Mulwa v Ndunda & 2 others (Environment & Land Case E067 of 2022) [2025] KEELC 1300 (KLR)

The court held that although the ELC has jurisdiction to stay criminal proceedings, the offices conducting the criminal investigations and prosecution were not parties to the civil suit. Since the outcome of the motion would directly affect the criminal case they handle, they had a constitutional right to a fair hearing under Article 50, underpinned by the audi alteram partem rule. The court agreed with the plaintiff that a miscellaneous application joining the ODPP would have been the appropriate vehicle.

The court noted that the law does not bar concurrent civil and criminal proceedings over the same subject matter. Section 193A CPC provides that the fact that a matter in issue in criminal proceedings is also directly or substantially in issue in pending civil proceedings is not a ground for any stay, prohibition or delay of the criminal proceedings. This framework framed the court's assessment of the 1st defendant's stay application.

The court confirmed that its jurisdiction flows from Article 162(2) of the Constitution and Section 13 of the ELC Act, conferring exclusive jurisdiction over all matters relating to environment and land, including use, ownership, tenure, title and occupation. The 1st defendant had argued only this court could determine ownership; the plaintiff countered that the criminal charge was a distinct issue. The court did not reach the merits because of the non-joinder.