One Hundred and Two Peponi Road LLP & another v National Environment Management Authority & 2 others (Civil Appeal E326 of 2021) [2026] KECA 1380 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that a preliminary objection cannot be decided on disputed facts, reviving Peponi Road residents' challenge to a construction licence.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.What the scope of the preliminary objection before the ELC was
- 2.Whether, in considering the demurrer, the ELC could properly reach the decision that the appellants had not exhausted the alternative remedy available to them
Key legal issues
#Scope of the preliminary objection before the ELC
The objection before the ELC concerned only the EMCA/NET remedy; the learned Judge erred in expanding it to cover the Physical Planning Act remedies, which only the County Government (which did not participate) had raised.
The directions of 9th February 2021 concerned the preliminary objections of the 1st and 3rd respondents, which both related to EMCA. The 2nd respondent raised the PPA exhaustion point in grounds of opposition but made no submissions and was absent when directions were given. The court therefore held that the learned Judge erroneously broadened the demurrer, and set aside her findings on the PPA.
Whether a preliminary objection may be decided on contested affidavit evidence
No. Rival affidavit evidence disclosed disputed decisive facts - whether public participation occurred and whether a notice board was erected - including when the appellants became aware of the EIA licence. Such an objection cannot be resolved as a pure point of law.
Applying Mukisa Biscuit, the court held a preliminary objection is a pure point of law argued on assumed facts. Here the affidavits revealed rival positions on facts at the very heart of whether exceptional circumstances existed to bypass the statutory remedy. The ELC made no finding on when the appellants learnt of the EIA licence, and could not have resolved that contested issue on the material before it.
Consequence of late or suppressed notification of the EIA licence on the exhaustion doctrine
If the appellants only learnt of the EIA licence after the 60-day window under section 129(1) EMCA closed, the statutory remedy would be compromised and insisting on it would force them into a legal cul de sac - a matter requiring factual interrogation before the objection could be decided.
The court observed that the parties had proceeded on the assumption that the grievance fell under section 129(1) rather than the 60-day-free subsection 2, and noted authority that section 129(1) time is not extendable. Whether the remedy was effectively unavailable depended on contested facts about notification, which the ELC never resolved, hence the matter was remitted.
Use of a replying affidavit in support of a preliminary objection
Permissible only insofar as the affidavit does not introduce a new objection and only as relevant to the demurrer and uncontroverted facts.
Paragraph 3 of the contested affidavit reproduced word for word the notice of preliminary objection, introducing nothing new. Air View was thus entitled to rely on it, but the objection's fate turned on disputed facts, which could not properly be determined on the demurrer without first interrogating the evidence.
Legal principles established
#- A preliminary objection in the Mukisa Biscuit sense must be a pure point of law and cannot be determined on the basis of contested affidavit evidence; where rival facts are decisive, the court must first interrogate the evidence rather than determine the matter as a preliminary objection.
- A party may rely on a replying affidavit to buttress a preliminary objection only in respect of matters relevant to the demurrer and only as regards uncontroverted facts.
- A superior court cannot expand the scope of a preliminary objection beyond what was actually raised and canvassed by the parties before it.
- Where the conduct of the licence-granting authority deprived a party of notice of a decision within the statutory appeal window, insisting on that remedy would force the party into a legal cul de sac - a relevant consideration on exhaustion.
Court orders
#- 1.Appeal allowed
- 2.Ruling and Order of the ELC delivered on 15th April 2021 set aside
- 3.Matter remitted to the ELC before a judge other than Komingoi, J.
- 4.Costs of the appeal and of the preliminary objection before the ELC awarded to the appellants against the 3rd respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Nairobi
- ELC Judicial Review Application No. E014 of 2020
- Jurisdiction invoked
- First appellate jurisdiction over appeals from the Environment and Land Court (Article 164 of the Constitution; Environment and Land Court Act)
Relief refused
#Determination of the second issue (whether the ELC could properly find non-exhaustion of the alternative remedy)
The court declined to answer it because the preliminary objection could not be determined on contested material; the objection may be re-determined by the ELC after interrogating evidence
Costs
Costs of this appeal and costs of the preliminary objection before the ELC shall be to the appellants against the 3rd respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly, we find that the appeal is for allowing. We set aside the Ruling and Order of the ELC delivered on 15th April 2021. The matter is remitted to the ELC before a judge other than Komingoi, J.
Costs of this appeal and costs of the preliminary objection before the ELC shall be to the appellants against the 3rd respondent.
So far as I am aware, a preliminary objection consists of a pure 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.
The superior court below could not determine the preliminary objection on the basis of the contested material before it.
The ELC may still determine the objection raised in the notice of preliminary objection, not as a preliminary objection, but upon first interrogating the evidence that can help it resolve the contested matters.
The dispute resolution mechanism would no longer be available to them, and to insist that they pursue it would be to force them into a legal cul de sac.
Issues in the judgment
#The judgment does not state the appeal number or neutral citation of the appeal before the Court of Appeal; the caseNumber field is based on the underlying ELC proceedings.
The court describes the appeal as concerning a ruling that struck out the entire proceedings, while the appellants' compressed ground refers to the ELC 'dismissing' the judicial review application; the ruling in fact struck out the proceedings.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "One Hundred and Two Peponi Road LLP & another v National Environment Management Authority & 2 others (Civil Appeal E326 of 2021) [2026] KECA 1380 (KLR)", Case Analysis (2026). Court of Appeal Appeal (not explicitly numbered in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1380/eng@2026-07-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.