https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1017

Toshike Construction Co Ltd & 2 others v Sokhi & 12 others (Civil Appeal E031 of 2024) [2026] KECA 1017 (KLR) (29 May 2026) (Judgment) Neutral citation: [2026] KECA 1017 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal E031 of 2024 DK Musinga, M Ngugi & GV Odunga, JJA May 29, 2026 Between Toshike Construction Co Limited 1st Appellant Danns Jungle Investments Limited 2nd Appellant Wokabi Mwago 3rd Appellant and Kaku Singh Sokhi 1st Respondent Nairobi City County Government 2nd Respondent National Environment Management Authority (NEMA) 3rd Respondent National Construction Authority 4th Respondent Mansaat Holdings limited 5th Respondent Faud Hussein 6th Respondent Stephen Gathuita Mwangi 7th Respondent Patrick Analo Akivaga 8th Respondent Mamo Boru Mamo 9th Respondent Daniel Wanjiru 10th Respondent Maurice Aketch MBS 11th Respondent Eng Kanda Bowen 12th Respondent Silas John Sanya Ogengo 13th Respondent (Being an appeal from the ruling and order of the Environment and Land Court at Nairobi (D. M. Mwangi, J) delivered on 30th November 2023 in Nairobi ELC Case No. E058 of 2023 Environment & Land Petition E058 of 2022 ) Judgment 1.The suit from which this appeal arises was filed in the Environment and Land Court (ELC) by the appellants against the respondents. In that suit, the appellants pleaded that the 1st respondent was the owner of L.R. No. 209/5665/2 situated on Mwambao Lane, off Limuru Road, in Parklands, Nairobi (the suit property) while the appellants were residents, occupiers and beneficial owners of Maisonettes I, H, & G respectively on L.R. No. 209/7546 City Park Drive off Limuru Road at Parklands Nairobi, which neighbours the suit property. It was their case that prior to November, 2022, the 1st respondent relied on a private sewer line that passes through, among other properties, the appellants’ properties, for disposal of toilet and bathroom effluent. However, in or about November, 2022, the 1st respondent and or his servants, agents, developers and proponents started developing the suit property comprising commercial (shops) cum multi– dwelling residential apartments by demolishing the single dwelling house and other structures thereon, cutting down the trees and other vegetation that existed thereon, and excavating the suit property grounds. This, according to them, was done without securing prior requisite development permissions and permits/licenses from the 2nd respondent’s County Executive Committee Member in charge of Built Environment and Urban Planning, the 3rd respondent, National Environment Management Authority (NEMA) and the 4th respondent, the National Construction Authority (NCA). Despite drawing the 2nd respondent’s attention to the foregoing, no remedial action was taken. 2.The appellants faulted the 2nd respondent for failing to perform its statutory obligations and issue a stop order to the 1st respondent and to direct it to restore the suit premises to its original condition or to as near as its original condition, within 90 days of such an order as provided by the law. 3.In the appellants’ view, the 1st respondent’s actions violated articles 42 and 70 of the Constitution of Kenya, the Physical and Land Use Planning Act (PLUPA), the National Construction Authority Act (NCAA), Environmental Management and Co-ordination Act (EMCA) and other rules and regulations whose particulars were set out in the plaint. As a result of the said actions, the appellants averred, their rights were violated and they, consequently, suffered injuries, losses, annoyances, nuisances and inconveniences. They, therefore, sought an array of remedies, including an order of permanent injunction to stop the development, an order of demolition of the development, a declaration that the development on L.R. No. 209/5665/2 violated the Constitution and the law, a restoration order, an order of mandatory injunction, and general and aggravated damages. Pending the hearing and determination of their suit, the appellants filed an application dated 17th February 2023 seeking interim reliefs, in form of a temporary injunction, restraining carrying on of further development activities on the suit property. 4.The application was opposed by the 5th respondent which, apart from responding to the application, filed a notice of preliminary objection challenging the jurisdiction of the trial court to hear both the main suit and the application, on the grounds that:a.the appellants had not exhausted the dispute resolution mechanisms provided for by statute.b.the appellants had not sought an enforcement notice in accordance with section 72(1)(a) of the Physical and Land Use Planning Act.c.the appellants failed to lodge an appeal with the County Physical and Land Use Planning Liaison Committee under section 78 of the of the Physical and Land Use Planning Act.d.the appellants failed and/or refused to move the National Environment Management Authority under section 108 of the Environment Management and Co- ordination Act.e.the appellants failed to lodge a formal complaint with the Complaint’s Committee as provided under section 31 of the Environmental Management and Co- ordination Act.f.the appellants’ case was an abuse of the court process and the appellants are engaging in forum shopping.g.the remedies sought in the plaint were in the nature of judicial review remedies. 5.The said preliminary objection was heard in limine and was dismissed with costs on 4th July 2023. 6.The ruling the subject of the instant appeal is, however, in respect of the appellants’ amended application dated 6th April 2023 and the 1st respondent’s application dated 18th April 2023. 7.The 1st respondent’s application sought to have the suit against him struck out on the ground that he was not the owner of the suit property and had no interest therein. His assertions were supported by the 5th respondent which confirmed that it was the owner of the suit property. Although the appellants insisted that the 1st respondent was the owner of the suit property, the learned Judge found, on the basis of the evidence presented, including the fact that the EIA license was issued to the 5th respondent, that the 1st respondent had established that he was no longer the owner of the suit property and hence there was no basis for filing and maintaining the suit against him. Accordingly, the suit against the 1st respondent was struck out with costs assessed at Kshs 50,000. 8.The appellants’ amended Notice of Motion which was dated 6th April 2023, sought a temporary injunction to restrain the respondents from undertaking developments on the suit property. It was premised on the grounds that the developments thereon had not been approved/permitted by NEMA and the Nairobi City County Government. The learned Judge, however, found that, from the affidavit evidence presented before the court, the 5th respondent had obtained the approvals of the Nairobi City County Government, including one for change of user. According to the learned Judge, the other issues such as whether or not there was public participation could only be ventilated before the County Physical and Land Use Planning Liaison Committee as provided under the Physical and Land Use Planning Act. 9.Regarding the NEMA License, the learned Judge found that the license was issued on 15th June 2023, as evidence in the attachment to the replying affidavit filed on behalf of the 3rd, 9th & 10th respondents. In the learned Judge’s view, the import of the issuance of the EIA license by NEMA is that any complaints against its issuance must first and foremost be lodged with the National Environment Tribunal established under EMCA. Therefore, the court lacked the jurisdiction to entertain such complaint at the first instance. In support of this position the learned Judge cited the case of Kibos Distillers Limited & 4 others v Benson Ambuti Adega & 3 others [2020] eKLR, (Kibos Distillers Case) in which this Court reiterated that the concept of original jurisdiction does not operate to oust the jurisdiction of other competent organs that have legislatively been mandated to hear and determine a dispute, stressing that under section 130 of EMCA and sections 15, 19 and 38 of the Physical and Land Use Planning Act, the jurisdiction of the Environment and Land Court is appellate in nature. 10.With regard to the court’s ruling of 4th July 2023 on the preliminary objection by the 5th respondent, the learned Judge held that at the point of determining it, sufficient evidence had not been availed in its support. However, all the material having been placed before the court, he was convinced that the court lacked jurisdiction to determine the appellants’ case in the first instance. In arriving at his decision, the learned Judge cited the case of Mercy Wangari Buku v NEMA & 3 others (2021) eKLR (Mercy Wangari Buku’s Case). Consequently, he struck out the appellants’ suit in its entirety, but since the NEMA License had not been issued at the time the suit was filed, declined to award the costs of the struck-out suit. 11.Aggrieved, the appellants are before us challenging the decision on 31 grounds which they, in their submissions, condensed into 3 as follows:1.Whether the learned Judge erred in law and in fact in striking out the appellants’ suit on the basis of a preliminary objection by the 3rd, 9th and 10th respondents before and without affording the appellants an opportunity to be heard.2.Whether the learned trial Judge erred in law when he reviewed, varied and/or set aside his own ruling and orders suo moto, and on an issue that was res judicata.3.Whether the learned Judge erred in law and in fact in finding and holding that the court had no jurisdiction to hear and determine the appellants’ suit. 12.We heard the appeal on the Court’s virtual platform on 26th January 2026. Learned counsel, Mr Daniel Mavisi, appeared for the appellants; learned counsel, Mr Adano Damocha, holding brief for Mr Haji appeared with Mr Githara Chuchu for the 1st respondent; learned counsel, Mr. Swanya Ogeto, appeared for the 2nd, 7th and 8th respondents; learned counsel, Ms Brenda Majune, appeared for the 3rd, 9th and 10th respondents; learned counsel, Ms Cindy Ogola, appeared for the 4th, 11th to 13th respondents; and learned counsel, Mr Michael Mubea appeared with Mr Machira for the 5th respondent. The respective learned counsel relied on their written submissions which they highlighted. 13.On behalf of the appellants, it was submitted that, instead of hearing the appellants’ application dated 16th October 2023 which had been directed to be served for directions on 9th November 2023, a date when the court was not sitting, the learned Judge instead, on 30th November 2023, delivered a ruling in respect of the 3rd, 9th and 10th respondents’ preliminary objection dated 26th September 2023. It was noted that the said ruling as delivered without directions being given on the appellants’ pending application for contempt against the 3rd and the 5th respondents and before and without affording all the parties, and the appellants in particular, an opportunity to be heard on the objection. Citing various decisions on the importance of the right to be heard, it was submitted that the appellants and other parties were denied their rights under Article 50(1) of the Constitution, notwithstanding the pendency of a contempt application. 14.According to the appellants, since none of the parties appealed against or sought to review the ruling of 4th July 2023 that dismissed the 5th respondent’s preliminary objection challenging jurisdiction of the court, on the authority of the case of Lotta v Tanaki (2003) 2 EA 556, as confirmed in Gladys Nduku Nthuki v Letshego Kenya Limited (2022) eKLR, the issue of jurisdiction was fully determined and any attempt to reopen or revive it remained res judicata. They insisted that it was erroneous, unprocedural and irregular for the trial court, on its own motion, to revisit the issue of jurisdiction and review, vary and set aside its own previous rulings and orders. 15.The learned Judge was further faulted for striking out the appellants’ suit on misinterpretation and misapplication of the decisions in Kibos Distillers and MercyWangari Buku cases. According to the appellants, the several issues of violation of their rights and fundamental freedoms fell within the jurisdiction of the Environment and Land Court (ELC) which has original jurisdiction to hear and determine them, and the case of Abidha Nicholus v Attorney General & 7 others; National Environmental Complaints Committee & 5 others (Interested Parties) (Petition E007 of 2023) [2023] KESC 113 (KLR) (Abidha Nicholus Case) was cited in support of this submission. 16.In his oral address before us, Mr Mavisi reiterated that while they were waiting for the ruling, a preliminary objection was filed together with a replying affidavit and submissions which the learned Judge relied upon in arriving at his ruling without the appellants being heard on the preliminary objection. It was his position that the issues in the suit raised constitutional questions, including the right to information, which transcended the rights of the parties before the court. In counsel’s submissions, sections 58 to 61 of PLUPA details how development applications are to be dealt with and that NEMA can only issue licenses when development plans have been approved. In this case, the suit was filed long before the license was issued and hence could not have been challenged prior to the suit. 17.Supporting the appeal, the 2nd, 7th and 8th respondents submitted that for the appellants to exhaust the alternative internal dispute resolution mechanisms as provided for in the EMCA, they must have a decision in their hands. In this matter, however, the 3rd respondent failed to furnish them with an investigation report which would have hoisted them to the next step, the NEMA Tribunal. It was the lack of such report that necessitated the institution of the suit. In the absence of the decision made by the respective bodies, there was no decision-making process capable of being challenged by judicial review as the 5th respondent contended. It was therefore submitted that the trial court, in its decision, abdicated its jurisdiction. 18.In his oral address, Mr Ogeto reiterated that as at the time of the filing of the suit, the 2nd, 7th and 8th respondents had not received the development permission application which would have triggered the internal dispute resolution mechanisms and in the absence of the application, no decision could be made that would have activated the appeal mechanism. Accordingly, the ELC had the jurisdiction to hear the suit. 19.The 1st respondent’s position, as captured in the oral address by Mr Adano, was that the 1st respondent furnished evidence that he was not the owner of the suit property. This evidence, it was contended, was not controverted and accordingly, the learned Judge cannot be faulted for striking out the suit against the 1st respondent. 20.The 3rd, 9th and 10th respondents, while opposing the appeal and supporting the decision, submitted that the application, as framed against the 2nd, 3rd, 4th 8th, 9th and 10th respondents, was based on the allegation that the 1st, 5th and 6th respondents were carrying out a development without the requisite permits. It was noted that the appellants further based their application and suit on their environmental rights under Articles 42 and 70 of the Constitution of Kenya, EMCA and on an aspect of waste management, specifically management of effluent, which the 3rd respondent oversees. According to their submissions: following the issuance of the Environmental Impact Assessment (EIA) License No. NEMA/EIA/PSL/26369 on 15th June 2023 by the NEMA to the 5th respondent, both the application and the suit had abated since, firstly, the license overtook the appellants’ ground in the application, that the development was unregulated by the 3rd respondent; secondly, the license allayed fears of any environmental concerns by the appellant under Article 42 and 70 of the Constitution and EMCA, as the same had been thoroughly assessed by EMCA through the EIA Study Report that had been submitted by the developer before its issuance; and thirdly, the EIA ilcense had addressed the appellant’s ground 6 of the application on sewage management by the 5th respondent. 21.It was submitted that although the license did not set out the timelines for taking out the sewerage connection permits, NEMA expected the developers to take out such permits in the course of their construction and before plumbing was done. To the said respondents, since NEMA continuously inspects development projects in the course of construction to ensure compliance with the conditions set out in the EIA license, the 5th respondent’s project was not an exception. Further, before occupation, every such building is inspected and a Certificate of Occupation issued by the Nairobi City County Government and therefore, if sewage and effluent have not been properly taken care of, such building cannot be legally occupied. 22.It was therefore submitted that the appellants’ application was overtaken by events and that the trial court was stripped of jurisdiction. In this respect, the questions of law and fact before the court could only be properly addressed by the National Environment Tribunal which is clothed with the jurisdiction under section 129 of EMCA to hear and determine the appellants’ grievance. In support of these submissions, reliance was placed on this Court’s decision in the Kibos Distillers Case, to highlight the fact that under section 130 of EMCA and sections 15, 19 and 38 of the repealed Physical Planning Act, the jurisdiction of the ELC is appellate and that a court with original jurisdiction in some matters and appellate jurisdiction in others cannot, by virtue of its appellate jurisdiction, usurp original jurisdiction of other competent organs since original jurisdiction is not the same thing as unlimited jurisdiction. It was submitted that the learned Judge rightly observed that sufficient documentation was presented before the court to demonstrate that the developer had obtained the relevant approvals, and that the doctrine of exhaustion estopped the appellants from approaching the ELC in the first instance since the first port of call should have been the County Physical and Land Use planning Liaison Committee as stipulated under the PLUPA. In support of this position the said respondents relied on this Court’s decision in Mutanga Tea & Coffee Company Limited v Shikara Limited & Another [2015] eKLR; which cited the case of Speaker of the National Assembly v Karume (1992) KLR (Karume Case). 23.In the respondents’ view, the appellants failed to demonstrate exceptional circumstances that would justify bypassing the National Environment Tribunal and the County Physical and Land Use Planning Liaison Committee. According to the 3rd, 9th and 10th respondents, the trial court rightly found that it lacked the requisite jurisdiction to determine the appellants’ application and correctly exercised its discretion in allowing the 3rd, 9th and 10th respondents’ preliminary objection dated 29th September 2024 that challenged the court’s jurisdiction. Without jurisdiction, the court had no further business entertaining the case. 24.According to Ms Majune for the 3rd, 9th and 10th respondents, NEMA having issued the EIA license on 15th June 2023, the suit was overtaken by events as the allegations of an unregulated project were cured. The EIA license also addressed the other concerns raised in the suit with whose compliance NEMA will continue to monitor. 25.The appeal was similarly opposed by the 4th, 11th, 12th and 13th respondents who agreed with the learned Judge that complaints against the issuance of a NEMA license must be first and foremost lodged with the Tribunal established under section 129 of EMCA and sections 57 to 58 of PLUPA. Citing Kibos Distillers Case, it was submitted that the doctrine of exhaustion of remedies is well established in Kenyan jurisprudence to the effect that courts only intervene after statutory mechanisms are exhausted. In this case, it was contended, the appellants improperly invoked the jurisdiction of the ELC prior to exhausting remedies before the National Environment Tribunal (NET) or the Liaison Committee, and the learned Judge was right in declining jurisdiction since, as held by the Supreme Court in Samuel Kamau Macharia & another v Kenya Commercial Bank Ltd & 2 others [2012] eKLR, courts derive their jurisdiction from the Constitution and statute, not from sympathy or perceived injustice and as held in the Karume Case, 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. 26.As regards res judicata, it was submitted that jurisdiction is a threshold issue that can be raised at any stage and therefore courts are empowered to revisit jurisdiction even suo motu. In this case, it was contended, the Judge did not “vary” his earlier ruling; rather, he properly reconsidered jurisdiction in light of new developments (issuance of NEMA license) since, as held in Owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1, jurisdiction is everything, and without it, a court must down its tools. 27.With respect to the alleged denial of fair hearing, it was submitted that, from the record, the appellants were heard extensively on their application and the preliminary objections and that the Judge’s ruling was based on pleadings and submissions on record hence there was no violation of Articles 47 and 50 of the Constitution. The right to be heard, according to the respondents, does not extend to pursuing a matter in a forum without jurisdiction. We were urged to dismiss the appeal with costs to the 4th, 11th, 12th and 13th respondents. 28.In opposing the appeal, the 5th respondent submitted that after the dismissal of the 5th respondent’s preliminary objection, the learned Judge, on 4th July 2023, directed parties to file and serve written submissions in respect of the appellants’ amended Notice of Motion dated 6th April 2023, the 1st respondent’s application dated 18th April 2023, and the preliminary objection by the 4th, 11th, 12th and 13th respondents dated 17th April 2023. 29.According to the 5th respondent, this appeal revolves around the issues: whether the court, in its ruling of 30th November 2023, considered the question of jurisdiction suo moto; whether the court erred in striking out the appellants’ suit for want of jurisdiction in light of the ruling of 4th July 2023; whether the trial Court had jurisdiction to hear and determine the appellants’' suit; and whether the appellantss were afforded a fair hearing. 30.On the issue of the suo moto consideration of jurisdiction, it was submitted that the trial court did not act suo moto, since it had to satisfy itself that it had jurisdiction, even on own motion as was held by this Court in John K. Malembi v Trufosa Cheredi Mudembei & 2 others [2019) eKLR and the decision of the Nigerian Court of Appeal, Kaduna Division C decision in Habig Nig Bank Limited v Nashtex International Nig Ltd CA/K/13/04 cited in the case of Political Parties Dispute Tribunal & Anor v Musalia Mudavadi & 6 Others Ex-Parte Petronila Were (2014) eKLR. 31.On whether the court erred in striking out the appellants’ suit for want of jurisdiction in light of the ruling of 4th July 2023, it was submitted by the 5th respondent that by the time of giving of directions on the prosecution of the amended Notice of Motion, the suit had substantially metamorphosed by introduction of ten (10) new substantive parties and a total of eight (8) new/additional reliefs had been sought by the appellants.Upon filing of replying affidavits and approvals from the County, NEMA and NCA, it turned out that the substratum of the appellants’ suit was overtaken by events since the thrust of the appellants’ case was the absence of the necessary approvals which approvals were now before the trial Judge. Citing the Supreme Court case of Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 others (supra), it was submitted that it is incumbent upon a court to satisfy itself that it has jurisdiction to entertain a matter before setting it down for hearing. This Court’s decision in Hafswa Omar Abdalla Taib & 2 Others v Swaleh Abdalla Taib (2015] KLR was cited in support of the submission that the court has authority to act on its own motion on the question of the jurisdiction of the court even where it has not been raised by the parties. 32.Regarding the issue of res judicata, it was submitted that the trial court's impugned ruling was not based on pleadings filed by the 3rd, 9th and 10th respondents, but that it arose in determination of the appellants’ amended Notice of Motion which introduced additional parties who were neither involved in the interim orders nor were initially afforded an opportunity to be heard on the allegations made against them within the same suit. Therefore, their responses and objections cannot be categorized as res judicata. In addition, whereas a preliminary objection is on a pure point of law, the trial court later had sufficient facts, in the nature of building approvals, development permissions, NEMA EIA license and NCA approval, to consider the question of the court's jurisdiction. Citing this Court’s decision in Accredo Ag & 3 Others v Steffano Uccelli & Another [2019] eKLRand the Supreme Court’s decision in John Florence Maritime Services Limited & another v Cabinet Secretary Transport & Infrastructure & 3 others (Petition 17 of 2015) [2021] KESC 39 (KLR) (Civ) (6 August 2021) (Judgment), in which the test for invocation of the doctrine of res judicata was restated, it was submitted that given the preliminary nature of the ruling of 4th July 2023, a fact that clearly manifests from its wording, the issue of jurisdiction had not been determined with finality since it was only based on the evidence that was then before the trial Court. It was the 5th respondent’s position that the trial court was entitled to down its tools as soon as it became aware that a license and all other prerequisite approvals had been obtained and were before it. Accordingly, it was contended, the trial court did not err in striking out the suit despite dismissing a preliminary objection challenging the court's jurisdiction at an interlocutory stage. 33.On whether the trial court had jurisdiction to hear and determine the suit, Karume’s Case was cited for the proposition that where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, courts ought to be fora of last resort as opposed to being the first port of call as was held in Geoffrey Muthiga Kabiru’s Case and the case of Samson Chembe Vuko v Nelson Kilumo & 2 others [2016] eKLR. The doctrine of exhaustion of administrative remedies, it was submitted, has been given effect in our jurisdiction through section 9(2) of Fair Administrative Action Act in which it is provided that the High Court shall not review an administrative action or decision unless the mechanisms for appeal or review and all remedies available under any other written law, are exhausted. Given the nature of the orders sought by the appellants, it was submitted that the appellants ought to have sought exemption from the obligation to exhaust available remedies as required under section 9(4) of the Fair Administrative Action Act if there were exceptional circumstances justifying direct access to the ELC in the first instance. 34.The 5th respondent relied on section 129(1) of the EMCA which provides that any person aggrieved by the grant of a license or permit or a refusal to grant a license or permit, or the transfer of a license or permit, under the Act or its regulations should appeal to the NET and section 130 thereof which prescribes the 30 days’ period for challenging the decision of the Tribunal before the the Environment and Land Court and the finality of such decision. It was submitted that, based on the decision of this Court in Kibos Distillers Case, NEMA having issued the license to the 5th respondent on 15th June 2023, the proper forum for agitation of the appellants’ grievances ought to have been the NET. Therefore, the trial court having been apprised of the approvals and development permissions issued to the 5th respondent, the learned Judge correctly held that the appellants were supposed to seek administrative remedies before going to court. The 5th respondent was of the view that the impugned ruling did not prejudice the appellants as they could still seek administrative remedies if they were of the view that their rights were infringed. 35.Regarding the issue whether the appellants were afforded a fair hearing, it was submitted that on 4th July 2023, the trial Court directed that, for purposes of expediency and saving time, the appellants’ application dated 6th April 2023 and the 5th respondent’s application dated 18th April 2023 and the 4th, 11th, 12th and 13th respondents’ preliminary objection dated 17th April 2023 "to be heard at the same time by way of written submissions beginning with the Plaintiffs who shall file and serve in 14 days". It was submitted that the appellants confirmed that on 29th September 2023, they were served with Notice of Appointment of Advocates, Notice of Preliminary Objection, a replying affidavit sworn by Catherine Thaiti, written submissions and a List of Authorities of even date by the 3rd, 9th and 10th respondents. A NEMA Environmental Impact Assessment (EIA) License No. NEMA/EIA/PSL/26369 issued to the 5th respondent on 15th June 2023 was produced in the said affidavit. Instead of filing any controverting evidence and/or further submissions in reaction to those filings, and despite the ruling coming over a month later, the appellants proceeded to commence contempt of court proceedings against the 3rd and 5th respondents on the misguided assumption that issuance of that license was in breach of the temporary injunction order issued by the trial Court on 29th March 2023, relating to developments. Despite being aware of the said documents, the appellants’ counsel, on 23rd November 2023 informed the court that he was ready to take the ruling, which was then deferred to 30th November 2023 at 2:30 pm 36.The 5th respondent contended that it was therefore disingenuous for the appellants to argue that they were not heard on the preliminary objections prior to the ruling appealed against. Further, contrary to the assertions in the Memorandum of Appeal, the appellants filed a Notice of Motion dated 16th October 2023, when the trial court had retired to write a ruling on their Amended Notice of Motion dated 6th April 2023 and their counsel did not, on 23rd November 2023, request for directions on this application. It was submitted that having struck out the suit for want of jurisdiction, the court could not then hear the application. In support of this contention, the 5th respondent cited the decision of this Court in the Kibos Distillers Limited Case for the proposition that the flexible nature of the duty of fairness recognizes that meaningful participation can occur in different ways in different situations, while the case of Kwanza Estates Limited v Dubai Bank of Kenya limited (In Liquidation) & Kenya Deposit Insurance Corporation (The Liquidator of Dubai Bank Kenya Limited) [2016] KECA 465 (KLR) was cited in support of the position that a judge, in determining a dispute, is not restricted only to the provisions of the law cited by a party. 37.Since the striking out of the suit did not leave the appellants without recourse, as they will have their day before the Environment and Land Court on appeal if dissatisfied with the decision of the National Environment Tribunal and other bodies mandated with determination of their grievances, we were urged to dismiss the appeal with costs. 38.Highlighting the above submissions before us, Mr Mubea emphasised that the approvals issued to the 5th respondent had not been challenged. According to learned counsel, as at the time the suit was filed, the development had not commenced as all that the 5th respondent did was to prepare the grounds awaiting the issuance of the license. In his view, the appellants could have invoked section 129 of EMCA to challenge the approvals and the grant of the license. 39.We have considered the submissions made on behalf of the parties before us in this appeal. In an appeal such as this, where the decision appealed against was not in respect of the determination of the suit on its merits, this Court, in arriving at its decision must be cautious in restricting itself to the issues that were placed before the trial court without being seen to be determining the issues that were not the subject of the proceedings from which the appeal arose. To that extent the Court should proceed in a similar manner as it does when dealing with appeals from interlocutory appeals where it was stated by this Court, in Said Almed v Mannasseh Benga & Another [2019] eKLR that the Court should avoid making conclusive findings of fact in order not to prejudice the proceedings in the main trial which were not conclusively determined. 40.It is important to put the matter into perspective by briefly setting out the chain of events leading to the decision. The appellants’ suit was originated by way of a plaint dated 17th February, 2023. It was initially filed against the 1st and 2nd respondents only. By an order dated 29th March 2023, NEMA was directed to be added as a party to the suit and the other respondents were added to the suit vide the amended plaint dated 6th April 2023, the same date the application was amended. The 11th, 12th and 13th respondents filed their notice of preliminary objection dated 17th April 2023 against the said amended Notice of Motion. The 5th respondent’s preliminary objection was dated 20th April 2023. On 24th April 2023, the learned Judge issued directions on the hearing of the 5th respondent’s preliminary objection and on 24th May 2023, the ruling date for the said objection was set. 41.In the meantime, the 5th respondent filed a replying affidavit to the amended Notice of Motion, dated 23rd May 2023 to which was attached the Change of User Approval obtained on 1st February 2023 and Permission to Develop Proposed Apartments obtained on 12th April 2023, from the 2nd respondent. In the responses by the respondents, the trial court was apprised that decisions had since been made by the Nairobi City County, National Construction Authority (NCA), NEMA Environmental Impact Assessment, in exercise of their respective statutory mandates. 42.In the ruling dated 4th July 2023 dismissing the preliminary objection, the learned Judge expressed himself as hereunder:“The 2nd Defendant is categorical that it has not received applications for development from the 1st Defendant. Even if it has, it has not rendered a decision on the same.Similarly, the 2nd Defendant argues that NEMA has not rendered any decision in respect of the development in the suit premises. I fully agree with the submissions by the Plaintiffs and the 2nd, 7th and 8th Defendants. Under Section 129 of EMCA, it is only, when a party is aggrieved by a decision made by the authority that he/she can move to the National Environment Tribunal (NET). That too applies to the County Physical Planning & Land Use Liaison Committee. Until and unless a decision is made by the above mentioned bodies, what would the Plaintiffs be appealing from? Accordingly, and in the circumstances of this case, the court finds that the Plaintiffs have properly invoked the jurisdiction of this court. The court, as the matter stands now has the jurisdiction to entertain and determine the matter.” 43.Immediately after delivery of the said ruling, the learned Judge directed that the appellants’ application dated 6th April 2023 and the 1st respondent’s application dated 18th April 2023 as well as the preliminary objection by the 4th, 11th, 12th and 13th respondents dated 17th April 2023 be heard at the same time and that submissions in respect thereof be filed. The matter was then fixed for mention on 7th July 2023 for fixing a ruling date. On 31st July 2023, the matter was mentioned and a ruling date fixed for 26th September 2023. In the meantime, on 29th September 2023, a preliminary objection was filed on behalf of the 3rd, 9th and 10th respondent in which it was averred that following the issuance of the EIA License No. NEMA/EIA/PSL/26369 to the 5th respondent on 15th June 2023, the application had been overtaken by events and that the court lacked jurisdiction to determine the application and the suit. Together with the preliminary objection, the said respondents filed a replying affidavit of the same date raising the same issues. It is clear that by the time the learned Judge fixed the matter for ruling, both the preliminary objection and the replying affidavit filed on behalf of the 3rd, 9th and 10th respondents were not on record. However, in his ruling dated 30th November 2023, the learned Judge stated:“In regard to the NEMA License, it is now clear that the license was issued on 15th June, 2023. The same has been attached as annexure ‘CT -2’ in the replying affidavit filed on behalf of the 3rd, 9th & 10th Defendants. This is a fact which has not been challenged. The Court cannot close its eyes to it. As I noted earlier, the replying affidavit is part of the record of this Court. The import of the issuance of the EIA license by NEMA is that any complaints against the issuance of E.I.A License must first and foremost be lodged with the Tribunal established under EMCA… I note that Preliminary Objections have been filed to challenge the jurisdiction of the Court. Though the Court’s directions were in respect of the application by the Plaintiffs and that of the 1st Defendant, jurisdiction however, is an issue that is central in every case. It need not be raised by any party. The Court on its own motion must, satisfy itself that it has jurisdiction. At the point of determining the Preliminary Objection by the 5th Defendant which the Court dismissed, sufficient evidence had not been availed to support the Preliminary Objection. That situation has since changed. The Court having considered all the materials placed before it and having considered the Plaintiff’s case in its totality is convinced that it lacks jurisdiction to determine the Plaintiff’s case in the first instance.” 44.From the above chronology of events, it is clear that in determining the appellants’ application dated 6th April 2023 and the 1st respondent’s application dated 18th April 2023 as well as the preliminary objection by the 4th, 11th, 12th and 13th respondents dated 17th April 2023, the learned Judge also relied on the replying affidavit filed on behalf of the 3rd, 9th and 10th respondents. There is no evidence that the contents of this affidavit were brought to the attention of the appellants. While it is true that a court of law has the power to take up a jurisdictional point on its own motion, where the point is raised by one of the parties to the proceedings, it is only fair that the other party be afforded an opportunity to be heard on the same, particularly where the same is based on factual allegations, as was the case in this matter. To that extent, we agree with the appellants that they were condemned unheard. 45.On res judicata, it was clear that only the 5th respondent’s preliminary objection was heard and determined. Since the issue in question went to jurisdiction, if facts were disclosed in the course of proceedings that proved that the court had no jurisdiction, it would be a dereliction of duty on the part of the court to ignore those facts and proceed to hear the matter notwithstanding lack of jurisdiction. In other words, a decision made on a preliminary objection where disputed facts are inadmissible and where material facts are not disclosed does not necessarily bar a court from taking up the issue of jurisdiction upon the disclosure of the material facts since an issue of jurisdiction may be raised at any time in the proceedings, although it ought to be raised at the earliest opportunity. We find that the jurisdictional issue was to that extent not res judicata. 46.It is clear from the ruling dated 4th July 2023 that the learned Judge found, as a fact, that at the time of the said ruling and therefore at the time of filing of the suit, no decision had been made by NEMA and the County Physical Planning & Land Use Liaison Committee regarding any applications made by the 1st respondent for licenses or permits. Therefore, at the time the suit was filed, the appellants were within their rights in bringing the suit since, according to the learned Judge, the jurisdiction of the National Environment Tribunal can only be invoked after NEMA and the County Physical Planning & Land Use Liaison Committee render their decisions either way on the applications for licenses and permits. Whether or not that decision was right does not concern us in this appeal. 47.The appellants, as we have stated, approached the trial court complaining that the 1st respondent, which it believed was the proprietor of the suit property, in commencing developments on the suit property without securing licenses and approvals from the relevant authorities, had violated their rights. From the above referred ruling, the trial court found that no such approvals had been issued by the time the appellants filed their proceedings. That decision, however, only concerned the 5th respondent’s preliminary objection. The preliminary objection by the 4th, 11th, 12th and 13th respondents dated 17th April 2023 was heard together with the appellants’ amended application and the 1st respondent’s application. The gist of the 1st respondent’s application was to have the suit against it struck out on the ground that it had no interest in the suit property, while the gist of the preliminary objection was that following the new developments that led to the issuance of the Change of User Approval by the 5th respondent on 1st February 2023 and Permission to Develop Proposed Apartments obtained on 12th April 2023, from the 2nd respondent, it transpired that decisions had since been made by the Nairobi City County, National Construction Authority (NCA) and NEMA Environmental Impact Assessment, in exercise of their respective statutory mandates thus removing the suit from the jurisdiction of the trial court. In other words, the respondents’ position was that the new developments removed the matter from the jurisdiction of the trial court. The trial court, however, did not deal with the fact that at the time the appellants moved the court, the license and approvals had not been issued and that the appellants were within their rights to seek legal redress. The mere fact that it may well turn out that the reliefs sought are not maintainable when the suit is determined does not necessarily mean that the court had no jurisdiction to entertain the suit. As was appreciated by the persuasive opinion of Sir Udo Udoma, CJ in Uganda General Trading Co. Ltd v N T Patel [1965] EA 149:“The objection to the jurisdiction may be due to the tendency to confuse the issue of jurisdiction with the issue of the form of action and procedure. It does not necessarily mean that because the action is not maintainable in law therefore the Court before which the case has been brought would have no jurisdiction to try it. On the other hand, the court may have full jurisdiction over an action and it may yet be held that the action is not maintainable in law... The objection in the instant case is that the action is not maintainable in law because it has not been properly instituted, since the proper form and procedure which ought to originate the proceedings has not been followed. That surely cannot be an objection to the jurisdiction of the court but merely an objection to the form and procedure by which the proceedings have been originated. The mere omission to follow a prescribed procedure in instituting proceedings would not necessarily oust the jurisdiction of the court where there is one as in the instant case. It may be considered incompetent for a court with jurisdiction to exercise such jurisdiction because the matter over which jurisdiction is sought to be exercised has not been brought properly before it in accordance with a prescribed procedure and in a prescribed form. In such a case the jurisdiction of the court is not exercised because it would be incompetent to do so. Incompetency or incapability to exercise jurisdiction already possessed must therefore be distinguished from a complete want of jurisdiction, which may be regarded as a question of incapacity.” 48.In the case before us, the trial court, in its ruling dated 4th July 2023, had found that it had jurisdiction to entertain the matter. Whereas subsequent events could affect the issue of the suit’s maintainability, they, in our view, did not affect the jurisdiction of the court which it had at inception of the suit. 49.As we have stated above, the appellants’ suit was based on violation of or threats of violation of their rights to a clean and safe environment, based on the grounds that the respondents had failed to undertake their statutory mandates to ensure that the developments being carried out on the suit property adhered to the set standards. We are guided by the Supreme Court’s decision in Abidha Nicholus Case, in which it interrogated the circumstances in which the availability of an alternative remedy acts as a bar to litigation and stated that:“The principle, expressed in the above decision, which we agree with, is therefore that, where there is an alternative remedy, especially where Parliament has provided a statutory appeal procedure, then it is only in exceptional circumstances that the court can resort to any other process known to law.” 50.However, in order for a legal provision relied upon to support the doctrine of exhaustion and constitutional avoidance to pass muster, it ought to meet certain tests, namely that the reliefs available in the alternative forums must be available, effective and sufficient. As was observed in the decision of the African Commission of Human and People’s Rights in the case of Dawda K. Jawara v Gambia ACmHPR 147/95-149/96:“A remedy is considered available if the Petitioner can pursue it without impediment, it is deemed effective if it offers a prospect of success and is found sufficient if it is capable of redressing the complaint [in its totality] … the Governments assertion of non-exhaustion of local remedies will therefore be looked at in this light … a remedy is considered available only if the applicant can make use of it in the circumstances of his case.” 51.The Supreme Court in The Abidha Nicholus Case similarly explained that:“[107]Flowing from the above findings and in that context, it is our view that, where the reliefs under the alternative mechanism are not adequate or effective, then there is nothing that precludes the adoption of a nuanced approach, as we have stated. What must matter at the end is that a path is chosen that safeguards a litigant’s right to access justice while also recognizing the efficiency and specificity that established alternative dispute resolution mechanisms can offer. This is because, to achieve a harmonious and effective legal framework, it is imperative to strike a judicious balance between the emphasis on providing the initial opportunity for resolution to entities established by law and the assertion of a litigant’s right to access the court. However, such convergence requires a case-by-case assessment by considering issues such as the nature of the dispute and the adequacy of the alternative dispute mechanism. See also our decision in Bia Tosha Distributors Ltd v Kenya Breweries Ltd & 6 Others (Pet.No.15 of 2020) [2023] KESC 14(KLR) (Const. and JR) (17 February 2023) (Judgment).” 52.According to the Supreme Court in the Abidha Nicholus Case (supra), one of the exceptional circumstances is where the reliefs under the alternative mechanism are not adequate or effective, for example where what is alleged is a violation of the Constitution. The Court expressed itself as hereunder:“Having considered the above complaints, we reiterate our earlier finding in this judgment that the mandate and jurisdiction to determine these questions lie with the ELC under Articles 22, 23(3) and 162(2)(b) of the Constitution as read with Section 4(1) of the Environment and Land Act. We say so because neither the NET, EPRA nor EPT have the jurisdiction to determine alleged violations of the Constitution. That right to access the court for redress of alleged constitutional violations, should not be impeded or stifled in a manner that frustrates the enforcement of fundamental rights and freedoms. We say this persuaded by the elegant reasoning in William Odhiambo Ramogi & 3 others v Attorney General & 6 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR where the High Court (Achode (as she then was), Nyamweya (as she then was), & Ogola, JJ) stated:In the instant case, the Petitioners allege violation of their fundamental rights. Where a suit primarily seeks to enforce fundamental rights and freedoms and it is demonstrated that the claimed constitutional violations arenot mere “bootstraps” or merely framed in Bill of Rights language as a pretext to gain entry to the Court, it is not barred by the doctrine of exhaustion. This is especially so because the enforcement of fundamental rights or freedoms is a question which can only be determined by the High Court.’” 53.In the Abidha Nicholus Case, the Supreme Court appreciated that:“In addressing the conundrum placed before us, we must remind ourselves that, what is in dispute before this Court is the applicability of these provisions to the appellant’s claim and not the true meaning of the provisions of either EMCA or the Energy Act. This is because the provisions of EMCA or the Energy Act do not expressly oust the jurisdiction of the ELC in respect of the procedure for the determination of disputes that involve the management of the environment or issues of petroleum and energy. In the ordinary course of events, the ELC still has original jurisdiction over the matters that are handled by NEMA, unless such jurisdiction is specifically and expressly ousted in a constitutionally compliant manner. The same holds true for proceedings under the Energy Act.” 54.The Supreme Court had identified one of the appellant’s complaints to be that KPLC trespassed on his property, dug holes, and erected electricity poles thereon without notice to him or his authority to do so and proceeded to hold that:“Having considered the above complaints, we reiterate our earlier finding in this judgment that the mandate and jurisdiction to determine these questions lie with the ELC under Articles 22, 23(3) and 162(2)(b) of the Constitution as read with Section 4(1) of the Environment and Land Act. We say so because neither the NET, EPRA nor EPT have the jurisdiction to determine alleged violations of the Constitution. That right to access the court for redress of alleged constitutional violations, should not be impeded or stifled in a manner that frustrates the enforcement of fundamental rights and freedoms.” 55.In the case before the trial court, the appellants claimed that, as a result of the respondents’ actions, their rights to a safe and healthy environment were violated. While we are not prepared to hold that the mere mention of the Constitution or constitutional rights suffices for the purposes of bypassing the dispute resolution mechanisms provided under EMCA, where the resolution of a dispute may, upon reasonable consideration, entail an investigations and determination of the violation of the Constitution, that may well be a ground for invoking the jurisdiction of the court. This is our understanding of the holding in Abidha Nicholus Case 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.” 56.The Supreme Court concluded that:“Earlier in this judgment, we held that there are substantive constitutional violations that have been raised in the petition that have not been answered in the proper forum. Having found that the jurisdiction of the ELC was properly invoked and that the matters in the appellant’s constitutional petition fell within the purview of Article 162(2)(b) and Section 13 of the ELC Act, and to ensure the appellant gets his day in court, we hereby declare that the petition filed before the ELC should be determined on its merits for a determination on the alleged violations of the appellant’s rights inter alia to a healthy and clean environment as well as his right to property for the acts committed by KPLC and whether the acts of NEMA of failing to enforce the stop order created a legitimate expectation that his concerns will be addressed.” 57.In light of the earlier finding by the learned Judge that the trial court had jurisdiction to determine the dispute, the attempts made subsequently to remedy the initial omission could not operate to bar the determination of the appellants’ allegations of the earlier breach. As to whether there were, in fact, violations, the issue will have to be determined by the trial court. We are, however, not persuaded that, in the circumstances of this case, it was proper for the learned Judge to terminate the appellants’ suit merely on the basis that the appellants’ complaints had been addressed subsequent to the filing of the suit. 58.Before us, it was submitted by Mr Mavisi that NEMA can only issue licenses when development plans have been approved. It is therefore important to explain the interface between the applications for development permission and the NEMA license. Section 58(1), (5), (6) and (7) of the Physical and Land Use Planning Act provides as follows:(1)A person shall obtain development permission from the respective county executive committee member by applying for development permission from that county executive committee member in the prescribed form and after paying the prescribed fees.(5)The development permission granted by a county executive committee member shall be subject to compliance with the provisions of any other written law.(6)Where an applicant does not receive written response for development permission within sixty days, such permission shall be assumed to have been given in terms of this Act.(7)A person applying for development permission shall also notify the public of the development project being proposed to be undertaken in a certain area in such a manner as the Cabinet Secretary shall prescribe.(8)The notification referred to under subsection (7), shall invite the members of the public to submit any objections on the proposed development project to the relevant county executive committee member for consideration. 59.Section 58(1), (2), (8) and (9) of the Environmental Management and Conservation Act, on the other hand, provide that:(1)Notwithstanding any approval, permit or license granted under this Act or any other law in force in Kenya, any person, being a proponent of a project, shall before financing, commencing, proceeding with, carrying out, executing or conducting or causing to be financed, commenced, proceeded with, carried out, executed or conducted by another person any undertaking specified in the Second Schedule to this Act, submit a project report to the Authority, in the prescribed form, giving the prescribed information and which shall be accompanied by the prescribed fee.(2)The proponent of any project specified in the Second Schedule shall undertake a full environmental impact assessment study and submit an environmental impact assessment study report to the Authority prior to being issued with any license by the Authority:Provided that the Authority may direct that the proponent forego the submission of the environmental impact assessment study report in certain cases.(8)The Director-General shall respond to the applications for environmental impact assessment license within three months.(9)Any person who upon submitting his application does not receive any communication from the Director-General within the period stipulated under subsection (8) may start his undertaking. 60.It is clear from the foregoing that the NEMA license is necessary notwithstanding the fact that any approval, permit or license may have been granted under EMCA or any other law and this includes the development permission. Therefore, the grant of a development permission does not relieve a party from the obligation to seek and obtain NEMA license. It is important to note that where the County Executive Committee member fails to issue the development permission within 60 days, such permission is assumed to have been given. That however, does not give the applicant the green light to proceed with the development since the NEMA license is still required to be obtained. It is only after that license is either obtained or no response is received from the Director General pursuant to section 58(8) of EMCA that the applicant may, in light of section 58(9) thereof start the undertaking. 61.In the foregoing premises, it is our view that the development permission under PLUPA ought to be obtained before the license under EMCA is sought. 62.As regards the striking out of the 1st respondent, although there were grounds attacking that decision, the issues identified by the appellants in this appeal did not set out that issue as one of the questions to be determined. Nevertheless, from the evidence presented before the trial court, in the absence of contrary evidence, we find no reason to fault the learned Judge for striking out the 1st respondent from the proceedings. It was upon the appellants to place sufficient evidence before the trial court to satisfy the court that the 1st respondent was a proper party to the proceedings. In the absence of such evidence, the proceedings against the 1st respondent may well be vexatious. 63.Having considered this appeal, while we uphold the decision striking out the 1st respondent from the proceedings, we find the appeal merited to the extent that the learned Judge improperly struck out the suit as against the other respondents. We allow the appeal, set aside the decision to that extent and reinstate the same for hearing before a judge of the Environment and Land Court other than D. M. Mwangi, J. 64.As the appeal has only partly succeeded, we make no order as to costs. 65.Judgment accordingly. DATED AND DELIVERED AT NAIROBI THIS 29TH DAY OF MAY 2026.D. K. MUSINGA (PRESIDENT)....................................JUDGE OF APPEAL MUMBI NGUGI....................................JUDGE OF APPEALG. V. ODUNGA....................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR.