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ELCOtherPetition (Kakamega) with Notice of Motion dated 13th April 2026

Ludeshi (Suing as Chair of Isulu Natural resource Deposits (CBC) on behalf of the Community members of Isulu and Bushiangala Regions, Kakamega South Sub-County, Kakamega County) v Shanta Gold Ltd & 8 others (Environment and Land Petition E002 of 2026) [2026] KEELC 3634 (KLR)

Environment and Land Court
4 June 2026
1,383 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kakamega court paused a community challenge to Shanta Gold's mining project because an earlier, nearly identical case was already pending in Milimani.

What this practically means

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Executive summary

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The 1st and 2nd respondents filed a Notice of Motion dated 13th April 2026 seeking striking out of the petitioners' petition and notice of motion dated 27th January 2026 for abuse of the court process, on the ground that the petition is sub judice given the pending Milimani ELC Petition No. E047 OF 2025 (Isulu Natural Resources Community v Shanta Gold Ltd & Others), which was scheduled for hearing on 21st April 2026. The applicants contended the two petitions raise identical issues: open pit gold mining in Isulu and Bushiangala, forced eviction, threats to the right to a clean and healthy environment, lack of stakeholder engagement and licensing concerns. The petitioners, through a replying affidavit sworn by Bernard Amukaka Ludeshi, acknowledged the Milimani petition's pendency but maintained the parties and reliefs differ, that the respondents had acceded to the court's jurisdiction by filing responses, that they intended to withdraw the Milimani petition, and that consolidation rather than striking out would be the proper remedy. Considering Section 6 of the Civil Procedure Act, the court found the parties substantially the same - the addition of the National Land Commission and the Kakamega County Police Commander being immaterial - and the issues directly and substantially identical. The petitioners' unexecuted intention to withdraw the Milimani petition carried no legal import, so that petition remained pending. The court held the instant petition sub judice, stayed these proceedings pending determination of the Milimani petition, and vacated suo moto all interim orders previously issued in this petition. The application to strike out was not granted in terms; a stay was imposed instead.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether this suit is sub judice, in view of the pendency of Milimani ELC Petition No. E047 OF 2025; Isulu Natural Resources Community v Shanta Gold Ltd & Others

Key legal issues

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01

Whether the instant petition is sub judice under Section 6 of the Civil Procedure Act

Holding

The petition is sub judice and the proceedings are stayed pending determination of the Milimani petition

Reasoning

The parties in the Milimani petition are substantially the same, with additions of parties in the instant petition being immaterial as the main disputants remain the same. The issues in both petitions - open pit gold mining in Isulu and Bushangala, environmental rights, public participation, licensing and forced eviction - are directly and substantially the same. The Milimani petition was filed earlier and is before a competent court. The petitioners' stated intention to withdraw it was not executed, so it remains pending.

p. 9
02

Whether the petition should be struck out for abuse of process or merely stayed

Holding

A stay, not striking out, is the appropriate remedy

Reasoning

Because the Milimani petition remains pending, the court cannot proceed with the instant petition; the only order available is a stay of proceedings. The court did not strike out the petition for abuse of process. Further, since the petitioners filed two suits on the same subject matter, the court vacated all interim orders issued in this petition suo moto.

p. 9

Legal principles established

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  • Where there is a pending previously instituted suit in a competent court raising substantially similar issues, the court is barred from proceeding with a subsequent suit by the same parties in respect of similar issues
  • An unexecuted intention to withdraw a pending suit has no legal effect; until withdrawal is granted by order, the suit remains pending and sub judice applies

Court orders

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  1. 1.The instant petition is stayed pending the hearing and determination of Milimani ELC PET No. E047 OF 2025
  2. 2.All interim orders issued in this petition are vacated by the court suo moto

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; Section 6 of the Civil Procedure Act (sub judice) invoked

Relief refused

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Striking out of the petition and the petitioners' notice of motion dated 27th January 2026 for abuse of court process

The court found the petition sub judice and stayed it rather than striking it out; the only order available was a stay

p. 8

Costs

No costs order made in the judgment

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

This suit is therefore stayed pending the hearing and determination of Milimani ELC PET No. E047 OF 2025.
p. 9final orders - stay of proceedings
all interim orders issued in this petition are hereby vacated by this court suo moto
p. 9vacatur of interim orders
Intention, however good, until executed cannot carry any import in law.
p. 8effect of unexecuted intention to withdraw a suit
Therefore, the addition of parties in the instant petition is immaterial as the main disputants remain the same.
p. 6same parties for sub judice purposes

Issues in the judgment

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minor

The petitioners' identity is inconsistently stated - the supporting material refers to 'Isulu Natural Resources Deposits (CBO)' as the Milimani petitioner while the present petitioners are described as 'Isulu Natural Resources Community'

minor

Spelling of the petitioner's representative's name varies between 'Bernard' and 'Benard' Amukaka Ludeshi

minor

The case title of the second respondent is not given anywhere in the judgment; only the 1st respondent (Shanta Gold Ltd) is named

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ludeshi (Suing as Chair of Isulu Natural resource Deposits (CBC) on behalf of the Community members of Isulu and Bushiangala Regions, Kakamega South Sub-County, Kakamega County) v Shanta Gold Ltd & 8 others (Environment and Land Petition E002 of 2026) [2026] KEELC 3634 (KLR)", Case Analysis (2026). Petition (Kakamega) with Notice of Motion dated 13th April 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3634/eng@2026-06-04

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.