Lamba & another v Pearls Kids Academy Limited & 3 others (Environment and Planning Petition E008 of 2024) [2026] KEELC 3430 (KLR) (5 June 2026) (Ruling)

Lamba & another v Pearls Kids Academy Limited & 3 others (Environment and Planning Petition E008 of 2024) [2026] KEELC 3430 (KLR) (5 June 2026) (Ruling) Neutral citation: [2026] KEELC 3430 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Planning Petition E008 of 2024 OA Angote, J June 5, 2026 Between Davinder Lamba 1st Petitioner Sunil Lalchand Shah 2nd Petitioner and Pearls Kids Academy Limited..................1St Respondent Savita Virchand Shah 1st Respondent Savita Virchand Shah 2nd Respondent National Environmental Management Authority 3rd Respondent Nairobi County Government 4th Respondent Ruling Background 1.What is coming up before the court is the 1st and 2nd Petitioners’ notice of preliminary objection dated 23rd January, 2026 objecting to the 1st Respondent’s application dated 21st day of November 2025 on the grounds that:i.The application is sub- judice, the applicants have a similar application made in the court of appeal vide Civil Application No. E743 of 2025 thus contravenes Section 6 of the Civil Procedure Act.ii.The application contravenes Order 45 Rule 1 (a) for an appeal has been preferred and the notice of appeal already lodged. 2.The Objection was canvassed by way of submissions. The Petitioners’ advocate filed their submissions on 23rd January 2026. Counsel submitted that this court delivered judgment on 14th August, 2025 and consequently became functus officio, save for the limited jurisdiction expressly conferred by law. 3.It was contended that despite being granted timelines of ninety days and a further one hundred and twenty days to comply with the judgment, the 1st Respondent failed to do so and only moved the court after the lapse of the timelines issued in the judgment. 4.Counsel further submitted that the impugned application is sub judice and offends Section 6 of the Civil Procedure Act on account of the existence of Civil Application No. E743 of 2025 before the Court of Appeal, in which the Applicant seek similar reliefs. 5.It was submitted that a party cannot maintain parallel proceedings before courts of competent jurisdiction involving the same parties and subject matter. Counsel relied on Black’s Law Dictionary (9th Edition), noting that the sub judice rule is intended to prevent multiplicity of suits, curb abuse of court process, and avoid the risk of conflicting decisions from courts of concurrent jurisdiction over the same dispute. 6.Reliance was placed on the case of Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties) (Advisory Opinion Reference 1 of 2017) [2020] KESC 54 (KLR) (Constitutional and Human Rights) (7 February 2020). 7.Counsel additionally argued that the application contravenes Order 45 Rule 1 of the Civil Procedure Rules since the 1st Respondent, having already filed a notice of appeal, is deemed to have elected the appellate process subsequently disentitling him from pursuing review proceedings before the same court. It was therefore urged that the filing of the review application amounted to an abuse of the court process and that the same ought to be dismissed with costs. 8.The 1st Respondent filed submissions on 20th April, 2026. Counsel submitted that the Petitioners’ objection founded on Order 45 Rule 1(a) of the Civil Procedure Rules is based on a misapprehension of the appellate record and the nature of the proceedings before the respective courts. It was argued that there exist two distinct decisions in the matter, namely the substantive judgment delivered on 14th August, 2025 and the interlocutory order delivered on 5th December 2025 declining to certify the Applicant’s application as urgent. 9.Counsel submitted that the notice of motion before the court specifically seeks review of the judgment delivered of 14th August, 2025 on the basis of discovery of new and important evidence relating to public participation. In contrast, the proceedings before the Court of Appeal in Civil Application No. E743 of 2025 relate solely to the interlocutory order of 5th December 2025 concerning refusal to certify the matter as urgent and the scheduling of hearing dates. 10.According to counsel, the appellate proceedings did not challenge the substantive findings contained in the judgment of 14th August 2025. As such, no appeal has been preferred against the decree sought to be reviewed and consequently the 1st Respondent is properly before the court under Order 45 Rule 1(a) of the Civil Procedure Rules. 11.On the issue of sub judice under Section 6 of the Civil Procedure Act, counsel submitted that the doctrine is inapplicable as the matters before the two courts are neither directly nor substantially the same. 12.It was argued that the Court of Appeal is concerned with the narrow procedural question of whether the court erred in declining to certify the matter as urgent. On the other hand, the present application raises a substantive evidentiary question as to whether newly discovered evidence concerning public participation justifies review and setting aside of the judgment delivered on 14th August, 2025. 13.Counsel maintained that the Court of Appeal is not being called upon to determine the substantive validity of the Applicant’s approvals, licences or change of user approvals and therefore there was no risk of conflicting decisions. Analysis and determination 14.Having considered the preliminary objection, and the submissions thereto, the sole issue that arises for determination is whether the Preliminary Objection is competent and if so, merited. The threshold of a preliminary objection was set out by the Court of Appeal in the locus classicus case of Mukisa Biscuits Manufacturing Co. Ltd. vs. West End Distributors (1969) EA 696 at 700 wherein Law, JA stated as follows:“…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 or 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.” 15.Newbold, P further held:“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. The improper raising of points by way of Preliminary Objection does nothing butt unnecessarily increases costs and, on occasion, confuse the issues. This improper practice should stop.” 16.The Supreme Court in the case of Hassan Ali Joho & Another vs Suleiman Said Shahbal & 2 Others [2014] eKLR re-affirmed the principle as set out in the Mukisa Case(supra) stating:“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 or 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 … 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.” 17.As aforesaid, the Objection herein is premised on two issues, to wit, contravention of the doctrine of sub judice and breach of Order 45 Rule 1 (a) of the Civil Procedure Rules. Sub judice is a legal concept codified under Section 6 of the Civil Procedure Act. It provides thus:“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” 18.It is clear that the concept of sub judice goes to the jurisdiction of a court. As to whether the same can be brought by way of preliminary objection, the court relies on the exposition by the Court of Appeal in John Florence Maritime Services Limited & Conken Cargo Forwarders Limited vs Cabinet Secretary for Transport and Infrastructure, Attorney General, Kenya Maritime Authority & Office De Gestion Du Freit Maritime (OGEFREM) which albeit discussing the related concept of res judicata, noted thus:“There is no legal requirement or factual basis for the submission that the doctrine must only be invoked and or ventilated through a formal application. It can be raised through pleadings as well as by way of preliminary objection.” 19.Indeed, where the proceedings said to be sub judice are already part of the court record and are capable of ascertainment from the face of the pleadings and the judicial record without the need for further evidentiary inquiry, the court is entitled to determine the issue as a pure point of law at a preliminary stage. 20.The next contention regards breach of Order 45 Rule 1(a) of the Civil Procedure Rules which provides as follows:“(1)Any person considering himself aggrieved—(a)by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or(b)by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.(2)A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review.” 21.It is the Petitioners’ contention in this case that the application before the court offends Order 45 Rule 1(a) of the Civil Procedure Rules because the 1st Respondent has already lodged a notice of appeal and thereby elected to pursue the appellate process. The court is satisfied that this contention raises a proper preliminary objection. Whether a party who has preferred an appeal is thereafter entitled to seek review of the same decision is a question of law that turns on the interpretation and application of Order 45 Rule 1(a) of the Civil Procedure Rules. 22.Its determination does not require the ascertainment of contested facts or the exercise of judicial discretion. If upheld, the objection would go to the competence of the review application itself and could dispose of the application in limine. 23.As aforesaid, the objection is premised on the grounds that this suit is res sub judice, and contravenes Order 45 Rule 1(a) of the Civil Procedure Rules. Beginning with the issue of sub judice, this principle as codified in Section 6 of the Civil Procedure Act prevents a court from litigating a matter in which the issue is substantially in issue in another suit, before a competent court and between the same parties and/or their representatives. 24.Speaking to its rationale, the Supreme Court in Kenya National Commission on Human Rights vs Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties [2020] eKLR stated:“The term ‘sub-judice’ is defined in Black’s Law Dictionary 9th Edition as: “Before the Court or Judge for determination.” The purpose of the sub-judice rule is to stop the filing of a multiplicity of suits between the same parties or those claiming under them over the same subject matter so as to avoid abuse of the Court process and diminish the chances of courts, with competent jurisdiction, issuing conflicting decisions over the same subject matter. This means that when two or more cases are filed between the same parties on the same subject matter before courts with jurisdiction, the matter that is filed later ought to be stayed in order to await the determination to be made in the earlier suit. A party that seeks to invoke the doctrine of res sub-judice must therefore establish that; there is more than one suit over the same subject matter; that one suit was instituted before the other; that both suits are pending before courts of competent jurisdiction and lastly; that the suits are between the same parties or their representatives.” 25.The court has considered the record. By way of brief background, the Petitioners instituted this suit seeking inter-alia, injunctive reliefs restraining the Respondents from establishing, operationalizing, or running a school known as Pearls Kids Academy on L.R. No. 1870/X/84 along Sports Road, Westlands. 26.They alleged that the approvals for change of user from residential to school/commercial use and the Environmental Impact Assessment Licence were unlawfully and unconstitutionally issued without public participation, thereby violating various constitutional provisions. 27.Additionally, they asserted that the establishment of the school in a residential zone was unconstitutional and infringed their environmental and property rights, and that the area was not designated for commercial use under the applicable planning framework. They sought declarations in this regard. 28.The Petitioners further sought for orders compelling the removal of advertisements, admissions activities, and alleged illegal extensions and structures associated with the school, as well as prohibitory orders restraining noise and smoke pollution emanating from the premises. 29.In response, the Respondents maintained that the kindergarten operated by the 1st Respondent is lawfully established on the suit property under a valid change of user approval obtained in the year 2015, and that the issuance was supported by appropriate planning permissions and licenses, including an EIA license from NEMA. 30.Vide its judgment entered on 14th day of August, 2025, the court found that the statutory procedures for obtaining the change of user approval and EIA license had not been followed, resulting in a violation of the Petitioners’ right to public participation under Article 10(2) of the Constitution. 31.Consequently, the court declared that the approvals for change of user and the EIA licence had been irregularly and unconstitutionally issued without public notification or participation. The court further ordered the 1st and 2nd Respondents to remove all advertisements and cease admissions to the school within 90 days, and granted them 120 days to regularize the impugned approvals and licenses, failing which they would be required to discontinue operating the school on the suit premises. 32.After the judgment, the 1st Respondent filed a motion dated 21st November, 2025 in which it sought inter-alia, stay of execution of the aforesaid judgment and in the interim arrest of the timelines set out thereunder, review and set aside of the judgment and re-opening of the proceedings. 33.The matter came up before the court on 5th December 2025 for directions on the aforesaid motion whereupon the court noted, inter-alia, that it was not persuaded on the urgency of the application and directed that the same proceed for inter parties hearing on 26th January, 2026. The court has considered the notice of appeal dated 9th December, 2025. It is noted therein that the 1st Respondent/Appellant intends to appeal to the Court of Appeal against the whole of the said Ruling and Orders whereby the Honourable Court:“ 1.Declined to certify the 1st Respondent’s Application dated 21st November 2025 as urgent.Declined to grant a Stay of Execution pending the hearing of the Application.Directed that the Application be heard inter-parties on 26th January 2026, a date subsequent to the execution deadline of 12th December 2025.” 34.It is clear from the foregoing that the proceedings before the Court of Appeal concern the ruling and directions issued by this court on 5th December 2025 rather than the substantive judgment delivered on 14th August 2025. 35.Indeed, pursuant to the notice of appeal dated 9th December 2025, the 1st Respondent filed Civil Application No. E743 of 2025 before the Court of Appeal seeking, inter alia, certification of the application as urgent, preservation of the status quo by staying enforcement of Order (c) of the judgment requiring discontinuance of the school’s operations, and a stay of execution of the judgment and decree pending the intended appeal against the orders made on 5th December 2025. 36.In the supporting affidavit sworn by Ali Yilmaz, the 1st Respondent deponed that the intended appeal arose from this court’s refusal to certify the review application as urgent and its decision to schedule the application for hearing on 26th January 2026 notwithstanding the impending execution deadline. The affidavit further asserted that unless stay orders were granted, the intended appeal would be rendered nugatory by the closure of the school before the review application could be heard and determined. 37.The present proceedings, on the other hand, concern the substantive determination of the review application itself, including whether the judgment delivered on 14th August 2025 should be reviewed on account of the alleged discovery of new and important evidence. The issues for determination before the two courts are therefore distinct. 38.Moving next to the objection founded on Order 45 Rule 1(a) of the Civil Procedure Rules, as aforesaid, the effect of the provision is to preclude a party from simultaneously pursuing both a review and an appeal against the same decree or order. The rule is intended to preserve the distinction between the appellate and review jurisdictions by requiring a litigant to elect one course, thereby avoiding parallel proceedings and the risk of conflicting determinations by different courts in respect of the same decision. 39.As discussed by the Court of Appeal in Multichoice (Kenya) Ltd vs Wananchi Group (Kenya) Limited & 2 Others [2020] eKLR:“It is now an accepted view that both the Civil Procedure Rules and the Court of Appeal Rules did not contemplate the simultaneous proceedings of review and appeal before two different courts at the same time. Where a party has filed an appeal but subsequently wishes to apply to the court from which the appeal came to review the decision impugned, that party must, in the first place withdraw the appeal.” 40.The court has already found that the appellate proceedings concern interlocutory orders arising from the review application and do not constitute an appeal against the substantive judgment sought to be reviewed. The court therefore finds that no appeal has been preferred against the decree or judgment sought to be reviewed and, consequently, the review proceedings do not offend Order 45 Rule 1(a) of the Civil Procedure Rules. 41.In the circumstances, the Preliminary Objection is found to be without merit. The same is dismissed with costs. DATED, SIGNED AND DELIVERED VIRTUALLY IN NAIROBI THIS 5TH DAY OF JUNE, 2026.O. A. ANGOTEJUDGEIn the presence of:Mr. Kyabiko for the PetitionerN/A for the RespondentCourt Assistant: Tracy