https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4660

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MURANG’A** **ELCLC PET E002 OF 2025 IN THE MATTER OF ARTICLES 2, 3, 10, 21, 22, 23, 27(1), 35, 42, 47, 60, 61, 62, 66, 69, 70, 71, 73, 174, 227, 232 AND 258 OF THE CONSTITUTION OF THE REPUBLIC OF KENYA, 2010 AND IN THE MATTER OF VIOLATION, INFRINGEMENT OF AND/OR THREAT TO THE RIGHT TO INCLUSION AND PUBLIC PARTICIPATION AND IN THE MATTER OF VIOLATION, INFRINGEMENT OF AND/OR THREAT TO THE RIGHT TO CLEAN AND HEALTHY ENVIRONMENT AND IN THE MATTER OF THE ACCESS OF INFORMATION ACT, NO. 31 OF 2016 AND IN THE MATTER OF THE ENVIRONMENTAL MANAGEMENT AND COORDINATION ACT (EMCA) OF 1999 AND IN THE MATTER OF THE LAND ACT, 2012 NO. 6 OF 2012 AND IN THE MATTER OF THE NATIONAL LAND COMMISSION ACT NO. 5 OF 2012 AND PUBLIC PROCUREMENT AND ASSET DISPOSAL ACT, NO. 33 OF 2015 AND IN THE MATTER OF MURANG'A COUNTY LAND LEASES MANAGEMENT ACT AND IN THE MATTER OF THE COUNTY GOVERNMENTS ACT NO. 17 OF 2012** **ELIZABETH WANJIRU NG'ANG'A ...................................................................... 1ST PETITIONER JAMES GATHIGA WANJIKU ................................................................................ 2ND PETITIONER VERSUS MURANG’A COUNTY GOVERNMENT ............................................................. 1ST RESPONDENT** **PUBLIC PROCUREMENT REGULATORY** **AUTHORITY ............................................................................................... 1ST INTERESTED PARTY NATIONAL LAND COMMISSION ........................................................ 2ND INTERESTED PARTY NATIONAL ENVIRONMENTAL MANAGEMENT** **AUTHORITY ............................................................................................. 3RD INTERESTED PARTY** **JUDGMENT** 1. In their Petition dated 4-2-2025 the Petitioners seek the following reliefs. 2. **A declaration issuance and or floating of tender MCG RFP 2024 request for** **proposal for outsourcing of quarry mining operations at L.R. 9213/1 and 2 for a period of 1 year, without conducting public participation is a violation of Article 35 of the Constitution as read with Section 87 of the County Governments Act No. 17 of 2012.** 1. **A declaration does hereby issue, declaring that the issuance and purported tender referred to a MCG RFD 2024 REQUEST FOR PROPOSAL FOR OUTSOURCING OF QUARRY MINING OPERATIONS AT L.R. 9213/ 1 and 2 FOR A PERIOD OF I YEAR is null and void ab initio, void of any legal merit and are a violation of Article 227 of the Constitution as read with Section 87 of the County Governments Act No. 17 of 2012.** 2. **A declaration does hereby issue, declaring that the failure to carry out an Environmental Impact Assessment Report in respect to the mining operations subject to the tender referred to as MCG RFP 2024 REQUEST FOR PROPOSAL FOR OUTSOURCING OF EQUARRY MINING OPERATIONS AT LR. 9213/1 and 2 FOR A PERIOD OF 1 YEAR is a violation of Article 42 of the Constitution of Kenya as read with section 59(1) d of the Environmental Management and Coordination Act No. 8 of 1999.** 3. **As an order of certiorari does issue quashing the decision of the Respondent to issue the tender referred to as MCG RFP 2024 REQUEST FOR PROPOSAL FOR OUTSOURCING OF EQUARRY MINING OPERATIONS AT LR. 9213/1 and 2 FOR A PERIOD OF 1 YEAR.** 4. **An order of prohibition does issue against the Respondent, together with any successful person/persons awarded the thunder referred to as MCG RFP 2024 REQUEST FOR PROPOSAL FOR OUTSOURCING OF EQUARRY MINING OPERATIONS AT LR. 9213/1 and 2 FOR A PERIOD OF 1 YEAR from carrying out quarrying activities on the land parcel known as L.R. 9213/1 and 2, located within Murang’a County.** 5. **An order awarding costs of the petition to the Petitioner.** 6. The petition is based on the following facts. Firstly, on 27-11-2024, the Respondent advertised for the **REQUEST FOR PROPOSAL FOR OUTSOURCING OF EQUARRY MINING OPERATIONS AT LR. 9213/ 1 and 2 FOR A PERIOD OF 1 YEAR**. It invited sealed bids from eligible bidders for the contract. Secondly, the issuance of the tenders and specifically the administrative decision to issue the said contract to mine the quarry was not subjected to any and or sufficient public participation. Thirdly, the Environmental Impact Assessment report of the project has not been carried out, the same was not provided to the public for any kind of discourse nor was it subject to public participation. Fourthly, the mining operation will likely lead to environmental pollution in the area and further become a health hazard to the residents of Murang’a County living in the vicinity of the quarries. No pre operations site visit was done to ensure that the residents are certain of the site of the quarries and the proposed waste disposal site. There have been no demonstrable efforts, policy or tender requirements that have set out guidelines on the contractor’s adherence to the laws that govern waste disposal and no specified area for dumping of soil and other materials. Fifthly, the kind of mining machinery and explosives to be used in the mining operations might lead to noise pollution to the detriment of the residents of Murang’a County. The Respondent opted against and failed to procure the advisory opinion and output of the National Land Commission and use land known as L.R. 9213/1 and 2 as well as its exploitation and use of its natural resources. 7. The petition is opposed by the 1st Respondent which filed a notice of preliminary objection dated 29-8-2025 which has raised four grounds. One, the dispute ought to have been, in the first instance referred to the National Environment Tribunal established under Section 125 of the Environmental Management and Co-ordination Act. Two, any dispute or complaint concerning procurement and award of tenders ought to have been referred to the Public Procurement Administrative Review Board. Three, the Petitioners did not exhaust the remedies provided under the EMCA and the Public Procurement and Disposal Act before filing the petition. Finally the court lacks jurisdiction to hear and determine the dispute under the doctrine of exhaustion of remedies. 8. Counsel for the parties were to file written submissions by 7-7-2026 but so far I have not seen any such submissions. 9. I have carefully considered the petition in its entirety including the grounds, the supporting affidavit by the 2nd Petitioner against the notice of preliminary objection. I find that the following issues arise. 10. **Whether the Petitioners have complied with the procedures for redress under the Environmental Management and Co-ordination Act and Public** **Procurement and Disposal Act before coming to Court?** 1. **Whether the Petitioners have proved exceptional circumstances to qualify for the exception to the doctrine of exhaustion under Section 9(4) of the Fair Administrative Action Act.** 2. Regarding the first issue, I find that the Petitioners have not complied with the procedures in the EMCA. They should have raised their complaint with National Environmental Management Authority first and foremost. It is only after raising their concerns with NEMA that the Petitioners should have contemplated coming to court. NEMA has the statutory mandate to deal with the concerns raised by the petitioners including address noise pollution and the concern of hazardous waste from the quarrying activities complained of. In the case of The **Speaker of National Assembly vs. James Njenga Karume [1992] eKLR**, it was held by the Court of Appeal as follows, inter alia. “**where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament that procedure should be strictly followed.”** 1. Regarding the second issue, I find that the Petitioners have not proved exceptional circumstances to qualify for the exception to the doctrine of exhaustion under Section 9(4) of the Fair Administrative Action Act. The subsection provides as follows. “**The High Court or a subordinate court may, in exceptional circumstances and on application by the Applicant, exempt a person from the obligation to exhaust any remedy if the court considers such exemption to be in the interest of justice.”** The Petitioners in their petition have not demonstrated that there are exceptional circumstances on this petition. Such circumstances would include inadequacy of the prescribed remedy, lack of jurisdiction by the statutory body to determine the dispute, the dispute being one that raises Constitutional questions that the specialized body cannot determine adequately, the proceedings or decision complained of being tainted by breach of natural justice or procedural unfairness among others. None of these circumstances have been shown to exist in this petition. 1. In conclusion and for the reasons given, I find **no merit** in the petition dated 4-2-2025. I consequently dismiss it. No orders as to costs. **Dated, signed and delivered virtually at Murang’a this 22nd day of July, 2026.** **M. N. GICHERU** **JUDGE** **Delivered online in the presence of:-** **Court Assistant – Jackline** **Petitioners’ Counsel – Absent** **Respondent’s Counsel – Absent** **1st Interested’s Party’s Counsel – Absent**