https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4596

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MOMBASA** **ELCL PET NO. E008 OF 2026** ABDIKHANI ABDI RAHMAN HAJI ..................................................... PETITIONER **-VERSUS-** KHANSAM APARTMENTS AND MANAGEMENT CO. LTD ... 1ST RESPONDENT COUNTY GOVERNMENT OF MOMBASA ........................ 2ND RESPONDENT NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY ..... 3RD RESPONDENT NATIONAL CONSTRUCTION AUTHORITY ..................... 4TH RESPONDENT **RULING** **1.** A stranger knocks at the door of the neighbour’s house. He has never lived in it. He has never paid rent for it. He has never been invited across its threshold. But he tells the neighbour: *stop what you are doing inside your house, come out into my yard, and let us hold your family meeting here — under my roof, at my table, on my terms*. That, in essence, is the application before me. **2.** The Applicant, Mr. Abdikhani Abdi Rahman Haji, is not a party to Mombasa ELC Petition No. E001 of 2026. He learned of that Petition, on his own sworn account, only on 6th June 2026, from his neighbour Mr. Ali Abubakar Rashid — himself an Interested Party in E001. He filed the present Petition two days later. And within the same breath, on the eve of judgment in E001 which is fixed for delivery today, 16th July 2026, he asks this Court to arrest that judgment, to recall that file from Ombwayo, J., and to have both Petitions heard together by the same judge. Every one of those prayers, save one, must fail. *Nemo judex in causa sua* has a sister maxim, less quoted but no less true: *nemo suum est agri finium arbitrum vicini — no man is the master of the boundary of his neighbour’s field*. So too here: no litigant is the master of a proceeding in which he is not, and has never been, a party. **The Application** **3.** By a Notice of Motion dated **8th June 2026**, brought under a Certificate of Urgency and expressed to be under Sections 1A, 1B, 3 and 3A of the Civil Procedure Act and Rules 13, 19, 21 and 30 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, the Petitioner/Applicant seeks the following orders: 1. ***Spent.*** 2. ***That the instant proceedings be placed before Hon. Justice Antony O. Ombwayo for directions on the prospects of having the subject Petition heard together, and by the same judge, with Mombasa ELCEPPET/E001/2026: Khansam Apartments and Management Co. Ltd v County Government of Mombasa & Charles Changawa.*** 3. ***That this Honourable Court be pleased to arrest, stay or otherwise hold in abeyance the judgment in Mombasa ELC Petition No. E001 of 2026, scheduled for delivery on 16th July 2026.*** 4. ***That Mombasa ELC Petition No. E001 of 2026 and the present Petition be heard together and by the same judge.*** 5. ***That a directions date be fixed for that purpose.*** 6. ***Costs be in the cause.*** **4.** The application is supported by the affidavit of the Applicant sworn on **8th June 2026**. Its core is that both Petitions **concern Plot No. Mombasa/Block XXVI/351**, that the Applicant’s property, **Title No. Mombasa/Block XXVI/607**, neighbours that plot, and that his right to a clean and healthy environment under Article 42 of the Constitution is infringed by the intended construction. He therefore says the two Petitions ought to be tried together to avoid multiplicity of litigation over the same subject matter. **The 1st Respondent’s Opposition** **5.** The 1st Respondent, Khansam Apartments and Management Co. Ltd, opposes the application through the replying affidavit of its director, Mr. Sammy Kamuio Mukuri, sworn on **15th June 2026**. In substance, the 1st Respondent contends that: the two Petitions are not identical; the parties differ; the Applicant is a stranger to **E001 of 2026**; consolidation cannot be used, at the instance of a non-party, to arrest a judgment in a matter which has been fully heard and is pending delivery; and that Mr. Charles Changawa and Mr. Ali Abubakar Rashid — both parties in E001 — are neither before this Court nor served with this application. The 1st Respondent also invokes the doctrines of exhaustion and constitutional avoidance and prays for dismissal with costs. **The 4th Respondent’s Response** **6.** The 4th Respondent, the National Construction Authority, opposes the application through the replying affidavit of its Compliance Manager, Arch. Stephen Mwilu sworn on **9th July, 2026**. It deposes that upon receipt of all requisite documents including approvals from the 2nd and 3rd Respondents, it issued Compliance Certificate No. 30100615710513, valid from 30th September 2024 to 30th September 2026 in respect of the very project the subject of dispute. It further avers that it is not a party to E001 of 2026, that the two Petitions concern regulatory regimes falling within different statutes, and that consolidation would be prejudicial and would not meet the legal threshold. **Directions on Submissions** **7.** This Court directed that the application be canvassed by way of written submissions. The Applicant filed his on **17th June 2026** and the 1st Respondent filed his on **30th June 2026**. I have read them with care. I now turn to the issues that fall for determination. **Issues for Determination** **8.** The prayers before me are six but the questions are three, and they are quite distinct. To collapse them would be to do injustice to their differences. They are: 1. Whether this Court has jurisdiction to *arrest, stay or hold in abeyance* the judgment scheduled for delivery on **16th July 2026** in **Mombasa ELC Petition No. E001 of 2026 by Hon. Ombwayo, J.** — that is, Prayer (iii). 2. Whether, on the merits, this Court should direct that Mombasa **ELC Petition No. E001 of 2026** and the present Petition be *heard together and by the same judge* — that is, Prayers (ii), (iv) and (v). 3. The appropriate order as to costs. **Issue 1: The Prayer to Arrest the E001 Judgment** **9.** On this head there is no argument, only law. The Environment and Land Court is a specialised superior court established under Article 162(2)(b) of the Constitution and Section 4 of the Environment and Land Court Act. Every judge of this Court sits with the like status of a judge of the High Court. Between Justice Ombwayo and myself there is no superior and no subordinate: we are peers, each seized of our own dockets, each answerable to our common appellate hierarchy, and neither empowered to command the other. **10.** The Supreme Court in ***Kenya Hotel Properties Limited v Attorney General & 6 Others [2022] KESC 62 (KLR)*** put the matter beyond debate. Their Lordships held, and I quote: *“the rule of thumb is that superior courts cannot grant orders to reopen or review decisions of their peers of equal and competent jurisdiction much less those court higher than themselves…”* **11.** The same principle was affirmed by the Supreme Court in ***Republic v Karisa Chengo & 2 Others [2017] eKLR***, where it was held that courts established under Article 162(2) are courts of equal status with the High Court, with jurisdiction over the subject matters constitutionally assigned to them — and, by necessary implication, without appellate or supervisory jurisdiction over one another. The Court of Appeal in ***Muiruri v Credit Bank Limited & 2 Others [2008] KECA 263 (KLR)*** spoke in stronger language still: *any decision by which one court arrogates to itself review powers over a court of concurrent jurisdiction is, at best, a nullity*. To adopt ***Cardozo, J.***’s image, such an order would be “a stone dropped into the pool of law” whose ripples the profession would spend years disowning. **12.** More recently, my brother Judge in ***M’Mwarama v M’Ipwi (Sued as the Legal Representative of the Estate of Petero M’Impwe Nabea) [2026] KEELC 1179 (KLR)*** put it thus, and I respectfully adopt his words: *“The Applicant must not be allowed to create judicial absurdity by seeking orders which will bring forth incongruence in the record of the court.”* To arrest Ombwayo, J.’s judgment from the seat of a peer would be to invite precisely that absurdity. It would be, in the phrase of ***Lord Denning M.R.***, *“to put the cart before the horse, and then to whip the cart.”* **13.** And there is a deeper principle at stake. If one ELC judge could stay the judgment of another simply because a stranger filed a fresh Petition on the verge of delivery, no judgment in this Court would ever be safe. The docket would become a menu; the litigant a diner; the judge a waiter. That is not our system. As Nyarangi, J.A. reminded us long ago in ***The Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Limited [1989] KLR 1***, “jurisdiction is everything. Without it, a court has no power to make one more step.” I take not one such step, in aid of Prayer (iii). **14.** Prayer (iii) is disallowed for want of jurisdiction. **Issue 2: The Prayer for Joint Hearing / Consolidation** **15.** The jurisdictional bar dispatches Prayer (iii). Prayers (ii), (iv) and (v) are of a different order: they invoke this Court’s discretionary case-management power to order that the two petitions be heard together. The primary source of that power, in a matter such as this brought under Articles 22, 42 and 70 of the Constitution, is ***Rule 17 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013*** (“the Mutunga Rules”), which provides that “*the Court may on its own motion or on application by any party consolidate several petitions on such terms as it may deem just*.” To the extent that any procedural gap arises — for instance, as to the joinder of a stranger into a pending petition — the inherent power preserved by **Rule 3(8)** of the Mutunga Rules admits, by analogy, the provisions of *Order 11 rule 3(2)(i) and Order 1 rule 10 of the Civil Procedure Rules, 2010*: see ***Rebecca Muriuki t/a Kahaari (Proposed Third Party) [2020] eKLR*** and ***Senate of the Republic of Kenya & 4 Others v Speaker of the National Assembly & Another [2020] eKLR***. That power exists. But like every discretion, it is exercised on principle and on the record, not on sentiment. ***On this record it must be declined, for four cumulative reasons.*** **16. *First****,* the moment has passed. The classic function of consolidation is to prevent duplicated evidence, contradictory findings and wasted judicial time by trying together, from the outset or before hearing, suits that share substantial questions of law and fact. It is a tool for the front end of the process, not the back end. **Petition E001 of 2026** has been fully argued. Written submissions have been filed and exchanged by the Petitioner (dated 21st May 2026), the County Government (dated 4th June 2026) and the Interested Party (June 2026). Judgment is fixed for 16th July, 2026. To consolidate at this hour would be to unravel a hearing already complete and to punish a diligent litigant for the accident of a neighbour’s belated discovery. That is the very opposite of the just, proportionate and non-prejudicial exercise of discretion which our jurisprudence demands: see ***Kithi v The Land Registrar, Kilifi County & 3 Others [2023] KEELC 17227 (KLR)*** and the line of ELC authorities dismissing consolidation where the nexus of parties, issues and stage of proceedings is not made out. **17. *Second****,* the parties are not the same. **Petition E001 of 2026** is brought by Khansam Apartments as Petitioner against the County Government of Mombasa (1st Respondent) and Mr. Charles Changawa (2nd Respondent), with Mr. Ali Abubakar Rashid as Interested Party. **Petition E008 of 2026** is brought by Mr. Haji as Petitioner against Khansam Apartments (1st Respondent), the County Government (2nd Respondent), NEMA (3rd Respondent) and NCA (4th Respondent). Mr. Changawa and Mr. Rashid are strangers to this file. Yet the orders sought would directly affect their case in E001. To grant them would violate the most elementary rule of natural justice — *audi alteram partem* — by binding persons not heard. The Applicant has produced no proof that either Mr. Changawa or Mr. Rashid was served with this motion. This Court will not act blindfolded. **18. *Third****,* notwithstanding the shared plot, the causes of action are materially different. **Petition E001 of 2026** is a developer’s petition. It pleads Articles 40 and 47 of the Constitution. Its heart is the lawfulness of the County’s alleged revocation of **Development Permission No. P/2024/00371 on 9th October 2024,** the criminal proceedings said to have flowed from it, and the disobedience of criminal-court orders. **Petition E008 of 2026** is a neighbour’s petition. It pleads Articles 42 and 70 — the right to a clean and healthy environment — and arraigns two regulators (NEMA and NCA) who are strangers to E001. In E001, the Petitioner wants construction to proceed; in E008, the Petitioner wants it stopped. The two cases meet at the plot but part company at every other point. Common ground on geography is not common ground in law. **19. *Fourth****,* and most tellingly, this application is in substance a collateral attack on E001 of 2026 by a self-confessed stranger to it. The Applicant admits he learned of E001 only on **6th June 2026** from Mr. Rashid. If he genuinely wished to be heard in E001, the door was open and the key was in his hand: he could have moved Ombwayo, J. for joinder — the Mutunga Rules being silent as to the procedure for joinder in a pending petition, *Order 1 rule 10 of the Civil Procedure Rules* would have applied by analogy pursuant to **Rule 3(8)** of the Mutunga Rules. He did not. Instead, he opened his own file and, from within it, seeks to bend Ombwayo, J.’s file to his purposes. That is forum shopping in all but name, and this Court will not countenance it. The concern was flagged squarely by the Court of Appeal in ***Muiruri v Credit Bank (supra)***: “It would be a usurpation of power to push forward such an approach.” **20.** Nor does the invocation of Article 42 alter the analysis. The right to a clean and healthy environment is precious. But precious rights are vindicated through proper procedure, not around it. This Court has original jurisdiction under **Section 13(3)** of the Environment and Land Court Act to determine environmental-rights claims; the Applicant is fully at liberty to prosecute **Petition E008 of 2026** to conclusion in the ordinary way, before whichever judge is allocated it. He does not need consolidation to be heard. He needs only to be patient with the process he has chosen. **21.** Prayers (ii), (iv) and (v) are accordingly rejected on the merits. **Issue 3: Costs** **22.** The 1st Respondent has been put to the trouble of defending, on the nape of a judgment fully argued and fully awaited, a motion at the instance of a non-party. Costs must follow the event. There is no reason on this record to depart from the ordinary rule. **Disposition** **23.** For the reasons I have given, the Notice of Motion dated **8th June 2026** is **dismissed in its entirety**. I make the following consequential orders: 1. ***Prayer (iii), for the arrest, stay or holding in abeyance of the judgment scheduled for delivery on 16th July 2026 in Mombasa ELC Petition No. E001 of 2026, is declined for want of jurisdiction.*** 2. ***Prayers (ii), (iv) and (v), for the two Petitions to be heard together and by the same judge, are declined on the merits.*** 3. ***For the avoidance of doubt, nothing in this Ruling shall be construed as staying, delaying or otherwise affecting the delivery of judgment by Hon. Ombwayo, J. in Mombasa ELC Petition No. E001 of 2026.*** 4. ***The respondents in the Petition are granted fourteen (14) days to file and serve their responses from the date hereof.*** 5. ***The petitioner shall be at liberty to file and serve a further affidavit, if any, and file their submissions within fourteen (14) days of service by the respondents, but not later than thirty (30) days from the date hereof.*** 6. ***The respondent to file and serve their submissions within fourteen (14) days of service by the petitioner.*** 7. ***The parties will highlight submissions on 3rd November, 2026, and Judgment will be fixed on the same day.*** 8. ***The Petitioner/Applicant shall bear the costs of this application, to be paid to the 1st Respondent, and to be taxed if not agreed.*** ***It is so ordered.*** Ruling dated, signed at Mombasa and delivered virtually via Microsoft Teams this 16th day of July, 2026. ....................................................... **B. A. AKELLO, OGW** **JUDGE** **In the presence of:** Gillian — Court Assistant Masore for the Petitioner/Applicant Makau for the 1st Respondent Tajbahi for the 2nd Respondent Ganya for the 3rd Respondent N/A for the 4th Respondent