https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5293

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT & LAND COURT AT NAIROBI** **PET NO E029 OF 2025** **ALEKSANDR POLIAKOV** **[suing on his own behalf and on** **Behalf of Jade Valley Vilas Estate - PETITIONER** **VS** **SKY AFRICA HOLDINGS LTD - 1ST RESPONDENT** **NATIONAL ENVIRONMENT** **MANAGEMENT AUTHORITY - 2ND RESPONDENT** **WATER RESOURCES AUTHORITY - 3RD RESPONDENT** **NAIROBI CITY COUNTY - 4TH RESPONDENT** **RULING** **(In respect of the 2nd Respondents' Preliminary objection dated 25/2/26)** 1. What is before the court is the 2nd Respondent's Preliminary Objection dated 25/2/26 and brought against the Petition dated the 30/6/25 on the following grounds; 2. The Petition is incompetent and misconceived as against the 2nd Respondent as it is premised on the allegation that the 2nd Respondent permitted or licensed unlawful development on L.R. No. 22842, yet the 2nd Respondent did not issue any Environmental Impact Assessment licence or approval capable of being challenged in these proceedings. 3. The only formal regulatory action taken by the 2nd Respondent in respect of L.R. No. 22842 was the issuance of an Environmental Restoration Order dated 17th May 2017 Ref. No. NEMA/CDE/NRB/21/14 VOL II pursuant to Section 108 of the Environmental Management and Co-ordination Act. 4. The said Environmental Restoration Order was lawfully challenged by the 1st Respondent before the National Environment Tribunal in Tribunal Appeal No. NET 209 of 2017, and judgment was delivered allowing the Appeal. 5. The Petitioners were not parties to Tribunal Appeal No. NET 209 of 2017 and therefore cannot purport to challenge, question, or indirectly reopen the findings made therein through the present constitutional Petition. 6. By reason of the decision in Tribunal Appeal No. NET 209 of 2017, the issues relating to the Environmental Restoration Order were conclusively determined by a competent statutory tribunal established under Section 125 of the Environmental Management and Co-ordination Act. 7. The Petition, in so far as it seeks to revisit or re litigate matters relating to the alleged development on riparian land and the regulatory actions of the 2nd Respondent, offends the doctrine of res judicata as codified under Section 7 of the Civil Procedure Act. 8. This Honourable Court lacks jurisdiction to sit on appeal over or reopen the decision of the National Environment Tribunal in NET 209 of 2017 in the absence of a proper appeal as provided under Section 130 of the Environmental Management and Co-ordination Act. 9. The Petition does not disclose any reasonable cause of action against the 2nd Respondent as no specific unlawful decision, licence, approval, or omission attributable to the 2nd Respondent has been pleaded. 10. The Petition improperly invokes the constitutional jurisdiction of this Honourable Court in circumstances where no constitutional violation has been demonstrated against the 2nd Respondent and where the dispute, if any, falls within the statutory framework of the Environmental Management and Co-ordination Act. 11. The 2nd Respondent prays that the Petition as against it be struck out with costs. 12. Following the Hon Court's directions for parties to file written submissions, the record shows that only the Petitioner has complied. Its written submissions are dated 9/6/26. 13. The Petitioner's submissions are summarised as follows; 1. The objection is contradictory and falls short of the required threshold because the violations arose after the Tribunal's decision in NET 209 of 2017, so they are not res judicata, and because the petition discloses a clear cause of action against the National Environment Management Authority [NEMA]. 2. The petition cites constitutional violations arising from the 1st Respondent's development on LR No 22842, which disrupted the Kibagare River and its riparian corridor, harming residents of Jade Valley Villas. 3. It is alleged that the 1st Respondent diverted the River by 25 metres and built a boundary wall across its bed, thereby constricting the channel and causing flooding on 24/11/24 and 12/5/25. Additionally, borehole water is contaminated beyond WHO and KEBS standards. The 3rd Respondent confirmed these allegations in its March 2026 reply affidavit. 4. NEMA issued a restoration order on 17/5/2017 under the Environmental Management and Coordination Act [EMCA], which the 1st Respondent successfully challenged in NET 209 of 2017. The Petitioners were not parties to those proceedings. 5. The issue is whether NEMA failed to enforce regulations governing riparian development on the suit land, and whether a violation of the Petitioners' constitutional rights occurred, which is a fact requiring evidence. The petition's facts are admitted by the 3rd Respondent, confirming the core dispute. The objection is therefore fact-dependent. 6. On res judicata, it was argued that the core violations occurred after the tribunal's decision and therefore cannot be res judicata. The floods of 24/11/24 and 12/5/2025, and the borehole contamination, are recent causes of action that arose seven years after NET 209 of 2017. A cause of action not existing at that time could not have been in issue then. These are fresh, independent violations of the petitioners' constitutional rights. Further, the Petitioners were not parties to the Tribunal dispute. 7. The dispute in NET concerned the validity of the 17/5/2017 environmental restoration order. The petition challenged the river diversion, riparian encroachment, flood, contamination, and Respondents' breach of constitutional duties under Articles 35, 42, 43, 69, and 70. These issues were not before the Tribunal. 8. The Tribunal, being a creature of statute with limited jurisdiction, has no power to entertain constitutional claims, which fall within this Court's jurisdiction. 9. The petitioners do not seek to reopen or challenge the NET decision but invoke the Court's constitutional mandate because of ongoing violations of their fundamental rights that occurred after the NET's decision. The NET's jurisdiction, under section 129 of the EMCA, applies only if there is an appealable decision by NEMA affecting a party. Because the appeal route under section 130 of the EMCA was unavailable, the petitioners had no decision to appeal to the NET. The petitioners are therefore in the right forum and must be allowed to ventilate their grievances to their logical conclusion. 10. Relying on the decision in Anarita Karimi Njeu Vs Republic [KLR 1272], the petitioners claim their rights were violated when NEMA failed to prevent unlawful construction diversion. This omission is justiciable, enabling courts to halt harmful environmental acts. The absence of a licence is irrelevant, and the environmental order confirmed a violation and the need for restoration. The claim that violations worsened after the orders were set aside, leading to floods in 2024 and 2025, raises questions about whether NEMA’s exercise of its mandate met constitutional and statutory standards. 11. Relying on the decision in William Odhiambo Ramogi & 3 others v Attorney General & 4 others, the petitioners submitted that their dispute raised substantive constitutional questions concerning the protection of riparian land, the public trust doctrine over water resources, the right to a clean and healthy environment under Art 42, and the right to clean and safe water under Art 43(1)(d). They further submitted that the NET lacked jurisdiction to hear and entertain these matters. They added that, in any event, the court has the power to exempt a party from the doctrine of exhaustion of internal remedies under section 90(4) of the Fair Administrative Action Act where the interests of justice would be served. 12. The petitioner asked the court to adopt the persuasive decision of the court in the case of Joseph Leboo & 2 others Vs Director, Kenya Forest Services & Anor [2013] EKL, in which the court held that, in environmental matters, the common law conception of locus standi does not apply and that any person, without demonstrating personal injury, may institute proceedings to protect the environment. Additionally, relying on the provisions of Art 22(2) of the Constitution, the petitioner submitted that they have locus standi to bring the petition on behalf of the residents of Jade Valley Estate. 13. In conclusion, the petitioners urged the court to dismiss the objection with consent and direct the petition to proceed for hearing on its merits. **Analysis and determination** 1. Having considered the preliminary objection, the grounds upon which it is premised, and the written submissions, the key issue for determination is whether the objection is a pure point of law. If so, whether it is merited. 2. As to whether the preliminary objection is a pure point of law, the starting point is the definition. The Black’s Law Dictionary, 10th Edition defines a Preliminary Objection as; - “… in a case before an international tribunal, an objection that, if upheld, would render further proceedings before the tribunal impossible or unnecessary.” 1. The parameters for considering a preliminary objection are now well settled. A preliminary objection must raise only issues of law. The principles that the court is obliged to apply in determining the merits or otherwise of the Preliminary Objection were set out by the Court of Appeal in the case of Mukisa Biscuit Manufacturing Co. Ltd vs. West End Distributors Ltd [1969] EA 696. At page 700, Law JA stated: “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.” 1. At page 701 Sir Charles Newbold, P added: “A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is usually 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. Additionally, in the case of Avtar Singh Bhamra & Another…Vs….Oriental Commercial Bank, Kisumu HCCC No.53 of 2004, the court held that:- “A Preliminary Objection must stem or germinate from the pleadings filed by the parties and must be based on pure points of law with no facts to be ascertained.” 1. From the foregoing definitions, therefore, the test to be applied in determining a proper preliminary objection can be culled as follows: - 2. A preliminary Objection must be a pure point of law which if argued may dispose of the entire suit. 3. A Preliminary Objection should be based on the presumption that the pleadings and or facts as pleaded by the opposite side are correct or agreed facts. 4. A Preliminary Objection cannot be entertained where; a. The facts are disputed/contested. b. The facts are liable to be contested. c. The facts are to be proved through process of evidence. d. What is sought is an exercise of judicial discretion. 1. Whether the 2nd Respondent permitted or licensed unlawful development on L.R. No. 22842 and/or failed to exercise its statutory and constitutional mandate is a question of fact that requires the court to examine the evidence, and therefore does not constitute a pure point of law. 2. It is the 2nd Respondent's case that this petition contravenes the doctrine of res judicata. Section 7 of the Civil Procedure Act provides as follows. “No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court. Explanation. —(1) The expression "former suit" means a suit which has been decided before the suit in question whether or not it was instituted before it. Explanation. —(2) For the purposes of this section, the competence of a court shall be determined irrespective of any provision as to right of appeal from the decision of that court. Explanation. —(3) The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other. Explanation. —(4) Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. 1. Recently, the Supreme Court added its voice on the subject in the case of John Florence Maritime Services Ltd & Another – vs- Cabinet Secretary for Transport & Infrastructure & 3 others (2021) eKLR, where the court affirmed the issue of res judicata in reference to constitutional Petitioners and stated that; “We reaffirm our position as in the Muiri Coffee case that the doctrine of res judicata is based on the principle of finality which is a matter of public policy. The principle of finality is one of the pillars upon which our judicial system is founded and the doctrine of res judicata prevents a multiplicity of suits, which would ordinarily clog the Courts, apart from occasioning unnecessary costs to the parties; and it ensures that litigation comes to an end, and the verdict duly translates into fruit for one party, and liability for another party, conclusively. If we were to find that the doctrine does not apply to constitutional litigation, the doctrine may very well lose much of its legitimacy and validity. We say this in light of the fact that constitutional tenets permeate all litigation starting with the application of Article 159 of the Constitution in both civil and criminal litigation, and its application now embedded in all procedural statutes. Further Article 50 on right to fair hearing and Article 48 on access to justice are fundamental rights which every litigant is entitled to. Such a holding may very well lead to parties, that whenever they need to circumscribe the doctrine of res judicata, they only need to invoke some constitutional provision or other.” 1. The compounding effect of the case law cited above is that Res judicata is a doctrine of substantive law, its essence being that once the legal rights of parties have been judicially determined, that determination stands as a conclusive statement as to those rights. 2. The learned authors of Mulla, Code of Civil Procedure, 18th Ed. 2012 have observed that the principle of res judicata, as a judicial device on the finality of Court decisions, is subject only to the special scenarios of fraud, mistake or lack of jurisdiction (p.293): “The principle of finality or res judicata is a matter of public policy and is one of the pillars on which a judicial system is founded. Once a judgment becomes conclusive, the matters in issue covered thereby cannot be reopened unless fraud or mistake or lack of jurisdiction is cited to challenge it directly at a later stage. The principle is rooted to the rationale that issues decided may not be reopened and has little to do with the merit of the decision.” 1. In the case of Henderson v. Henderson (1843) 67 E.R. 313, the rationale of the doctrine of resjudicata was stated as follows: “ … where a given matter becomes the subject of litigation in, and adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward, as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a Judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time” [emphasis is mine]. 1. In the case of re Estate of Riungu Nkuuri (Deceased) [2021] eKLR the court stated as follows: “The test for determining the Application of the doctrine of res-judicata in any given case is spelt out under Section 7 of the Civil Procedure Act. In Independent Electoral & Boundaries Commission vs Maina Kiai & 5 Others [2017] eKLR, the Court of Appeal while considering the said provision held that all the elements outlined thereunder must be satisfied conjunctively for the doctrine to be invoked. That is: " (a) The suit or issue was directly and substantially in issue in the former suit. (b) That former suit was between the same parties or parties under whom they or any of them claim. (c) Those parties were litigating under the same title. (d) The issue was heard and finally determined in the former suit. (e) The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.” 1. In essence, therefore, the doctrine expressly states that for a matter to be res judicata, the matters in issue must be similar to those previously in dispute between the same parties, and the matter must have been determined on the merits by a Court of competent jurisdiction. 2. In this case, the 1st respondent averred that it issued an environmental restoration order dated 17/5/2017 under section 108 of EMCA, which order was successfully challenged in NET 209 of 2017, where the appeal was allowed. It is its case that this petition is an attempt to relitigate the same issues, hence its objection on the ground of res judicata. 3. For starters, the court was not given the opportunity to peruse the claim and the tribunal's decision in NET 209 of 2017. It is therefore not in a position to comment on them. That said, even if they had been available, the court would have had to peruse the evidence, thereby confirming the petitioner's position that the objection is fact-dependent. 4. It has been confirmed by the objector that the petitioners were not parties to NET 209 of 2017, and therefore the question of similar parties and issues would not be applicable to this case. Holding otherwise would amount to throwing the petitioners out of the temple of justice before they are heard, a position that the principles and law of natural justice, as espoused under Arts 47 and 48 of the Constitution, frowns upon. 5. According to the pleadings before the court, the issue in NET 209 of 2017 concerned the restoration order of 17/5/2017 between the 1st and 2nd respondents. The issues raised in this petition, in the main, stem from alleged constitutional violations concerning riparian land, water contamination, and flooding, as well as the 2nd respondent's alleged breaches of constitutional and statutory duties, including the duty to maintain a clean and healthy environment. In my considered view, these issues fall outside the Tribunal's jurisdiction and belong to the province of this court. 6. I am guided further by the decision in the case of **Henry Wanyama Khaemba –vs- Standard Chartered Bank Ltd & Another (2014) eKLR,** the court stated as follows: - “The issues of res judicata, duplicity of suits and suit having been spent will require probing of evidence as it is already evident from the submissions by the 1st Defendant. They are incapable of being handled as Preliminary Objections because of the limited scope of jurisdiction on Preliminary Objections.” 1. Equally in the case of **George Kamau Kimani & 4 Others –vs- County Government of Trans Nzoia & Another (2014) eKLR,** the court stated: - “……….The best way to raise a ground of res judicata is by way of Notice of Motion where pleadings are annexed to enable the court to determine whether the current suit is res judicata.” 1. I think I have said enough to show that the preliminary objection is fact-dependent and, on that basis, calls on the court to inquire into the evidentiary aspect of the dispute, thereby ousting it from being a pure point of law. 2. In the end, the objection is unmerited. It is dismissed with costs in favour of the petitioners. 3. Orders accordingly **DELIVERED, DATED AND SIGNED AT NAIROBI THIS 14TH DAY OF AUGUST 2026 VIA MICROSOFT TEAMS.** **J G KEMEI** **JUDGE** **Delivered virtually in the presence of:** 1. Masaba HB for Ms Wangare for the Petitioners 2. N/A for the 1st -3rd Respondents 3. Ms Wanjala HB for Ms Kisoi for the 4th Respondent 4. CA – Mr Amos