https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3634

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA** **ELC PETITION NO. E002 OF 2026** **BERNARD AMUKAKA LUDESHI (Suing** **as Chair of ISULU NATURAL RESOURCE** **DEPOSITS (CBC) on behalf of the** **community members of Isulu and** **Bushiangala regions, Kakamega** **South Sub-county, Kakamega County ….…….…PETITIONERS** **-VERSUS-** **SHANTA GOLD LIMITED & 8 OTHERS…………RESPONDENTS** **RULING** **Introduction** 1. Before court is a Notice of Motion application dated13th April 2026 filed by the 1st and 2nd respondents seeking the following orders: 2. **The Honourable court be pleased to strike out the petition and the petitioners’ notice of motion both dated 27th January 2026 for abuse of the court process.** 3. **The costs of and incidental to this application be provided for; and** 4. **Any such other or further relief as the Honourable court may deem fit to grant.** 5. The application was anchored on the supporting affidavit sworn by KALPESH P. PATEL, the 1st respondent’s director. The applicants’ case is that the filing of this suit violates the principle of *sub- judice* as there is a similar suit being **Milimani ELC Petition No. E047 OF 2025;** **Isulu Natural Resources Community v Shanta Gold Ltd & Others** (hereinafter referred to as the Milimani Petition) pending before a court of concurrent jurisdiction and scheduled for hearing on 21st April 2026. 6. Further that the Milimani Petition raises the same issues as those raised in the instant petition, including assertions that the applicants are conducting open pit mining in Isulu and Bushiangala; that the local community face forceful eviction; that the mining has potential for use of harmful chemicals that is a threat to the community’s right to a clean and healthy environment; that no stakeholder engagement was conducted and that the petition raised concerns around licensing; which are similar issues as those raised in the instant petition. 7. He maintained that on the mention date of 18th March 2026, the petitioner admitted dissatisfaction with the progress of earlier proceedings and had sought to litigate the same dispute in this court with the hope of having a favourable decision. They attached pleadings and orders made in Milimani ELC Petition No. E047 OF 2025; Isulu Natural Resources Community v Shanta Gold Ltd & Others. 8. The application was opposed. The petitioners filed a replying affidavit dated 12th May 2026 sworn by Bernard Amukaka Ludeshi. He deponed that the petitioners acknowledge pendency of another matter at Milimani, having been filed in 2024. That the matter was filed in Milimani despite the subject matter being in Kakamega. That the matter was not initially filed in the ELC and that the error was not done by the petitioners. That the matter was filed in the High court at Milimani and was later transferred to the ELC at Milimani. 9. They maintained that they were informed that the matter had been dismissed prompting them to instruct new counsel to file the present petition. That they subsequently learnt that the matter had been transferred to the ELC Milimani, and informed this court as much. That on 21st April 2026, the Judge in Milimani handling the matter was not sitting, and that the judge on duty could not grant substantive orders resulting in a further mention date slated for 30th June 2026. That the petitioners intend to seek withdrawal of the Milimani petition. That the Milimani petition is defective. That the instant application is a technical maneuver to extinguish the petitioners’ legitimate grievance. 10. The petitioners’ position was that although there is similarity in the two petitions, there is material difference in respect to the same asf parties and reliefs sought are different. That the respondents having responded to the petition and application or conservatory orders herein, have acceded to the court’s jurisdiction. That if the matter is found to be *sub judice* the proper order would be consolidation of the two petitions and not striking out. 11. Parties filed submissions in support of their respective positions, which the court has duly considered. **Analysis and determination** 1. The court has carefully considered the application, response and submissions. The only issue that arise for determination is whether this suit is *sub judice*, in view of the pendency of Milimani ELC Petition No. E047 OF 2025; Isulu Natural Resources Community v Shanta Gold Ltd & Others. 2. Section 6 of the Civil Procedure Act provide for the doctrine of *sub judice* as follows; **“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. Therefore, where there is a pending previously instituted suit in a competent court raising substantially similar issues, the court is barred from proceeding with a subsequent suit by the same parties in respect of similar issues. 2. In the instant matter, the court has considered the parties herein vis a vis those in Milimani ELC PETITION 047 OF 2025. It is clear that the parties in the Milimani petition are the same parties herein, save that in the Milimani petition, the National Land Commission and the Kakamega County Police Commander were not sued, while the Competition Authority was made a party in that petition. Therefore, the addition of parties in the instant petition is immaterial as the main disputants remain the same. 3. I have considered the Milimani petition. The same was filed by Isulu Natural Resources Deposits (CBO) and spearheaded by Benard Amukaka Ludeshi, who are also the petitioners herein. In both the Milimani petition and the instant petition, the subject matter is the open pit mining of gold in Isulu and Bushangala regions of Kakamega county. The issues raised in the Milimani Petition are inter alia; whether there was a community development agreement; whether the mining and exploration activities of the respondents violate the community’s right to a clean and healthy environment; whether there was adequate public participation; whether the mining and exploration have been lawfully licensed; and whether the community faces forceful eviction. 4. On the other hand, the issues raised in the instant petition are inter alia, the legality of exploration and mining activities of the 1st and 2nd respondents; the question of public participation; whether the petitioners’ rights to health, property, livelihoods and clean and healthy environment have been violated; whether the activities of the 1st and 2nd respondents have resulted or will result in environmental damage and whether the petitioners may be forcefully evicted from their properties. 5. In view of the above, it is apparent that while the instant petition has raised additional issues beyond those raised in the Milimani petition, the issues raised herein are directly and substantially in issue in the Milimani petition. The Milimani petition is before the Environment and Land Court, which is competent to hear and determine the matter. 6. The petitioners have indicated that they intend to withdraw the Milimani petition. Intention, however good, until executed cannot carry any import in law. In this case, this suit was filed in January 2026, with the full knowledge that the Milimani petition is still pending. There is no indication as to when the notice of withdrawal of the Milimani petition was filed. But most importantly, the withdrawal of the Milimani Petition has not been done. There is no order granting a request for withdrawal of that petition. Therefore, Milimani ELC PET No. 047 of 2025 is still pending. As long as the Milimani petition remains pending, this court cannot proceed with the instant petition and therefore the only order available herein is an order staying the proceedings in this petition. 7. In view of the reasons above, I find and hold that the instant petition is *sub judice.* This suit is therefore stayed pending the hearing and determination of Milimani ELC PET No. E047 OF 2025. As the petitioners herein are the ones that filed two suits in regard to the same subject matter and cause of action, and in view of the orders issued herein above, all interim orders issued in this petition are hereby vacated by this court *suo moto*. 8. It is so ordered. **DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 4TH DAY OF JUNE, 2026** 1. **NYUKURI** **JUDGE** **In the presence of;** Mr. Ngéno holding brief for Mr. Walumbe for the petitioners Ms Ogonyo for the 1st and 2nd respondents. Court Assistant: Delphine