statutory powers, was the real issue to be determined and whether the statutory appeal procedure was suitable to determine it.”*** 1. The suitability of the administrative dispute resolution mechanism in view of the nature of the grievances presented and the quality of the audience before the administrative agency ought to be interrogated in determining whether there exist special circumstances to warrant an exception from the exhaustion principle. In the case of ***Night Rose Cosmetics [1972] Ltd v. Nairobi County Government & 2 Others [2018] eKLR*** at paragraph 34 and 35, the court held as follows; ***“…...where there is an alternative remedy or where Parliament has provided a statutory appeal process, it is only in exceptional circumstances that an order for judicial review would be granted and that in determining whether an exception should be made and judicial review granted, it is necessary for the court to look carefully at the suitability of the appeal mechanism in the context of the particular case and ask itself what, in the context of the internal appeal mechanism is the real issue to be determined and whether the appeal mechanism is suitable to determine it…..*** 1. ***The second principle suggested by the case law for limiting the applicability of the doctrine of exhaustion in appropriate cases is that a statutory provision providing an alternative forum for dispute resolution must be carefully read so as not to oust the jurisdiction of the court to consider valid grievances from parties who may not have audience before the forum created, or who may not have the quality of audience before the forum which is proportionate to the interests the party wishes to advance in a suit. The rationale behind this is that statutory provisions ousting court’s jurisdiction must be construed restrictively.”*** 2. Section 9(2) and (4) of the Fair Administrative Action Act No. 4 of 2015, while restating the application of the principle of exhaustion, it also recognizes exceptions thereto; and provides as follows; 3. **“(2) The High Court or a subordinate court under sub-section (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.** 4. **Notwithstanding sub-Section (3) of the High Court or a subordinate court may, in exceptional circumstances and on application by the applicant, exempt, such person from the obligation to exhaust any remedy if the court considers such exemption to be in the interests of justice.”** 5. The Supreme Court of Kenya, in the case of ***Abidha Nicholas v. The Attorney General & Others; National Environmental Complaints Committee & 5 Others (Interested Parties) Petition No. E007 of 2023*** addressed the question as to whether in constitutional petitions where violations of constitutional rights concerning the environment and land have been raised, a petitioner is obligated to comply with the exhaustion principle.In that case, the Supreme Court took a position upon pointing out that court decisions in Kenya have held two opposing schools of thought; on one hand, that even if the ELC has original and appellate jurisdiction on environmental and land disputes, parties should first exhaust administrative remedies provided in statute before appealing to the ELC; and on the other hand, that where a complaint and prayers by a petitioner relate to infringement of Constitutional rights, then statutory provisions for alternative administrative redress are in applicable. 6. In that case, the Supreme Court adopted the restraint and effective remedy rule, thus leaning towards the latter school of thought, to the effect that where the petitioner seeks redress of violations of Constitutional rights, the exhaustion principle is inapplicable. It held as follows; ***“Under Article 165 (1) (c) of the Constitution, the High Court has jurisdiction to determine whether a right or fundamental freedom outlined in the bill of rights has been denied, violated, infringed upon or is under threat, in that contest article 165 (5) (b) imposes limitation on the High Court's jurisdiction concerning mattes falling within the purview of the courts specified in Article 162 (2) which provides that;*** ***Parliament shall establish courts with the status of the High Court to determine disputes relating to;*** 1. ***Employment and labour relations; and*** 2. ***The environment and the use and occupation of, and title to, land.*** ***…In this context, and in the exercise of these powers, parliament enacted the Environment and Land Court Act 2011, (No. 19 of 2011) and by Section 4 thereof established the ELC. It’s jurisdiction is as provided for in Section 13 with Section 13(1) specifically outlining that the court*** ***“shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 163 (2) (b) of the Constitution. Section 13 (2) then grants express and original jurisdiction in matters;*** 1. ***Relating to environmental planning and protection, trade, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;*** 2. ***Relating to compulsory acquisition of land;*** 3. ***Relating to land administration and management;*** 4. ***Relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and*** 5. ***Any other dispute relating to environment and land.*** ***And further provides;*** ***Nothing in this Act shall preclude the court from hearing and determining applications for redress of a denial, violation or infringement of, or threat to, rights or fundamental freedom relating to the environment and land under Articles 42, 69 and 70 of the Constitution.*** 1. ***These provisions must be read in contrast to those in EMCA which provide for instances where disputes pertaining to compliance with breach …….of the provisions of EMCA and which disputes ought to be lodged with …..NET…..redress for Constitutional violations is not part of this mandate.*** ***[100] In addressing the conundrum placed before us, we must remind ourselves that, what is in dispute before this court is the applicability of these provisions to the appellant’s claim and not the true meaning of the provisions of EMCA or the Energy Act. This is because the provisions of EMCA or the Energy Act do not expressly oust the jurisdiction of the ELC in respect of the procedure for the determination of disputes that involve the management of the environment or issues of petroleum and energy. In the ordinary course of events, the ELC still has original jurisdiction over the matters that are handled by NEMA, unless such jurisdiction is specifically and expressly ousted in a Constitutionally compliant manner. The same holds true for proceedings under the Energy Act.”*** 1. In **Base Titanium Limited v Kiswili (On Behalf of 65 Others) & 3 Others [2025] KECA 1330 (KLR)** where the Court of Appeal considered whether the existence of statutory mechanisms under the Mining Act deprived the Environment and Land Court of jurisdiction to determine a constitutional petition alleging violation of the right to a clean and healthy environment. The Court held that the Environment and Land Court retains jurisdiction to determine constitutional petitions concerning environmental rights. The Court of Appeal further recognized that the dispute before it was multifaceted, involving both mining regulation and constitutional environmental rights. It held that the ELC was entitled to determine the constitutional questions raised. The Court observed that: ***"Nothing in this Act shall preclude the Court from hearing and determining applications for redress of a denial, violation of, infringement of, or threat to, rights or fundamental freedom relating to a clean and healthy environment under Articles 42, 69 and 70 of the Constitution."*** 1. Article 70 of the Constitution grants this court the jurisdiction to grant orders for redress in regard to violations of the right to a clean and healthy environment. In view of the above, I am clear in my mind that where a dispute relates to violation of Constitutional rights relating to the environment and or land, by dint of the provisions of Articles 70, 162 (2) (b) and 165 (3) (b) (5) (b) as read with Sections 13 (3) of the Environment and Land Court Act No. 19 of 2011, this court’s original jurisdiction to hear and determine such disputes is not ousted by the exhaustion principle. 2. I have considered the dispute herein wherein the petitioners allege that the 4th respondent’s actions of blasting and crushing aggregate and quarrying within the proximity of their homes are illegal, contrary to the law and that the same have resulted to noise and air pollution, as well as ground vibrations and tremors leading to destruction of their houses and damage to the environment, hence violating their rights to a clean and healthy environment protected under Article 42 of the constitution and right to property and that despite their complaints to the 1st to 3rd respondents, who exercise regulatory mandate over the 4th respondent, the regulators have violated Article 21 of the Constitution by failing to ensure that their right to a clean and healthy environment is not violated by the 4th respondent. The correspondence provided by the petitioners demonstrate lengthy engagements between the petitioners and the 1st to 3rd respondents over the matter. The bone of contention being inter alia that the reasons for the stoppage order issued by the 1st respondent were not addressed at the point when the 1st respondent lifted the same. The petitioners argue that that grievance among others can no longer be determined by the 1st to 3rd respondents whose mandate is to ensure that the law is complied with by business enterprises or individuals undertaking mining. They further argued that the considerations taken into account by the 1st to 3rd respondents in lifting the stoppage orders are irrelevant considerations. Basically, their arguments are that they are aggrieved with the conduct of the 1st to 3rd respondents in handling their grievance against the 4th respondent. 3. This court has considered the mandate of the 1st respondent and the National Environment Tribunal as provided for in sections 155 as read with section 156 of the Mining Act and section 129 of EMCA respectively. The same do not provide for resolution of allegations of constitutional violations. In that regard therefore, I find and hold that the dispute herein transcends the limited mandate held by the respondents in determining disputes relating to mining and environmental harm. 4. A look at the dispute herein demonstrate that the petitioners have raised constitutional questions which require constitutional interpretation and therefore, the dispute herein present exceptional circumstances that require bypassing the exhaustion of administrative remedies. I find and hold that the petitioners have not violated the exhaustion principle. In view of the alleged constitutional violations, I find and hold that the exemption granted to the petitioners was proper and justified. 5. On whether the petition herein has met the threshold of a constitutional petition, Rule 10 of the Constitution of Kenya (Protection of rights and fundamental freedoms) Practice and Procedure Rules (Hereinafter referred to as the ‘Mutunga Rules’) provides for the form and substance of a Constitutional Petition as follows: ***“10. (1) An application under rule 4 shall be made by way of a petition as set out in Form A in the Schedule with such alterations as may be necessary. (2) The petition shall disclose the following—*** 1. ***The petitioner’s name and address;*** 2. ***The facts relied upon;*** 3. ***The constitutional provision violated;*** 4. ***The nature of injury caused or likely to be caused to the petitioner or the person in whose name the petitioner has instituted the suit; or in a public interest case to the public, class of persons or community; (e) details regarding any civil or criminal case, involving the petitioner or any of the petitioners, which is related to the matters in issue in the petition; (f) the petition shall be signed by the petitioner or the advocate of the petitioner; and (g) the relief sought by the petitioner.*** ***(3) Subject to rules 9 and 10, the Court may accept an oral application, a letter or any other informal documentation which discloses denial, violation, infringement or threat to a right or fundamental freedom.*** ***(4) An oral application entertained under sub rule (3) shall be reduced into writing by the Court.”*** 1. The law on the legal threshold for a Constitutional petition is well settled. A Constitutional petition must raise a Constitutional question requiring Constitutional interpretation as opposed to statutory interpretation. It means that a petitioner should, with a reasonable degree of precision state clearly the respondent’s acts complained about; the constitutional provisions violated or threatened to be violated by the respondent and the manner in which they are alleged to have been violated. 2. In **Communications Commission of Kenya & 5 Others v. Royal Media Services Limited & 5 Others [2014] eKLR,** the Supreme Court of Kenya aptly captured this position as follows: ***“Although Article 22 (1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Anarita Karimi Njeru v. Republic [1979] KLR 154; the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such a principle plays a positive role, as a foundation of conviction and good faith, in engaging the Constitutional process of dispute settlement…….”*** 1. Similarly, in the case of **Mumo Matemo v Trusted Society of Human Rights Alliance [2014] eKLR,** the Supreme Court of Kenya stated as follows: ***“…the principle in Anarita Karimi Njeru (supra) underscores the importance of defining the dispute to be decided by the court… Procedure is also a handmaiden of just determination of cases. Cases cannot be dealt with justly unless the parties and the court know the issues in controversy. Pleadings assist in that regard and are a tenet of substantive justice, as they give fair notice to the other party. The principle in Anarita Karimi Njeru (supra) that established the rule that requires reasonable precision in framing of issues in constitutional petitions is an extension of this principle” In the case of Christian Juma Wabwire v Attorney General [2019] eKLR, the Judge relied on the decision in Lt Col Peter Ngari Kagume and 7 others v AG, Constitutional Application No 128 of 2006 where it was held that:-It is incumbent upon the petitioners to avail tangible evidence of violation of their rights and freedoms. The allegations of violations could be true but the court is enjoined by law to go by the evidence on record. The petitioners’ allegations ought to have been supported by further tangible evidence such as medical records, witnesses…… the court is deal to speculation and imaginations and must be guided by evidence of probative value. When the court is faced by a scenario where one side alleges and the rival side disputes and denies, the one alleging assumes the burden to prove the allegation… However, mere allegation of incarceration without providing evidence of the same does not at all assist the court. It was incumbent upon the Petitioners to provide evidence of long incarceration beyond the allowed period and not to be presumptuous that the court knows what happened…..”*** 1. In the instant case, the petitioners who are residents of Manyonyi area in Lugari allege that the 4th respondent has unlawfully been blasting and crushing aggregates resulting in noise pollution, dust and ground vibrations which has affected their homes, land, the air, the health of the residents and the environment. They accuse the 1st, 2nd and 3rd respondents of failure to observe their obligations in the bill of rights guaranteed under Article 21 of observing, respecting protecting and fulfilling the petitioners’ right to a clean and safe environment and property protected under articles 40, 42, 69 and 70 of the Constitution of Kenya. 2. On their part, the respondents maintained that the petitioners’ argument entails mere statutory infractions that ought not to warrant a constitutional petition. 3. Having considered the petition, it is clear that the petitioners have stated with clarity the alleged actions of the 4th respondent, the alleged consequences of the respondents’ actions, together with alleged evidence from the alleged violations, and the corresponding constitutional provisions allegedly violated. I am therefore, persuaded that the petitioners have demonstrated with precision, the constitutional provisions alleged to have been violated by each respondent and the actions complained of and the manner of the violations and therefore I find and hold hat the petition has met the threshold for a constitutional petition. 4. On whether this matter is *sub judice,* the 4th respondent and interested party argued that in view of the pendency of Kakamega ELC Case No. 86 of 2026, the issues, parties and remedies sought in this petition and that earlier suit, are similar and therefore this petition ought to be stayed. 5. Section 6 of the Civil Procedure Act providesthat: ***“No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.”*** 1. I have considered the parties, issues and remedies sought in the amended plaint in Kakamega ELC E86 OF 2026. That dispute is in regard to the legality of subdivision and transfer of titles arising from parcel No. Kakamega/ Lugari/965 formerly registered in the name of Timothy Shakhalaga Erick Jirongo. Timothy through his power of attorney granted to the 1st petitioner herein, sued the beneficiaries of titles arising from the subdivision of the said title, arguing that the subdivision and subsequent transfers of the resultant titles were fraudulent. The plaintiff in that case seeks cancellation of the transfers and eviction of the new registered owners. The 1st, 2nd and 3rd respondents herein are not parties in that suit and the question of the legality and constitutionality of the 4th respondent’s acts and the 1st to 3rd respondents’ acts of alleged violations of their constitutional duties do not arise in the earlier suit. In the premises, it is my finding that the parties, issues and remedies sought in the earlier suit are not similar to those in this petition and therefore I find and hold that this petition is not *sub judice.* 2. Besides, no evidence of a determined case was availed by the 4th respondent to prove its contention that the matters and issues raised in the petition herein have already been determined on merit with finality by a competent court with jurisdiction. For that reason, I find and hold that this petition is not *res judicata*. 3. On the question of *locus standi* Article 22(1) of the Constitutionprovides that: ***“Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.”*** 1. Besides, **Article 22(2)** expressly permits proceedings to be instituted by a person acting on behalf of another person who cannot act in their own name, a person acting as a member of or in the interest of a group or class of persons, a person acting in the public interest, or an association acting in the interest of its members. In the same vein, **Article 70** adopts a broader threshold by providing that every person who alleges that the right to a clean and healthy environment has been denied, violated, infringed or threatened, the person may apply to a court for redress in addition to any other legal remedies that are available in respect to the same matter. The applicant is not required to demonstrate personal loss or injury, but only a threat to the environment right. 2. In addition**, Article 258(1) of the Constitution** provides that; ***“every person has the right to institute court proceedings, claiming that this Constitution has been contravened, or is threatened with contravention.”*** 1. Article 258(2) also permits proceedings to be instituted by a person acting on behalf of another person, as a member or a group or class of persons, in the public interest, or through an association acting in the interest of its members 2. The Court of Appeal in **Mumo Matemu v Trusted Society of Huma Rights Alliance & 5 others [2013] eKLR,** the court recognized the expanded scope of constitutional standing by stating: ***“Today, by dint of Article 22 and 258 of the Constitution, any person can institute proceedings under the Bill of rights, on behalf of another person who cannot act in their own name, or as a member of, or in the interest of a group or class of persons, or in public interest”*** 1. In this matter, in so far as the petitioners have raised constitutional questions arguing that the rights of the people living within proximity with the 4th respondent’s quarry, they have established the necessary *locus standi* to institute the instant petition. I therefore find and hold that the petitioners have locus to institute the petition herein. 2. On whether the petitioners have met the threshold for grant of conservatory orders, it is trite that they must demonstrate a *prima facie* case with chances of success and a real danger that they may suffer prejudice due to violation of their rights; that if conservatory orders are not granted, the petition will be rendered nugatory; and that the petition is made in public interest. Conservatory orders are constitutional remedies in disputes touching on public interest. 3. On whether the applicants have met the threshold for grant of conservatory orders; the Supreme Court’s decision in the case of ***Gatirau Peter Munya v. Dickson Mwenda Kithinji & 2 Others [2014] eKLR*** set the threshold for grant of conservatory orders as follows; **“Conservatory orders, consequently, should be granted on the inherent merit of a case, bearing in mind the public interest, the Constitutional values, and the proportionate magnitudes, and priority levels attributable to the relevant courses.”** 1. In the case of ***Wilson Kaberia Njunja v. Magistrates and Judges Vetting Board & Another [2016] eKLR,*** the court summarized the requirements to be satisfied before grant of conservatory orders as follows; 2. **“It therefore follows that an applicant must satisfy three key principles in order to make out a case for the grant of conservatory orders that is;** 3. **An applicant must demonstrate that he has a prima facie case with likelihood of success and that unless the court grants the conservatory order, there is real danger that he will suffer prejudice as a result of the violation of the Constitution;** 4. **Whether if a conservatory order is not granted, the petition alleging violation of, or threat of violation of rights will be rendered nugatory; and** 5. **The public interest must be considered before grant of a conservatory order.”** 6. In the case of ***Martin Nyaga Wambua v. Speaker of the County Assembly of Embu & 3 Others, Petition No. 7 of 2014,*** the court discussed the aspect of proof of real danger as follows; 7. **“To those erudite words, I would only highlight the importance of demonstration of “real danger”. The danger must be imminent and evident, true and actual and not fictitious; so much so that it deserves immediate remedial attention or redress by the court. Thus an allegedly threatened violation that is remote and unlikely will not attract the courts’ attention.”** 8. The Black’s Law Dictionary, 11th Edition defines public interest as; **“The general welfare ref a populace considered as warranting recognition and protection. Something in which the public as a whole has a stake; especially an interest that justifies governmental regulation.”** 1. It is clear therefore that to persuade the court to grant conservatory orders, an applicant ought to demonstrate that they have a case with merit; that there is imminent and real danger of their Constitutional rights being violated if the orders are not granted; that if the conservatory orders are not granted, their petition seeking protection of fundamental Constitutional rights and or freedoms will be rendered nugatory and the court also ought to consider the stake of the public in the matter. 2. Applying the above threshold to the instant matter, first on the question of whether there is a *prima facie* case, the applicants contended that they have a right to a healthy and clean environment and not to be arbitrarily deprived of their property which ought to be respected by the 4th respondent and that the 4th respondents quarrying activities which involves use of blasting and explosives have resulted in noise and air pollution due to dust as well as cracks in their houses and vibrations and tremors resulting in environmental and property damage. They availed an engineer’s report regarding the cracks in their houses and photographs of their houses. The 4th respondent argued that in fact there is another quarry in the vicinity called Nzioa quarry which is close to Manyonyi Comprehensive school and therefore there is no scientific evidence to show that they are the source of the dust, noise and the ground vibrations complained of. 3. However, there was no contrary report challenging the engineer’s report and the 4th respondent has not denied conducting its crushing and blasting of aggregate within the proximity of the residents of Manyonyi area. The mere fact that there is another quarry 700 meters from the school, cannot of itself absolve the 4th respondent from liability. In any event, this being an environmental dispute, this court is enjoined by provisions of section 3 (5) (f) of EMCA to apply the precautionary principle which requires that where there are threats of damage to the environment, whether serious or irreversible, lack of full scientific certainty shall not be used as a reason for postponing cost effective measures to prevent environmental degradation. 4. For the reasons that the petitioners uncontested argument that the 4th respondent does not have a licence to conduct mining in the disputed area and the fact that the stoppage order was based on the complaints of environmental concerns, while the reasons for lifting the stoppage order did not make any reference to or address the environmental concerns raised but were based on policy consideration to provide material for affordable housing, I am persuaded that the petitioners have established a *prima facie* case. The fact that the petitioners’ complaints touch on public interest cannot be denied as the school and other 26 residents have raised their concerns on the 4th respondent’s activities and the response or lack of it by the 1st to 3rd respondents. 5. On whether there is demonstration of irreparable harm, the alleged impact of the 4th respondents alleged actions on the people and the environment as well as property rights of the petitioners, it is clear to me that the petitioners have demonstrated irreparable injury that may not be fully atoned by an award of damages. 6. Regarding the orders sought, the petitioners sought inter alia for a conservatory order that the 1st respondent be directed to enforce its stoppage order. However, section 156 (5) of the Mining Act provide that the 1st respondent’s orders shall be enforceable by a court as if the same were an order of the court. In the premises, the issue of enforcement is an issue for the court and not the 1st respondent and therefore that prayer is declined. 7. Besides, the petitioners sought a conservatory order directing the 3rd respondent to maintain the closure order issued pursuant to Prayer 6 herein until the petition is heard and determined. In prayer 6, the petitioners sought a conservatory order directing the 3rd respondent to issue an immediate closure order under Section 117(3)(f) of the Environmental Management and Co-ordination Act (Cap. 387) against the quarry operations; and file a return with this Honorable Court within seven (7) days confirming compliance. The said legal provision empowers an environmental inspector with the written approval of the Director General to order immediate closure of a manufacturing plant or establishment which pollute the environment and recommend remedial measures. I do not find any basis for grant of the said order as no inspection has been done and no specific remedial measures have been recommended to warrant grant of the said prayer. Therefore, he same is hereby declined. 8. For the above reasons I am satisfied that the petitioners have met the threshold for grant of conservatory orders. 9. In the premises, I make the following orders; 10. **THAT pending the hearing and determination of the petition herein, this Honorable Court hereby issues a conservatory order restraining the 4th respondent, its agents, servants, employees, contractors, directors, shareholders, or any person acting under its authority, from conducting any mining, blasting, excavation, quarrying, or any other related operations:** * 1. **on any parcel of land derived from or traceable to from the original mother title Kakamega/Lugari /965, including but not limited to Kakamega/Lugari/3229, 3230, 3232, 3233, 3234, 3235, 3237, 3569, 4568, 4569 and 5544; and Kakamega/Lugari/3570, 3571, 4567, 5137, 5138, 5139, 5140, 5481, 5482, 5543 and 5545 (being resultant subdivisions thereof); AND** 2. **on, within, or affecting the following settlement parcels where the Lugari Community resides: numbers 194 (Amena), 198 (Sagara), 197 (Kavala), 292 (Kimomo), 290 (Nyore), 291 (Mmai), 267 (Imbwaga Itumbiru), 273 (Shadrach), 272 (Clement Lichiko), 271 (Shtendes), 20 (Locho), 21 (Kadima), 22 (Alfayo Sagala), 19 (Martin Ambuvi), 201 (Mtengo), and 202 (Marachi); AND** 3. **within 500 meters of any structure, homestead, or building located on the said settlement parcels or on any parcel derived from the original mother title Kakamega/Lugari/965, including but not limited to Kakamega/Lugari/3229, 3230, 3232, 3233, 3234, 3235, 3237, 3569, 4568, 4569 and 5544; and Kakamega/Lugari/3570, 3571, 4567, 5137, 5138, 5139, 5140, 5481, 5482, 5543 and 5545 (being resultant subdivisions thereof).** 11. **THAT pending the hearing and determination of the petition herein, this Honorable Court hereby issues a conservatory order prohibiting the 1st respondent from issuing any mining license, permit, or any other form of authorization to the 4th Respondent or any other person or entity in respect of any parcel of land derived from or traceable to Kakamega/ Lugari /965.** 12. **THAT the costs of this application shall be borne by the respondents.** 13. It is so ordered. **DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT’/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 29TH DAY OF JULY 2026** **A. NYUKURI** **JUDGE** **In the presence of;** Mr. Odiwuor holding brief for Mr. Ochieng’ SC for the petitioners Mr. Odhiambo for 4th respondent Mr. Ogonda for the 2nd interested party