https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3160

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS** **ELC ENVIRONMENT & PLANNING PET NO. E004 0F 2025** **MAANZONI OWNERS ASSOCIATION…………………………...PETITIONER** **VERSUS** **BRAMVIEW ENTERPRISES LIMITED………………………..1ST RESPONDENT** **NATIONAL ENVIRONMENT** **MANAGEMENT AUTHORITY (NEMA)..........................2ND RESPONDENT** **NATIONAL ENVIRONMENT** **COMPLAINTS COMMITTEE...........................................3RD RESPONDENT** **COUNTY GOVERNMENT OF MАСНАКOS………………4TH RESPONDENT** **COUNTY EXECUTIVE MEMBER,** **LAND, URBAN DEVELOPMENT, HOUSING, AND** **ENERGY GOVERNMENT. MACHAKOS COUNTY………5TH RESPONDENT** **AND** **KENYA WILDLIFE SERVICES………………………………INTERESTED PARTY** **RULING** 1. This is a ruling concerning the notice of motion dated 12 June 2025, filed by the petitioner, and on the 1st respondent’s notice of preliminary objection (PO) dated 16 September 2025. 2. The motion is brought under **Articles 22, 23, 42, 69,** and **70** of the **Constitution; Sections 3** and **13** of the **Environment and Land Court Act;** and **Rule 23** of the **Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013.** It seeks the following orders: 3. ***Spent.*** 4. ***Spent.*** 5. ***Pending the hearing and determination of the petition herein, a conservatory order be issued restraining the 1st respondent, its agents, employees, servants from continuing with any further construction, development, operations of an amusement park and/or recreational park/center on LR No. 19791.*** 6. ***Pending the hearing and determination of the petition herein, an order be and is hereby issued compelling the 3rd respondent to commence forthwith and conduct investigations into the legality, environmental compliance, and statutory approvals (if any) for the development of the amusement park/recreation park referred to above and file a report on its findings in this court within timelines stipulated by the court.*** 7. ***Pending the hearing and determination of the petition herein, an order be and is hereby issued directing the 2nd, 4th and 5th respondents to produce all relevant records, licenses, permits, approvals, and environmental impact assessments relating to the amusement park/recreation park being constructed on LR No. 19791 and file the same in court within 14 days.*** 8. ***THAT the costs of the suit be provided for.*** 9. The motion is supported by the grounds set out in the body thereof and the supporting affidavit of June Obonyo, sworn on the instant date. In a nutshell, the petitioner, representing residents of Maanzoni Estate, a low-density residential and conservation area in the Athi-Kapiti Wildlife Corridor, challenges the development of an amusement park within the estate. 10. It is stated that the residents purchased their properties under zoning laws designating the area for residential and wildlife conservation use, as reinforced by the Mavoko Development Plan (2020-2030) and a 2023 Presidential Directive, which barred subdivision and prohibited changes in land use for conservation areas. 11. Despite clear regulations and widespread objections from residents and various associations, the 1st respondent began constructing the amusement park without complying with zoning rules, public participation requirements, or environmental safeguards. Public protests and formal complaints were ignored by the respondents, who also failed to provide documentation or evidence of the project’s proper approvals. The petitioner states that there was disregard for legal and public concerns and a lack of transparency in the development approval process. Significantly, despite referencing several annexures in the supporting affidavit, none were attached to substantiate the assertions. 12. Upon service, the 1st and 2nd respondents and the interested party filed notices of appointment of advocates. Nonetheless, only the 1st respondent opposed the motion. This was done through the PO, which challenged the motion and petition, and by Benson Kinyanjui's replying affidavit, deposed on 30 September 2025. The 1st respondent’s PO raised the following grounds: - 13. ***This honourable court has no jurisdiction to hear and determine the petition dated 12th June,2025, as instituted.*** 14. ***The reliefs sought in the petition dated 12th June, 2025, fall within the purview of the National Environment Authority pursuant to Section 129 of the Environment, Management and Coordination Act (EMCA) and the County Physical and Land Use Planning Liaison Committee pursuant to Section 80 of the Physical and Land Use Planning Act (PLUPA)*** 15. ***The petitioner has circumvented the clearly laid down procedure for redress of the grievances raised in its petition dated 12 June, 2025 in contravention of the doctrine of exhaustion.*** 16. ***The continued pendency of the petition and the application dated 12th June, 2025, is an abuse of the law and the court process.*** 17. ***The petition and the application, both dated 12 June 2025, are hopelessly incompetent, fatally defective, and the same ought to be dismissed forthwith.*** 18. Respecting the replying affidavit, the 1st respondent asserts that the entire proceedings are *sub judice* in light of **NET appeal no. E023 of 2025,** filed by the petitioner, in which the petitioner filed a notice of motion seeking identical reliefs to the motion herein. To that end, it argues that the petitioner is forum shopping and is likely to cause conflicting decisions by the adjudicative bodies. 19. Further, that it is the registered owner of **L.R. No. 19791 (suit property)** and, with an interest in constructing an amusement park, it conducted a change of user with the 4th respondent, followed legal processes leading to the issuance of an environmental impact assessment (EIA) licence from the 2nd respondent, and that the suit property does not fall within a wildlife corridor. Additionally, the petition does not present a *prima facie* case. He tendered several documents that allegedly substantiated the averments. 20. Accordingly, in accordance with the court’s directions, only the law firm of **Ms. Nyaanga & Mugisha Advocates** for the 1st respondent filed written submissions dated 6 February 2026. Hence, having carefully considered the motion, its grounds, the affidavits, the PO, the 1st respondent’s submissions, the legal framework, and prevailing jurisprudence, including that relied upon by its counsel, the key issues for determination are: - 21. ***Whether the PO has met the legal threshold and, if so, whether the grounds are merited.*** 22. ***Whether the entire proceedings are an abuse of the court process.*** 23. ***Whether the petitioner has met the legal requirements to justify the grant of conservatory orders.*** 24. We will now proceed to analyse and determine these issues in chronological order. However, preliminarily, it is necessary to mention that prayers 4 and 5 are not available to the petitioners at the interlocutory stage, as they are final in nature. Except where there are special circumstances, it is not tenable for a court at the interlocutory stage of proceedings to grant final orders, thereby disposing of the petition before the parties are heard. In the instant case, these reliefs have not met the legal threshold to qualify as an exception. ***See Vivo Energy Kenya Ltd v. Maloba Petrol Station & 3 Others [2015] eKLR and Kenya Deposit Insurance Corporation v Richardson & David Limited & another [2015] KECA 4 (KLR).*** 25. ***Whether the PO has met the legal threshold and, if so, whether the grounds are merited.*** 26. In regards to the first limb, the well-cited decision of **Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd. (1969) EA 696** has long established the tests that a PO must satisfy, and it is vital to reaffirm the relevant principles derived from the landmark case, which articulated that: ***“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.”*** 1. In affirming **Mukisa Biscuit *(Supra),*** the Supreme Court of Kenya in **Aviation & Allied Workers Union Kenya v Kenya Airways Limited & 3 others [2015] KESC 23 (KLR)** emphasised the following on the threshold of a PO: - ***“Thus a preliminary objection may only be raised on a “pure question of law”. To discern such a point of law, the Court has to be satisfied that there is no proper contest as to the facts. The facts are deemed agreed, as they are prima facie presented in the pleadings on record.”*** 1. Thus, based on these principles, when addressing this issue, the court will inquire whether the points of law are clear; whether the facts are settled and correct; do not necessitate further ascertainment; and whether the court is not being asked to exercise its prudent discretion. Accordingly, having considered the grounds of the PO that question this court's jurisdiction, this court determines that the legal issues concerning its jurisdiction are purely legal matters that may resolve the entire petition. Furthermore, it is now settled that jurisdiction is everything, and without it, the court must put down its tools. Having established that the PO has met the threshold, we will now delve into the second limb and establish if it is merited. 2. In its submissions, the 1st respondent argues that, under **Section 129** of the **Environment, Management and Coordination Act (EMCA),** the National Environment Tribunal (NET) has jurisdiction; under Sections 32 and **33** of **EMCA,** the National Environment Complaints Committee (NECC) has jurisdiction; and under Section 80 of the **Physical and Land Use Planning Act (PLUPA),** the County Physical and Land Use Planning Liaison Committee has jurisdiction to hear this matter. 3. Regarding planning and land use, and in agreement with the 1st respondent, the Machakos County Physical and Land Use Planning Liaison Committee (“Committee”) also has jurisdiction to hear a part of this matter, as provided under **Sections 61(3)** and **(4)** and **78** of the **PLUPA.** The establishment of this Committee endorses the objectives set out in **Section 3(e)** of the **PLUPA**, which aim to create mechanisms for resolving disputes related to physical and land-use planning. It is necessary to highlight **Sections 61(3)** and **(4)** and **78** of the **PLUPA.** **Section 61(3) and (4):-** ***“(3)An applicant or an interested party that is aggrieved by the decision of a county executive committee member regarding an application for development permission may appeal against that decision to the*** ***County Physical and Land Use Planning Liaison Committee within fourteen days of the decision by the county executive committee member and that committee shall hear and determine the appeal within fourteen days of the appeal being filed.*** ***(4)An applicant or an interested party who files an appeal under sub-section (3) and who is aggrieved by the decision of the committee may appeal against that decision to the Environment and Land Court.”*** **Section** **78:-** ***“The functions of the County Physical and Land Use Planning Liaison Committee shall be to—*** ***(a)hear and determine complaints and claims made in respect to applications submitted to the planning authority in the county;*** ***(b)hear appeals against decisions made by the planning authority with respect to physical and land use development plans in the county;*** ***(c)advise the County Executive Committee Member on broad physical and land use planning policies, strategies and standards; and(d)hear appeals with respect to enforcement notices.”*** 1. Respecting the other bodies that deal with the environment, **Section 32** of **EMCA** states that the role of NECC is, amongst other things, to investigate any allegations or complaints against any person or against the authority in relation to the condition of the environment. Of particular interest are **Sections 129(1)** and **(2)** of **EMCA,** which establish NET, and they provide as follows: ***“(1)Any person who is aggrieved by-*** ***(a)the grant of a license or permit or a refusal to grant a licence or permit, or the transfer of a licence or permit, under this Act or its regulations;*** ***(b)the imposition of any condition, limitation or restriction on the persons licence under this Act or its regulations;*** ***(c)the revocation, suspension or variation of the person's licence under this Act or its regulations;*** ***(d)the amount of money required to paid as a fee under this Act or its regulations;*** ***(e)the imposition against the person of an environmental restoration order or environmental improvement order by the Authority under this Act or its Regulations, may within sixty days after the occurrence of the event against which the person is dissatisfied, appeal to the Tribunal in such manner as may be prescribed by the Tribunal.*** ***(2)Unless otherwise expressly provided in this Act, where this Act empowers the Director-General, the Authority or Committees of the Authority or its agents to make decisions, such decisions may be subject to an appeal to the Tribunal in accordance with such procedures as may be established by the Tribunal for that purpose.”*** 1. Additionally, **Section 130(1)** of the **EMCA** specifies that any individual affected by NET’s decision or order has the right to appeal to this court within thirty days. 2. In accordance with the provisions of **Article 162(2)** of the **Constitution** and **Section 13** of the **Environment and Land Court (ELC) Act,** this court has jurisdiction over matters relating to the environment and the use and occupation, and title to land and thus, it would ordinarily have jurisdiction to hear and determine this case, specifically those concerning violations of land-use planning zones and breaches of statutory environmental safeguards. However, other statutory adjudicative bodies also have jurisdiction to hear these particular segments of the petition as submitted by the 1st respondent. 3. Nevertheless, certain portions of the petition clearly fall within this court's jurisdiction, not that of the other adjudicative bodies, including the alleged violation of the right to access information by the government under **Article 35** of the **Constitution** and matters concerning property rights under **Article 40(2)(b).** Furthermore, the prayers for mandamus and prohibition, as articulated in the petition, are solely within this court’s jurisdiction, not that of the other adjudicative bodies. Furthermore, it is evident that in making its arguments, the 1st respondent overlooked certain parts of the petition. In other words, the petition is multifaceted. 4. The presence of an alternative dispute resolution mechanism under law only delays the need to invoke the court's jurisdiction but does not eliminate the court's authority. In fact, having such mechanisms often makes the court the last resort rather than the first point of contact. Pointedly, there are exceptions to the doctrine of exhaustion. 5. In **Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] KEHC 10266 (KLR),** the persuasive decision in highlighting exceptions, stated as follows: - ***“60.As observed above, the first principle is that the High Court may, in exceptional circumstances consider, and determine that the exhaustion requirement would not serve the values enshrined in***[**theConstitution**](https://new.kenyalaw.org/akn/ke/act/2010/constitution)***or law and allow the suit to proceed before it. It is also essential for the Court to consider the suitability of the appeal mechanism available in the context of the particular case and determine whether it is suitable to determine the issues raised.*** ***61.The second principle is that the jurisdiction of the Courts to consider valid grievances from parties who lack adequate audience before a forum created by a statute, or who may not have the quality of audience before the forum which is proportionate to the interests the party wishes to advance in a suit must not be ousted. The rationale behind this precept is that statutory provisions ousting Court’s jurisdiction must be construed restrictively. This was extensively elaborated by Mativo J in Night Rose Cosmetics (1972) Ltd v Nairobi County Government & 2 others [2018] eKLR.”*** 1. In a more recent Court of Appeal decision of **Civil Appeal No. E160 of 2025 Claire Kubochi Anami & Others Vs County Executive Committee Member (CECM) Built Environment And Urban Planning, Nairobi City County & 20 Others**, the court buttressed the doctrine of exhaustion and its exceptions thus: - ***“In our view, the doctrine of exhaustion serves an important constitutional function. It promotes institutional comity by recognizing the legislature’s intent that certain technical disputes be resolved in specialized fora. It enhances efficiency by allocating cases to bodies with subject-matter expertise. This Court has consistently reaffirmed that principle, most famously in Speaker v Karume (supra), Geoffrey Muthinja (supra) and Kibos Distillers Limited & 4 Others v Benson Ambuti Adega & 3 Others [2020] eKLR. We reaffirm the general principle: where Parliament has prescribed specialized fora and a clear path of review, parties must ordinarily exhaust those remedies. That discipline respects legislative design, leverages technical expertise, and refines records for judicial review.However, our jurisprudence has equally recognised that exhaustion is not an inflexible rule. As the High Court observed in William Ramogi (supra), courts may intervene where statutory mechanisms are plainly inadequate to deal with constitutional claims, or where insistence on exhaustion would result in a denial of justice. Differently put, the exhaustion doctrine is not an iron cage. Courts retain a narrow gate for exceptions — where a dispute transcends routine merits review (for example, where it raises systemic constitutional issues); where the statutory path is ineffective; or where urgent structural relief is necessary and no practical alternative exists.”*** 1. Lastly, in a more recent Supreme Court of Kenya decision of **Nicholus v Attorney General & 7 others; National Environmental Complaints Committee & 5 others (Interested Parties) [2023] KESC 113 (KLR),** the court held as follows at **paragraph 105: -** ***“We agree with the above reasoning and find that the availability of an alternative remedy does not necessarily bar an individual from seeking constitutional relief. This is because the act of seeking constitutional relief is contingent upon the adequacy of an existing alternative means of redress. If the alternative remedy is deemed inadequate in addressing the issue at hand, then the court is not restrained from providing constitutional relief. But there is also a need to emphasize the need for the court to scrutinize the purpose for which a party is seeking relief, in determining whether the granting of such constitutional reliefs is appropriate in the given circumstances. This means that a nuanced approach to the relationship between constitutional reliefs for violation of rights and alternative means of redress, while also considering the specific circumstances of each case to determine the appropriateness of seeking such constitutional reliefs, is a necessary prerequisite on the part of any superior court.”*** 1. As earlier stated, the petition is multifaceted and has several dispute resolution fora available to it, including this court, which has exclusive jurisdiction to determine the claims. In the circumstances, it would be impractical and a waste of time for the petitioner to split its claim and lodge it with different adjudicative bodies. Therefore, the PO is not merited. However, it is noted that during the pendency of these proceedings, the petitioner did exactly that and filed an appeal before the NET. Had it not abused the court process, as shall be demonstrated shortly, this court would have found that the most appropriate forum for the determination of this petition is this court and would have found it has jurisdiction to entertain it. 2. ***Whether the entire proceedings are an abuse of the court process.*** 3. Concerning this matter, it is a well-established legal principle that the court possesses inherent jurisdiction to protect itself against abuse or to prevent its processes from being misused. An abuse of court process is any departure from established good order that significantly deviates from the reasonable use of court process; such abuse occurs when an individual makes excessive, improper, or contradictory use of court procedures, thereby contravening the natural legal principles. The persuasive decision in **Satya Bhama Gandhi v. Director of Public Prosecutions & 3 others [2018] KEHC 6100 (KLR)** outlined several examples of such instances of abuse of court process, thus: - ***“(a) Instituting a multiplicity of actions on the same subject matter, against the same opponent, on the same issues or multiplicity of actions on the same matter between the same parties even where there exists a right to begin the action.*** ***(b) Instituting different actions between the same parties simultaneously in different court even though on different grounds.*** ***(c) Where two similar processes are used in respect of the exercise of the same right for example a cross appeal and respondent notice.*** ***(d) Where an application for adjournment is sought by a party to an action to bring another application to court for leave to raise issue of fact already decided by court below.*** ***(e) Where there no iota of law supporting a court process or where it is premised on recklessness. The abuse in this instance lies in the inconvenience and inequalities involved in the aims and purposes of the action.*** ***(f) Where a party has adopted the system of forum-shopping in the enforcement of a conceived right.*** ***(g) Where an appellant files an application at the trial court in respect of a matter which is already subject of an earlier application by the respondent at the Court of Appeal.*** ***(h) Where two actions are commenced, the second asking for a relief which may have been obtained in the first. An abuse may also involve some bias, malice or desire to misuse or pervert the course of justice or judicial process to the irritation or annoyance of an opponent.”*** 1. As to the definition of the term “abuse of the court process,” reference is made to the decision in the Court of Appeal case of **Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 others [2009] KECA 453 (KLR),** which reaffirmed the definition as set forth in two foreign court decisions in the following manner: - ***“In BEINOSI v WIYLEY 1973 SA 721 [SCA] at page 734F-G a South African case heard by the Appeal Court of South Africa, Mohomad CJ, set out the applicable legal principle as follows: -*** ***“What does constitute an abuse of process of the court is a matter which needs to be determined by the circumstances of each case. There can be no all-encompassing definition of the concept of “abuse of process.” It can be said in general terms, however, that an abuse of process takes place where the proceedings permitted by the rules of court to facilitate the pursuit of the truth are used for purposes extraneous, to that objective.”*** ***Again the Court of Appeal in Abuja, Nigeria in the case of ATTAHIRO v BAGUDO 1998 3 NWLL pt 545 page 656, stated that the term abuse of court process has the same meaning as abuse of judicial process. The employment of judicial process is regarded as an abuse when a party uses the judicial process to the irritation and annoyance of his opponent and the efficient and effective administration of justice. It is a term generally applied to a proceeding which is wanting in bona fides and is frivolous, vexatious or oppressive. The term abuse of process has an element of malice in it.*** ***In the Nigerian Case of KARIBU-WHYTIE J Sc in SARAK v KOTOYE (1992) 9 NWLR 9pt 264) 156 at 188-189 (e) the concept of abuse of judicial process was defined:-*** ***“The concept of abuse of judicial process is imprecise, it implies circumstances and situations of infinite variety and conditions. Its one feature is the improper use of the judicial powers by a party in litigation to interfere with the administration of justice …”*** 1. After a thorough examination of the record in the present matter, and in accordance with the replying affidavit filed by the 1st respondent and its submission, this court finds that the petition and motion constitute an abuse of court process, as the petitioner is obviously forum shopping, having lodged proceedings on the same subject matter not only before this court but also before NET. 2. According to the record, the petition and the motion herein were filed on 18 July 2025. Nonetheless, perhaps believing the NET would sufficiently address its grievances, the petitioner lodged an appeal with the NET on 31 October 2025. Simultaneously therein, the petitioner filed a notice of motion dated 30 October 2025, seeking restraining orders against the 1st respondent in respect of the construction or development of the suit orders. These sought orders are eerily similar to those in the current motion at issue in this ruling. In other words, the petitioner’s conduct amounts to *sub judice.* 3. In **Republic v Kariuki & 3 others; Law Society of Kenya (Ex parte Applicant) [2020] KEHC 10142 (KLR),** the doctrine of *sub judice* was explained thus: - ***“The sub judice rule like other maxims of law has a salutary purpose. The basic purpose and the underlying object of sub judice is to prevent the courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations in respect of same cause of action, same subject matter and the same relief. This is to pin down the parties to one litigation so as to avoid the possibility of contradictory verdicts by two courts in respect of the same relief and is aimed to prevent multiplicity of proceedings.”*** 1. This decision went further to state as follows: - ***39. Abuse of court process creates a factual scenario where a party is pursuing the same matter by two-court process. In other words, a party by the two court process is involved in some gamble; a game of chance to get the best in the judicial process.A litigant has no right to purse paripasua two processes, which will have the same effect in two courts at the same time with a view of obtaining victory in one of the process or in both. In several decisions of this court, I have stated that litigation is not a game of chess where players outsmart themselves by dexterity of purpose and traps. On the contrary, litigation is a contest by judicial process where the parties place on the table of justice their different position clearly, plainly and without tricks. Pursuing two processes at the same time constitutes and amounts to abuse of court/legal process. It matters not that the earlier suit was filed by the Branch of the LSK while the instant suit is filed by the main body.*** ***40.Thus, the multiplicity of actions on the same matter between the same parties even where there exists a right to bring the action is regarded as an abuse.The abuse lies in the multiplicity and manner of the exercise of the right rather than exercise of right per se. The abuse consists in the intention, purpose and aim of person exercising the right, to harass, irritate, and annoy the adversary and interface with the administration of justice.*** 1. This court concurs with this decision. Suffice it to say, the petitioner has presented issues that are almost similar to those being litigated by NET. The petition highlights a troubling situation of parallel cases involving the same parties and almost identical issues. As the 1st respondent argues, this also increases the risk of different courts issuing conflicting orders, especially since this court serves as an appellate body for NET's decisions. Furthermore, the court is being asked to decide on issues nearly identical to those currently before NET, which is unacceptable. Most importantly, the petitioner failed to reveal the existence of these parallel proceedings. Having found these proceedings an abuse of court process, this court deems it unnecessary to determine the last issue. 1. In the end, and for the foregoing reasons and findings, the notice of motion dated 12 June 2025 and the entire petition are hereby struck out with costs to the 1st and 2nd respondents and the interested party, to be borne by the petitioner. The notice of preliminary objection dated 16 September 2025 is hereby dismissed with no orders as to costs. As the other parties did not participate in these proceedings, costs are not awarded to them. This file is hereby effectively marked as closed. It is so ordered. **Delivered and Dated at Machakos this 19th day of May, 2026.** **HON. A. Y. KOROSS** **JUDGE** **19.05.2026** **Ruling delivered virtually through Microsoft Teams Video Conferencing Platform** In the presence of; Ms. Kanja Court Assistant. Mr. Njuguna for petitioner. Mr. Gachuiri for Mr. Muchiri for 1st respondent. No appearance for other parties.