https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4924

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT CHUKA** **ELC PETITION NO. E004 OF 2025** **KENETH KIRIMI MBAE...........................................PETITIONER** **=VERSUS=** **COUNTY BUILDERS LIMITED.........................1ST RESPONDENT** **THE CHIEF OFFICER, COUNTY** **DEPARTMENT OF ROADS, INFRASTRUCTURE** **AND URBAN DEVELOPMENT,** **THARAKA-NITHI COUNTY.............................2ND RESPONDENT** **NATIONAL ENVIRONMENT MANAGEMENT** **AUTHORITY (NEMA) .....................................3RD RESPONDENT** **THE COUNTY GOVERNMENT OF** **THARAKA-NITHI...........................................4TH RESPONDENT** **RULING** **Background** 1. **Keneth Kirimi Mbae** [*the petitioner*] initiated this petition on 25/9/2025. Through it, he sought, among other reliefs, a declaration that the respondents’ actions of commencing construction of the **Katharaka-Mukui-Mumbuni Road** to bitumen standards without a proper environmental impact assessment licence [EIA Licence] and without public participation were in stark violation of Articles 10, 42, 69, 70 and 174(i) of the Constitution. He also sought an injunction restraining the respondents against undertaking the project without full compliance with constitutional and statutory requirements, including the EIA licence and public participation. 2. Alongside the petition, the petitioner brought a notice of motion dated 22/9/2025 seeking an interlocutory conservatory order restraining the 1st, 2nd and 4th respondents and their agents against continuing with construction of the road. He also sought an interlocutory order compelling the respondents to avail and file in court certified copies of the environmental impact assessment report, the EIA licence and records of public participation undertaken in relation to the project. The said application is one of the two items that fall for determination in this ruling. 3. The second item that falls for determination in the ruling is the 2nd and 4th respondents’ notice of motion dated 27/10/2025 through which the duo invite the court to strike out the petition *in limine*. Because the preliminary objection raises a jurisdictional question, it will take precedence. **Preliminary Objection dated 27/10/2025** 1. The preliminary objection by the 2nd and 4th respondents was premised on the following four verbatim grounds: 2. ***That the suit is premature and brought before this court contrary to the doctrine of exhaustion and constitutional avoidance, as the petitioner has not referred the matter to the Public Procurement Administrative Review Board established under Section 27 of the Public Procurement and Asset Disposal Act, 2015.*** 3. ***That the petitioner lacks locus standi to institute the present suit, having no authority to sue or to swear affidavits on behalf of members of the Mugumango Irrigation Farmers’ Co-operative Society and the Murugi-Mugumango Water Project.*** 4. ***That the prayers sought are not within the jurisdiction of this Honourable Court, the same being constitutional reliefs outside the purview of the Environment and Land Court as established under Article 162(2) (b) of the Constitution and the Environment and Land Court Act, 2011.*** 5. ***That the evidence relied upon by the petitioner is inadmissible, offending the rules of evidence as it is based on hearsay and unsubstantiated allegations.*** 6. The preliminary objection was canvassed through written submissions dated 27/10/2025, filed by the **Tharaka Nithi County Attorney**. On the contention that this petition was brought prematurely before exhaustion of statutory remedies, counsel for the objectors cited Section 27 of the Public Procurement and Asset Disposal Act, 2015 [***the PPADA***] which establishes the Public Procurement Administrative Review Board [***the PPARB***] and contended that the Board was the proper body to adjudicate the dispute in this petition. Counsel cited the decision in ***Aprin Consultants v Parliamentary Service Commission & another (2021) eKLR*** in which the court held that where the gravamen of a complaint concerns the evaluation, award or execution of a public tender, the exclusive forum for redress was the Public Procurement Administrative Review Board [***the PPARB***]. Counsel faulted the petitioner for failing to exhaust the redress mechanisms availed under the PPADA and urged the court to strike out the petition. Counsel further faulted the petitioner for failing to ventilate his grievances through the Tribunal established under the Water Act. Counsel further faulted the petitioner for failing to exhaust the remedies available to him through the National Environment Tribunal. 7. On the contention that the petitioner lacked locus standi to initiate this petition, counsel for the objectors submitted that a person who sues on behalf of a co-operative or a third party must demonstrate authorization in form of a resolution/letter of authority/power of attorney. Counsel faulted the petitioner for failing to exhibit an authorization from the co-operative and from the people on whose behalf he brought the petition. 8. On the contention that the reliefs sought in the petition fell outside the jurisdiction of this court, counsel argued that the jurisdiction of this court was limited by **Article 162(2) (b**) of the **Constitution** and **Section 13** of the **Environment and Land Court Act**. Counsel submitted that prayers (g), (h), and (i) related to matters of procurement and administrative law and were outside the jurisdiction of this court. 9. Counsel added that under **Section 108** of the **Environmental Management and Co-ordination Act** [***the EMCA***] the 3rd respondent [*NEMA*] was mandated to issue an environmental restoration order without reference to this court. Counsel argued that the petitioner had not exhibited evidence to show that he sought records relating to the EIA licensing or that he lodged a complaint with the County Environment Committee or the National Complaints Committee on the alleged breaches. 10. The petitioner contested the preliminary objection through written submissions dated 3/12/2025, filed by ***M/s Sheila Mugo & Co Advocates***. Counsel for the petitioner submitted that the issues raised in the petition related to ongoing environmental derelictions in the petitioner’s neighbourhood, adding that the petition did not challenge the tendering process. Counsel emphasized that the petition sought the enforcement of constitutionally guaranteed right to a clean and healthy environment. 11. Citing **Article 162 (2) (b)** of the **Constitution,** **Section 13** of the **Environment and Land Court Act** and the pronouncement of the ELC in ***Kirimi & another v Kenafric Industries & 4 others (2022) KEELC 2568 (KLR)***, counsel for the petitioner submitted that the Environment and Land Court was properly vested with jurisdiction to deal with constitutional petitions relating to disputes within its mandate as defined under the above frameworks. 12. On the petitioner’s *locus standi*, counsel cited **Article 22** of the Constitution and submitted that the Constitution granted locus standi to everyone to commence proceedings claiming that a right or a fundamental freedom in the Bill of Rights had been violated/breached or was threatened with violation/breach. Counsel further relied **on Articles 22, 42** and **69** of the **Constitution.** ­ 1. On whether this court had powers to grant the reliefs sought in the petition, the petitioner cited **Articles 23** and **70** of the Constitution and **rule 2** of **The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013** and submitted that the court had the jurisdiction to grant the reliefs sought in the petition. Counsel urged the court to reject the preliminary objection. 2. The court has considered the grounds set out in the preliminary objection and the submissions tendered in support and against the preliminary objection. The court will analyse and dispose the four grounds in the order in which they were itemized in the preliminary objection. 3. Was the petition brought prematurely and in contravention of the doctrine of exhaustion of remedies? The objector relies on Sections 27 and 28 of the PPADA which establishes the PPARB and vests in it primary jurisdiction to adjudicate tender disputes. The objectors argues that the petitioner should have sought redress in the PPARB within the framework in the PPADA. The object of the PPADA is spelt out in the preamble to the Act as follows: ***“An Act of Parliament to give effect to Article 227 of the Constitution; to provide procedures for efficient public procurement and for assets disposal by public entities, and for connected purposes.”*** 1. **Article 227 (1)** of the **Constitution** provides broad principles that govern procurement of public goods and services in the following terms:- ***“When a state organ or any other public entity contracts for goods or services, it shall do so in accordance with a system that is fair, equitable, transparent, competitive and cost-effective.”*** 1. **Article 227 (2)** enjoins Parliament to enact a statute prescribing a framework setting out policies relating to procurement of public goods and services and disposal of public assets. 2. Section 27 of the PPADA establishes the PPARB. Section 28 (1) of the Act spells out the functions of the PPARB as follows: 3. ***Reviewing, hearing and determining tendering and asset disposal disputes; and*** 4. ***To perform any other function conferred to the Review Board by this Act, Regulations or any other written law***. 5. It is clear from the above framework that the PPARB is vested with jurisdiction to adjudicate disputes relating to public tendering and disposal of public assets. Is the dominant issue in this petition a dispute relating to public tendering or disposal of pubic asset? From a reading of the petition, the answer to the above question is in the negative. The dominant issue in this petition is whether the respondents have violated or have threated to violate the right to a clean and healthy environment as guaranteed under Article 42 of the Constitution. Consequently, I do not find merit in ground number 1 of the preliminary objection dated 27/10/2025. 6. Is this petition incompetent for want of locus standi on part of the petitioner. The objectors contend so. From a cursory reading of the petition, it is clear that the petition is principally anchored on Article 42 , 69 and 70 of the Constitution. Article 42 secures the right to a clean and healthy environment. The framers of the Constitution were cognisant of the fact that environmental harm is a public harm. It is for this reason that Article 70 was enacted to provide the following frameworks:- ***“70.*** ***(1) If a person alleges that a right to a clean and healthy environment recognised and protected under Article 42 has been, is being or is likely to be, denied, violated, infringed or threatened, the person may apply to a court for redress in addition to any other legal remedies that are available in respect to the same matter.*** ***(2) On application under clause (1), the court may make any order, or give any directions, it considers appropriate—*** ***(a) to prevent, stop or discontinue any act or omission that is harmful to the environment;*** ***(b) to compel any public officer to take measures to prevent or discontinue any act or omission that is harmful to the environment; or*** ***(c) to provide compensation for any victim of a violation of the right to a clean and healthy environment.*** ***(3) For the purposes of this Article, an applicant does not have to demonstrate that any person has incurred loss or suffered injury.”*** 1. It does emerge from Article 70(3) of the Constitution that a litigant bringing a petition to enforce Article 42 of the Constitution does not require to demonstrate that he has incurred loss or suffered injury. In ***Export Processing Zone Authority & 10 others (Suing on their own behalf and on behalf of all residents of Owino – Uhuru Village in Mikindani, Changamwe Area Mombasa) v National Enviroment Management Authority & 3 others (Petition E021 of 2023) [2024] KESC 75 (KLR) (6 Dec 2024) (Judgment),*** the Supreme Court of Kenya emphasized this legal position in the following terms: ***“We have already outlined above that under the provisions of Article 70(3) of the Constitution, an applicant does not have to demonstrate that he/she has incurred loss or suffered injury.”*** 1. It is clear from Article 70(3) of the Constitution and from the above prevailing jurisprudence that the petitioner did not require to demonstrate personal loss or personal injury for him to have *locus standi*. He did not require authorization from third parties for him to bring the petition. For the above reasons, ground number 2 of the preliminary objection dated 27/10/2025 is rejected. 2. Do the prayers sought in the petition fall outside the jurisdiction of this court? The reliefs sought in this petition are as follows:- 3. ***A declaration that the respondents’ actions in commencing the road project without a proper Environment Impact Assessment (EIA) and public participation are in stark violation of Articles 10, 42, 69, 70 and 174 (c) of the Constitution of Kenya 2010.*** 4. ***A conservatory order restraining the respondents, their agents and contractors from continuing with construction of the Katharaka-Mukui-Mumbuni Road pending hearing and determination of this petition.*** 5. ***An injunction restraining the respondents from undertaking the project without full compliance with constitutional and statutory requirements, including but not limited to EIA and public participation.*** 6. ***An order compelling the respondents to conduct and publish a proper EIA Report in accordance with the Environmental Management and Coordination Act (EMCA) as well as conduct and publish a proper Public Participation Report and make them accessible to the public.*** 7. ***An order of compensation to the petitioner, the affected residents, and members of the Mugumango Irrigation Farmers’ Co-operative Society Limited for the loss suffered as a result the haphazard relocation of irrigation water pipes.*** 8. ***An order compelling the 4th respondent to bear the costs of relocating the irrigation water pipers of the Mugumango Irrigation Project.*** 9. ***An order directing the 1st respondent, in the event of recommencement of the project, to ensure that the road is constructed in accordance with the standards under Tender No TNCG/03/2024-2025 and that the road has all the necessary safeguards to ensure the safety of the local residents and especially that of school-going children.*** 10. ***An order for restoration against the respondents to, as far as possible, restore any undeveloped sites and excavations to their original state.*** 11. ***This court be pleased to award the petitioner and the affected public punitive and exemplary damages against the respondents jointly and severally for unlawfully and recklessly commencing and continuing with the Katharaka-Mukui-Mumbuni Road project in total and blatant disregard of the Constitution and relevant statutes.*** 12. ***Costs of this petition.*** 13. ***Any other relief that this Honourable Court deems fit and just to grant.*** 14. The above reliefs fall within the broad jurisdiction of this court as defined under Article 162 (2) (b) of the Constitution. They also fall within the ambit of Section 13 of the Environment and Land Court Act. I do not therefore see any merit in ground number 3 of the preliminary objection. 15. Ground number 4 raised the issue of admissibility of some unspecified evidence. The issue was not canvassed in the objectors’ submissions dated 27/10/2025. Even if the issue had been canvassed, inadmissibility of evidence is an issue to be raised during trial or hearing of the petition or hearing of an application. It is not a basis for automatic striking out of a petition in limine. For the above reasons, ground number 4 is rejected. 16. Lastly, the court notes that through their submissions dated 27/10/2025, the objectors introduced and purported to canvass new grounds that were not in the preliminary objection. That was wrong. Whatever they canvassed outside the four (4) grounds that had been set out in the preliminary objection are not issues that fall for consideration in the preliminary objection. 17. Having considered the grounds set out in the preliminary objection dated 27/10/2025 and the relevant submissions on those grounds, the court finds that the preliminary objection lacks merit. The preliminary objection is rejected for lack of merit. In tandem with the general principle on costs – that costs follow the event, the 2nd and 4th respondents in this petition (the two objectors) shall bear costs of the preliminary objection. **Application Dated 22/9/2025** 1. Through the application dated 22/9/2025, the petitioner seeks the following order:- ***(a) (Spent)*** ***(b) (Spent)*** ***(c) (Spent)*** ***(d) A conservatory order does issue restraining the 1st, 2nd and 4th respondents, their employees, agents and contractors from continuing with construction of the Katharaka-Mukui-Mumbuni Road pending hearing and determination of the main petition.*** ***(e) That pending the hearing and determination of this petition, this Honourable Court do order the respondents to avail and file before this court certified copies of the Environmental Impact Assessment (EIA) Report, licence, and the records of reports of public participation undertaken in respect of the Kathara-Mukui-Mumbuni Road Project under Tender TNCG/03/2024-2025.*** 1. The application was premised on the grounds outlined in the motion and in the two affidavits of the petitioner dated 22/9/2025 and 3/12/2025. It was canvased through written submissions dated 26/1/2026, filed by ***M/s Sheila Mugo & Co Advocates***. The case of the applicant/petitioner is that the 2nd and 4th respondents undertook tendering process and subsequently commenced construction works on the project without the requisite ESIA Study, ESIA Report and EIA Licence. He further contends that there has never been any public participation in the implementation of the project. It is the case of the applicant that the EIA Licence dated 17/12/2025 which the respondents procured six months after commencement of construction works and three months after the filing of the present petition and application does not validate the illegality of the project. 2. The applicant adds that the respondents have never carried out public participation as required under the Constitution and the EMCA. They contend that the 1st respondent has failed to put in place mitigation measures to control dust and to secure the safety of the public, including school children who use the road, adding that the 1st respondent has interfered with water pipes serving the area residents and institutions. 3. The applicant further contends that despite a request to the 1st and 3rd respondents to avail the EIA study report vide a letter dated 25/8/2025 and a reminder dated 3/9/2025, the report was not availed. Making reference to the EIA Licence dated 26/11/2025, the applicant argues that the said licence was issued six months after commencement of the project. 4. The 1st respondent opposed the application through a replying affidavit dated 5/12/2025, a supplementary affidavit dated 7/1/2026 and written submissions dated 23/3/2026, filed by ***M/s A A Khalif Advocates LLP***. The case of the 1st respondent is that the project was commenced in strict adherence to the provisions of Section 58 of the EMCA after a comprehensive and inclusive public participation exercise that was conducted in November 2024. The 1st respondent adds that a comprehensive environmental and social impact assessment study was conducted by a team under the County Government, leading to the computation of an ESIA Study Report which was subsequently submitted to the 3rd respondent in January 2025. The 1st respondent adds that upon expiry of the 90 day statutory review period, works on the project commenced within the framework of Section 58 (9) of the EMCA. 5. The 1st respondent states that the road project is a vital public infrastructure by the County Government and urge the court not to issue the interlocutory orders. 6. The 2nd and 4th respondents opposed the application through a replying affidavit sworn on 27/10/2025 by ***Franklin Mwendani*** and written submissions dated 12/1/2025. They contend that this petition was brought prematurely. They add that there was proper public participation. They fault the petitioner for failing to utilize the dispute resolution mechanisms provided under the EMCA. It is their case that the application does not meet the criteria for granting an interlocutory injunction. They urge the court to reject the application. The 3rd respondent did not respond to the application. 7. The court has considered the application, the responses and the submissions tendered on the application. At this point, prayers *(a)*, *(b)* and *(c)* are spent. The two interlocutory reliefs which are outstanding are: (i) prayer *(d)* which is a plea for a an interlocutory conservatory order; and (ii) prayer *(e)* which is a plea for an order compelling the respondents to avail and file in court certified copies of the EIA Report, the EIA Licence and the records relating to public participation relating to the project. Consequently, the two key issues to be determined in this ruling are: (ii) Whether the application dated 22/9/2025 meets the criteria for granting a conservatory order in a petition; and (ii) Whether a case has been made to warrant issuance of an order compelling the respondents to avail records relating to the EIA licensing of the material project. I will be brief in my analysis and disposal of the issues. 8. Does the application meet the criteria for granting an interlocutory conservatory order? The criteria upon which our courts exercise jurisdiction to grant conservatory orders was outlined by the Supreme Court of Kenya in ***Gatirau Peter Munya*** ***v Dickson Mwenda Kithinji & 2 others [2014] eKLR KESC 30 (KLR)*** as follows:- ***“Conservatory orders” bear a more decided public-law connotation: for these are orders to facilitate ordered functioning within public agencies, as well as to uphold the adjudicatory authority of the Court, in the public interest. Conservatory orders, therefore, are not, unlike interlocutory injunctions, linked to such private-party issues as “the prospects of irreparable harm” occurring during the pendency of a case; or “high probability of success” in the supplicant’s case for orders of stay. Conservatory orders, consequently, should be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes, and priority levels attributable to the relevant causes.*** 1. The project which is the subject matter of this petition is a public road that is being upgraded to bitumen standards. It serves the general public. The applicant has come to court as a lone petitioner and wants the construction works halted. Secondly, at this point, the 1st, 2nd and 4th respondents have presented an EIA Licence dated 17/12/2025, implying that the current constructions works may, prima facie, be lawful. What may not be lawful are works that may have been undertaken prior to 17/12/2025. Given the above circumstances, the court takes the view that, it would not be in the public interest to stop the road project at this point. Put differently, given the above circumstances, I do not think the application meets the criterial for granting a conservatory order. The view the court takes is that if it is ultimately established that illegal project implementation works were undertaken prior to the EIA licensing, damages would be an appropriate remedy. 2. Has a case been made to warrant issuance of an order compelling the respondents to avail EIA Licensing records? From the interlocutory evidence presented at this stage, the County Government of Tharaka Nithi is the project proponent/implementer. They filed a replying affidavit dated 27/10/2025. They did not bother to exhibit copies of the ESIA study report that culminated in the EIA Licence. They did not tender evidence relating to public participation notices and engagements. The 3rd respondent elected to ignore the application altogether. It is only the 1st respondent [a contractor] who exhibited a report by **Ronald Kimtai**, dated 13/1/2025. No evidence of published notices was exhibited. In the circumstances, the court takes the view that there is a proper case warranting issuance of an interlocutory order compelling the 2nd, 3rd and 4th respondents to avail public records in terms of prayer (e) of the notice of motion dated 22/9/2025. 3. Lastly, the 2nd and 4th respondents raised the issue of jurisdiction and contended that this petition was brought prematurely. From the replying affidavit of the 1st respondent, it does emerge that works on the project commenced without an EIA Licence. In the absence of an EIA Licence, the only redress mechanism available to the applicant was a suit in a court of law. The applicant properly instituted the petition. **Disposal Orders** 1. In the end, the preliminary objection dated 27/10/2025 and the application dated 22/9/2025 are disposed as follows:- 2. ***The preliminary objection dated 27/10/2025 is rejected and dismissed with costs for lack of merit.*** 3. ***The application dated 22/9/2025 partially succeeds against the 2nd, 3rd and 4th respondents in terms of prayer (e) of the application. The three respondents shall comply with the said order within 30 days.*** 4. ***Costs of the application shall be in petition***. **DATED, SIGNED AND DELIVERED VIRTUALLY THIS 20TH DAY OF JULY, 2026.** **B M EBOSO [MR]** **ELC JUDGE**