https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4684

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT & LAND COURT AT HOMA BAY** **PETITION NO. E002 OF 2024** **EVANCE OTIENO OLOO GOR..............................................PETITIONER** **VERSUS** **COUNTY GOVERNMENT OF HOMA BAY............1ST RESPONDENT** **THE COUNTY EXECUTIVE MEMBER FOR WATER, IRRIGATION, SANITATION, ENVIRONMENT, ENERGY FORESTRY AND CLIMATE CHANGE........................................................2ND RESPONDENT** **THE CABINET SECRETARY, MINISTRY OF ENVIRONMENT CLIMATE CHANGE AND FORESTRY.....................3RD RESPONDENT** **THE CABINET SECRETARY, MINISTRY OF FINANCE………………………………………….......4TH RESPONDENT** **NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY...................................................................5TH RESPONDENT** **WATER RESOURCES AUTHORITY………………...6TH RESPONDENT** **RULING ON PRELIMINARY OBJECTION** **BACKGROUND** 1. The Petitioner herein instituted this petition seeking for various reliefs. The main relief being inter-alia a declaration that the 1st and 2nd Defendants have violated the provision of Articles 10, 42, 70, 174, 176 and 201 and the fourth schedule of the Constitution and the legislation that implement the said Constitutional provisions. 2. Subsequently, a response dated 28th October 2024 was filed by the 1st and 2nd Respondents. 3. In the response the respondents state that the Petition and the application are bad in law as the Court lacks jurisdiction to entertain the same. That the Petition concerns issues of allocation, disbursement and allocation of finance for the financial year 2023/2024 which has lapsed. That Public participation was done and that the 1st respondent complied with the requirements under all environmental laws. That an audit of the Climate Change Act was done. **PRELIMINARY OBJECTION** 1. The Preliminary objection is dated 14th October 2024. 2. In the said Preliminary Objection, the 1st and 2nd Respondents state that; 3. This Honourable Court lacks jurisdiction to entertain the Petition and application by virtue of the mandatory provision of section 129 of the Environmental Management and Coordination Act. 4. That there is no cause of action against the 1st and 2nd Respondent. 5. That the Honourable Court lacks jurisdiction by virtue of section 84, 85 and 86 of the Water Act. 6. That funds were allocated and released in the last financial year. 7. The application and Petition are bad in law by virtue of doctrine of exhaustion and failing to disclose Constitutional violation. 8. General Public interest militates towards dismissal of the Petition. **DIRECTIONS** 1. Directions on hearing and disposal of the Preliminary Objection was given and the 1st and 2nd Respondent Counsel confirming filing submissions. **SUBMISSIONS** 1. The 1st and 2nd Respondents Counsel filed submissions dated 31st October 2024 and same were adopted by the Court. The 1st & 2nd Respondents reiterated the issues raised in the preliminary objection. 2. The 1st and 2nd Respondent rely on the authority of Owner of **Motor Vessel Lilian v Caltex (Kenya) Ltd 1989 eKLR Diana Kethi Kilonzo & Another v IEBC, Speaker National Assembly v Njenga Karume, Amy Kagendo Mate v Maurice Munyao & 148 Others, Alice Mweru Ngai v KPLC**, **Joseph Njuguna Mwaura v Republic [KLR] eKLR,** **Housing Finance of Kenya v Embakasi Youth Development Project, Alfred Njau & 5 Others v City Council of Nairobi.** **DETERMINATION.** 1. Having considered the preliminary objection, the Submissions and the Law I now formulate the Issues for determination as to whether the Preliminary Objection is merited. 2. I will refer to the case of **Mukisa Biscuit V. West End Distributors** which defines the scope and rules of a preliminary Objection. 3. The key legal principles in a preliminary objection are that a preliminary objection is a pure point of law which has been pleaded or which arises by clear implication of the Pleadings. 4. A preliminary objection must also be argued on the assumption that all facts pleaded are Correct. The question to be posed and answered is whether the preliminary objection raises pure point of law. 5. The answer, upon perusal of the same, is that the issues raised are mixed facts and law. 6. The issue of jurisdiction is premised on mandatory provision of section 129 of the Environment and Management and Coordination Act. The other issues are related to the Climate Change Act, The Water Act, allocation and disbursement of funds, public participation and financing. 7. Are these pure legal Issues? The answer is NO, for the simple reason the issues relate to either compliance or non-compliance with Environmental Law, on whether funds have been allocated, whether public participation was done and whether there is any violation of rights. 8. The 1st and 2nd Respondents in opposing the Petition have sworn a replying affidavit and in which issues raised in the Petition have been rebutted. 9. In the court’s view some of the issues raised will require enquiry either through presentation of documentary evidence and further presentation to be made through testimony. Therefore, the Court notes that, as pleaded, the notice of preliminary objection does not raise pure issues of law. 10. The Court also notes that the public participation is not a pure issue of law. It is a fundamental Constitutional principle, a socio - political obligation and a practical process. It is entrenched as a mandatory Constitutional requirement and is legally required when making public policy decisions enacting legislation and managing budgets. 11. The court in **British American Tobacco Kenya, PLC v Cabinet Secretary, Ministry of Health & Others 2019** ruled that public participation is not a mere "Cosmetic" legal check box to be ticked. It is about substance of the engagement. 12. On Climate Change the Respondents contend that they have developed the County Climate Change action plan which outlines mitigation and adaptive options to the impact of Climate Change. The respondents also deny knowledge of fraud and forgery emanating from implementation of projects. They also state that the Petition has been overtaken. 13. Regarding the doctrine of exhaustion **Justice Mativo in the Case of Night Rose Cosmetics [1972] Ltd v Nairobi County Government & 2 Others [2018] eKLR c**aptures the following: **" The exhaustion doctrine is only applicable where the alternative forum is accessible, affordable, timely and effectively. A remedy is available if the Petitioner can pursue it without impediment. It is deemed effective, if it offers a prospect of success and is found sufficient and if it is capable of redressing the complaint in its totality. A remedy is considered available only if the applicant can make use of the circumstance of the case.** 14. Further, in the **Case of Dismas Wambola v Cabinet Secretary Treasury & 5 Others [2017] eKLR**, the Court stated: " **A preliminary objection must first raise a point of law based on ascertained facts and not evidence. Secondly, if the objection is sustained, that should dispose of the matter. A preliminary objection is in the nature of a legal objection not based on the merits or facts of the Case, but must be on pure points of law. It may be noted that the preliminary objections are narrow in scope and cannot raise substantive issues raised in the Pleadings that may have to be determined by the Court after perusal of evidence. In the Case of Chimweli Jangaa Mangale & 3 Others V Hamisi Mohamed Mwawasa & 15 Others [2016] eKLR the Court of Appeal rendered itself thus:** **" The Constitution has therefore created a specific Court, with equal status to the High Court and Conferred on it jurisdiction to hear and determine disputes relating to, among others, use, occupation, title to land and any other dispute relating to land.’’ It cannot be gain said that the Constitution created a specific mechanism for redress of particular grievances, that mechanism must be resorted to. Accordingly, where issues involving the environment or land, raise constitutional issues or issues for protection and enforcement of the right to land as property, the Environment and Land Court (ELC) will have jurisdiction to hear and determine the dispute. We are satisfied that the appellants claim that the ELC lacks jurisdiction to enforce constitutional right to totally bereft of merit.”** 1. Based on the above authority, I find that the constitutional Petition as it is, has raised issues of projects in Climate Change being irregular and unlawful. That no Public Participation was done. No environmental impact assessment was done. Payments made were fraudulently and public resources were squandered and mismanaged. Citizens were not appraised of the Climate Change project. On infringement of rights, the Petitioners place reliance on Articles 10, 42, 70 & 201 of the Constitution, Section 58 of EMCA and Section 5, 6 and 15 of the Climate Change Act. The remedy sought is that rights have been violated under Articles 10, 42, 70, 174, 175, 176 and 201 of the Constitution. 2. In the Circumstances, I find that the preliminary objection raises mixed issues which takes it away from the domain of preliminary objection. I find that the issues raised in the Petition are violation of rights as a result of failure by the Respondents to comply with the legal procedural requirement. These issues can be properly interrogated through evidence, and not, in a summary manner. 3. This matter should go to hearing so that the issue of whether or not there was public participation, whether or not the license was issued by NEMA, whether the provisions of the Climate Change Act has been adhered to and whether there was misappropriation of public finance can be heard and determined 4. The 2nd Respondent also says that the term of the project has come to an end. I equally find this is a factual matter which can be substantiated by evidence and not determined in a summary trial . 5. I therefore dismiss the P.O with no Order as to Costs. It is so ordered. RULING, DATED AND DELIVERED AT HOMA BAY VIA VIRTUAL PLATFORM THIS 10TH DAY OF JULY 2026. **In the presence of;** 1. Odongo holding brief for Akello for the first and second respondent- present 2. Obiero for plaintiff – absent 3. Ms. Mercy Awino – court assistant – present **JUSTICE JOHN WALTER WANYONYI-JUDGE** **10.7.2026**