https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4902

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LANFD COURT AT NYANDARUA** **ELC MISC NO E001 OF 2026** **COUNTY GOVERNMENT OF NYANDARUA.......................PLAINTIFF** **VERSUS** **EASTERN RIFT SAWMILLS LTD.........................................DEFENDANT** **RULING:** The Applicant herein filed a Notice of Motion dated 9/3/2026 seeking the following orders: - 1. THAT this Application be certified urgent and heard ex-parte in the first instance. 2. THAT pending inter partes hearing of this Application, this Court be pleased to issue a temporary injunction restraining the Respondent whether by itself, agents, servants or assigns from operating, conducting, advertising, selling burial plots or interring human remains or cemetery – related activities on L.R No 10701/SOUTH MAGUMU. 3. THAT a conservatory order be issued restraining the Respondent from interfering with or altering the site in any manner that would impede a public health audit. 4. THAT an order of enforcement do issue authorizing the Appellant through its Department of Physical and land use Planning and Public Health to seal the premises pending compliance with statutory requirements. 5. THAT the officer commanding station or such other lawful authority, Magumu area be directed to provide security to the Applicant’s enforcement officers to ensure compliance with these orders. 6. THAT costs be provided. These were the prayers in these proceedings christened ELC Application No. E001 OF 2026. The same was brought under a Certificate of Urgency of even date. On 11/3/2026 I certified the Application urgent and asked the Applicant to have it served. On 30/4/2026, Mr. Peter Waiyaki for the Respondent appeared in Court during the scheduled Mention of the matter and notified the Court that he had filed a Notice of Preliminary Objection dated 29/4/2026 and I directed the Applicant to file a response to the same within 14 days. In the Notice of Preliminary Objection dated 29/4/2026, the Respondent urged the Court that: - 1. This suit offends Order 3 Rule 1 of the Civil Procedure Rules which requires that every suit be instituted by way of a Plaint or in such other manner as may be prescribed. No substantive suit has been filed and the suit filed should be struck out. 2. The Applicant’s prayer for an order of injunctive relief is not anchored on a substantive suit. It is fatally defective. In the response to the Notice of Preliminary Objection, the Applicant had the following to counter the Notice dated 27/5/2026: - 1. The Plaint was **drafted** but not filed at the same time on the Application and that minor delay should not be a cause for justice not to be administered. 2. The Constitution of Kenya, 2010 provides in Article 22 (3) and Article 159 (2) (d) respectively that: - 22. (1) 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. (2) In addition to a person acting in their own interest, court proceedings underclause (1) may be instituted by— (a) a person acting on behalf of another person who cannot act in their own name; (b) a person acting as a member of, or in the interest of, a group or class of persons; (c) a person acting in the public interest; or (d) an association acting in the interest of one or more of its members. (3) The Chief Justice shall make rules providing for the court proceedings referred to in this Article, which shall satisfy the criteria that— (a) the rights of standing provided for in clause (2) are fully facilitated; (b) formalities relating to the proceedings, including commencement of the proceedings, are kept to the minimum, and in particular that the court shall, if necessary, entertain proceedings on the basis of informal documentation; (c) no fee may be charged for commencing the proceedings; (d) the court, while observing the rules of natural justice, shall not be unreasonably restricted by procedural technicalities; and (e) an organisation or individual with particular expertise may, with the leave of the court, appear as a friend of the court. (4) The absence of rules contemplated in clause (3) does not limit the right of any person to commence court proceedings under this Article, and to have the matter heard and determined by a court. 1. The Plaint has been filed and served accordingly hence there is existence of a substantive suit and the Plaintiff seeks that the prayers sought be given by this Court. I directed the parties to file written submissions which I have considered before writing this Ruling. To begin with, after the Notice of Preliminary Objection was filed, the Applicant filed a Plaint the same purportedly dated 9/3/2026 but filed in Court on a date that is not clear. While the Plaint is worded. “……………….ELC Case No......................of 2026……….” the Originating Summons is worded: “…………..ELC Application No. E001 of 2026………….” While the Title of the Application has the County Government of Nyandarua as the “**Applicant**”, the Plaint has the County Government of Nyandarua as the “ **Plaintiff**”. Eastern Rift Valley sawmills Ltd is named as “ **Defendant** “ in the Plaint but “**Respondent**” in the Application. I am therefore not convinced that the two were cooked in the same pot. I believe the filing of the Plaint was a kneejerk reaction to the Preliminary Objection and had not been meant to be filed at all. Otherwise the Title would then have been the same in both documents. I have had the occasion to rule on this situation severally in the past. For instance, In **Nyamira ELC Miscellaneous Case No. E007 of 2023,** I held that: “………. underOrder 3 Rule 1 (1) of the Civil Procedure Rules: ***“…..every suit shall be instituted by presenting a Plaint to the court, or in such other manner as may be prescribed.”*** Other ways of presenting a suit in court are by way of: - * **Judicial Review.** * **Originating Summons.** * **Petition.** * **Memorandum of Appeal.** * **Originating Motion.** * **Appeal.** Not by way of a Notice of Motion. Miscellaneous Civil Application is not one of them. In the Case of ***Fidelity Bank Limited vs John Joel Kanyali (2014) e KLR*** the court held as follows: - ***“ ……. A Notice of Motion is not a manner prescribed for instituting a suit……….*** **It cannot be a pleading as defined in Cap 21 and its Rules. Accordingly, there is no suit before court which suit can sustain the Notice of Motion.”** I also agree with the Respondent’s Counsel that: - “ …………………………Applications are for interlocutory matters in the suit. Any claim has to be commenced by a Plaint or where the rule provides by an Originating Summons………………….”. As was held in Adala vs Anjele (1988) eKLR. I do not agree with Mr. Gatore that the new Constitution has changed this position. Section 19(2) of the Environment and Land Court Act came after the Constitution of Kenya, 2010. It provides that: - “ ……………The Court shall be bound by the procedure laid down by the Civil Procedure Act (CAP 21 Laws of Kenya)……..” Equally, Order 3 Rule 1 of the Civil Procedure Rules provides that: - “ ………………………. Every suit shall be instituted by presenting a Plaint to the Court, or in such other manner as may be prescribed…………” was amended in 2012 and it was not deemed necessary by the Rules Committee to amend the provision on the procedure of instituting a suit. All the Authorities above also came after the Constitution of Kenya, 2010 was promulgated and the same have not been upset by a higher Court. It gives me delight to note that the High Court has also found it fit to fortify the same position 9 years after the promulgation of the 2010 Constitution of Kenya in Proto Energy Ltd -vs- Hashi Energy Ltd (2019) eKLR thus:- “…………………. Order 3 Rules (i) and (ii) provide that every suit shall be instituted by way of a Plaint. As a general Rule a suit can only be instituted by way of Plaint, Petition or originating summons. A Notice of Motion is not legally recognized as an Originating process. A Notice of Motion can only be filed within a properly instituted suit. The Applicants failed to file any originating process in this matter. I find that the attempt to institute this suit by way of a Notice of Motion renders the entire suit defective….....” The Applicant contends that: - “......................the Court while observing the Orders of natural justice shall not be unreasonably restricted by procedural technicalities………......” I agree with the Applicant that the Court ought not to be **UNREASONABLY** restricted by procedural technicalities. But the instance of suits filed in a proper manner is not unreasonable restriction. We need to understand that Rules are handmaidens of the law without which the master would be incapacitated. I also do not agree with the Applicant’s comprehension of the provision of the Constitution that justice shall be administered without undue regard to procedural technicalities. Again, the word here is **UNDUE REGARD**. And to resonate with this, the case of Raila Odinga -vs- IEBC & others (2013) eKLR (also after the new Constitution of Kenya, 2010 had come into force and Article 159 2 (d) working, the Supreme Court held that:- “......…………. Article 159 (2) (d) of the Constitution simply means that a Court of Law should not pay undue attention to procedural requirements at the expense of substantive justice. It was never meant to oust the obligation of litigants to comply with procedural imperatives as they seek justice from the Court……….....” If we were to allow litigants to come to Court in any manner they deem fit to, then it would defeat the necessity to have the procedures laid down in the Civil Procedure Rules, the Environment and Land Court Act and the Practice Directions. This is why I would agree with the Supreme Court by which I am strictly bound in the case of Michael Mungai -vs- Housing Finance Co. (k) and 5 others (2017) eKLR that :- “... ...Before a Court of law can invoke Article 159 of the Constitution and focus on substantive justice, the Court must at the first instance be properly moved and there must be before it, a legitimate and cognizable cause of action...........” And in the case of Gretsa Investments Ltd -vs- Gulf African Bank Ltd & Another [ 2020 ] KEHC 923 (KLR) again a very recent Decision, the Court held that :- “.............................an Application for injunction under Order 40 of the Civil Procedure Rules is predicated on a suit filed by the party seeking the injunction. An injunction without a substantive claim is a plea in vain and cannot lie in law or at all...............” Need I say more. I believe not. The “suit” herein, originated by a Notice of Motion therefore stands struck out with costs to the Respondent. Ruling read**, signed and delivered at Nyandarua this 30th Day of July, 2026.** **MUGO KAMAU** **JUDGE** **In the Presence of: -** **Court Assistant: Samson** **Appellant’s Counsel: Ms. Wanjiku .** **Respondent’s Counsel: .Ms. Mukobi**