John Oduor Odongo & 25 Others v Eugenio Mutua Kirima

development of four residential units on Land Reference No. 12715/4779. 2. Simultaneously with the Plaint, the Plaintiffs filed a Notice of Motion dated 21st May, 2026. The Application is brought under Articles 40 and 159 of the Constitution, Order 1 Rule 8 and Order 40 Rules 1 and 2 of the Civil Procedure Rules, Sections 3 and 3A of the Civil Procedure Act and all enabling provisions of the law. It seeks the following orders: i. Spent. ii. THAT the Plaintiffs be and are hereby granted leave to proceed with this suit on their own behalf and in a representative capacity for all residents and owners of property in Chief’s Court, Syokimau. iii. Spent. iv. THAT pending the determination of this suit a temporary injunction do issue restraining the defendant whether by himself or by his servants or agents or any of them or otherwise ELCLEPCC E006 OF 2026 RULING 2

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from proceeding with construction upon the property known as PLOT NO 12715/4779 SYOKIMAU, MAVOKO SUB COUNTY, MACHAKOS, until the defendant obeys all the Planning and Building regulations. v. THAT the Defendant be compelled to comply with building regulations within Chief’s Court, Syokimau, which allows only one dwelling unit in an eighth of an acre. vi. THAT the costs of this Application be borne by the Defendant. The Plaintiffs' Case. 3. The Application is premised on the grounds set out on its face and the Supporting Affidavit sworn by the 2nd Plaintiff, Gonzaga Nalugala Ogallo, on 21st May, 2026. The Plaintiffs are homeowners within Chiefs Court, Syokimau, and committee members of a proposed residents' association. They seek leave to prosecute the proceedings in a representative capacity on behalf of all residents and ELCLEPCC E006 OF 2026 RULING 3

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property owners within Chiefs Court. Their grievance concerns the Defendant's proposed development of four residential units on L.R. No. 12715/4779. 4. The Plaintiffs state that the Defendant obtained approval for change of user on 21st August 2024 under application No. MVK/4133/7/24 without proper public participation. They contend that a subsequent public participation meeting scheduled for 7th March 2026 at the site did not proceed owing to the absence of the Defendant and the environmental impact assessment expert, who neither attended nor issued any postponement notice. They further contend that the proposed development contravenes the applicable zoning requirements, which, according to them, permit only one dwelling unit on an eighth of an acre. 5. The Plaintiffs are concerned about the capacity of the area to accommodate the proposed development. They state that Syokimau is not served by a sewer line and that the area has an impermeable ELCLEPCC E006 OF 2026 RULING rock stratum with poor water 4

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percolation capacity. They contend that the proposed occupation by four families on an eighth of an acre will create difficulties in the management of wastewater and drainage. They also invite the Court to take judicial notice of flooding experienced in Syokimau during April and May 2026. In their view, the development presents risks to hygiene, health and the environment within the neighbourhood and may encourage similar developments. 6. The Plaintiffs state that they became aware of the change of user in March 2026 and contend that the approval was obtained without following the procedures prescribed under the Physical and Land Use Planning Act, 2019, including adequate engagement with the affected residents and neighbourhood. They state that they raised their concerns with the relevant authorities by a letter dated 9 th March 2026. They further state that they requested the County Director of NEMA not to issue an environmental licence for the proposed construction, following an earlier rejection on ELCLEPCC E006 OF 2026 RULING 5

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8th November 2024. They also refer to an attempted mediation through the Syokimau Residents' Association. 7. The Plaintiffs further contend that the proposed construction does not comply environmental with the requirements. applicable They building maintain that and the Defendant intends to proceed with the development despite their objections and repeated requests that he desist. 8. According to the Plaintiffs, the proposed construction threatens their use and enjoyment of their properties and is likely to occasion loss and damage. They state that their engagements with the Defendant did not resolve the dispute and that the Defendant allegedly threatened one of them, resulting in a police complaint. The Defendant's Case 9. In opposition, the Defendant swore a Replying Affidavit on 15th July, 2026. The Defendant asserts that he is the registered proprietor of L.R. No. 12715/4779 and has ELCLEPCC E006 OF 2026 RULING 6

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exhibited the title documents in support of his ownership. He maintains that he obtained the requisite approvals for the proposed development, including change of user approval granted on 21st August 2024 and an environmental licence issued by NEMA on 18th March 2026. 10. The Defendant contends that the Plaintiffs are unjustifiably interfering with his right to develop his property. He maintains that the relevant Government procedures were followed in obtaining the approvals and that no Government agency has stopped, cancelled or revoked them. 11. The Defendant states that challenges to the approvals ought to be directed to the appropriate Government authorities. He maintains that there is no pending complaint concerning the development before NEMA, the County Government or the relevant physical planning office. 12. The Defendant disputes the environmental risks alleged by the Plaintiffs. He states that there are similar or larger ELCLEPCC E006 OF 2026 RULING 7

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developments within the neighbourhood and that the proposed development will not create the flooding, sewage or drainage problems alleged. He maintains that matters relating to sewage, drainage and occupancy are regulated by the relevant Government authorities. He further states that his development does not encroach upon any other person's property and that there is no boundary dispute. 13. The Defendant also disputes the Plaintiffs' authority to represent all residents of Chiefs Court. He states that the Plaintiffs do not constitute all residents of the estate and that some residents have no objection to the proposed development and had signed documents relating to the applications for change of user and development approval. 14. The Defendant maintains that the County physical planning and land use officers have not revoked the approvals because they were procedurally obtained. He contends that matters concerning environmental degradation and land use fall within the mandate of NEMA, the County Government ELCLEPCC E006 OF 2026 RULING 8

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and the County Physical and Land Use Planning Liaison Committee. 15. The Defendant further states that the Application was served upon his advocates on 15th July 2026 and expresses the view that the delay in service was intended to secure an adjournment and prolong the interim orders. He consequently asks that the interim orders be discharged. 16. In the alternative, should the Court be inclined to grant injunctive relief, the Defendant asks that the Plaintiffs be required to furnish security equivalent to the bill of quantities for the proposed development. 17. On 21st July, 2026, the Court directed that the Application be canvassed by way of written submissions. Both parties filed written submissions through their respective law firms, M/S James T. Makori Advocate for the Plaintiffs dated 28th July, 2026 and M/S J. A. Makau & Co. Advocates for the ELCLEPCC E006 OF 2026 RULING 9

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Defendant filed on 24th August, 2026, which the Court has considered. Parties' Submissions 18. The Plaintiffs submit that the change of user approval was obtained without proper public participation or a letter of no objection from the residents’ association. They further contend that the proposed development contravenes the applicable zoning requirements and that its environmental effects, particularly wastewater disposal, flooding and pressure on available amenities, were not adequately assessed. 19. On jurisdiction, the Plaintiffs rely on Articles 42, 70 and 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act. Citing Nicholus v Attorney General & 13 others [2023] KESC 113 (KLR) and Ken Kasinga v Daniel Kiplagat Kirui & 5 others [2015] eKLR, they submit that their grievances extend beyond a challenge to administrative approvals and concern threatened violations of the right to a clean and healthy ELCLEPCC E006 OF 2026 RULING 10

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environment. They therefore contend that the statutory appeal mechanisms do not preclude this Court from entertaining the suit. 20. The Plaintiffs further invoke the precautionary principle, submitting that the Court should intervene before the anticipated Aggrey environmental Ogutu v harm Daniel occurs. Kamau They Mwangi, rely on County Government of Kajiado & another [2016] KEELC 498 (KLR) in support of injunctive relief against unlawful development. They argue that the threatened environmental and health consequences cannot adequately be compensated by damages and that allowing construction to proceed would render any eventual favourable judgment ineffectual. 21. Relying on Stanley Kangethe Kinyanjui v Tony Ketter & 5 others [2013] eKLR and Board of Management of Uhuru Secondary School v City County Director of Education & 2 others, the Plaintiffs submit that preservation of the subject matter and the public interest ELCLEPCC E006 OF 2026 RULING 11

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favour the grant of protective orders. They urge the Court to allow the Application, contending that the Defendant would suffer no irreparable prejudice by awaiting determination of the legality of the development. 22. The Defendant submits that the Plaintiffs have not satisfied the conditions for an interlocutory injunction. Relying on Giella v Cassman Brown & Co. Ltd [1973] EA 358, Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] eKLR and Nguruman Ltd v Nielsen & 2 others [2014] KECA 606 (KLR), he argues that the Plaintiffs have not demonstrated an infringed right or established any illegality in the approvals obtained for the development. 23. The Defendant further submits that the alleged environmental harm is speculative and unsupported by an expert report demonstrating that the development is unsafe or contrary to planning requirements. He relies on Nguruman Ltd v Nielsen & 2 others (supra) and ELCLEPCC E006 OF 2026 RULING 12

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Kenleb Cons Ltd v New Gatitu Service Station Ltd & another [1990] KEHC 53 (KLR), arguing that apprehension alone does not establish irreparable injury. Citing Suleiman v Amboseli Resort Ltd [2004] eKLR, he contends that the balance of convenience favours allowing the development to proceed, given the approvals obtained and the investment already made. 24. On the legality of the approvals, the Defendant relies on Sections 57 and 61 of the Physical and Land Use Planning Act and maintains that he complied with the prescribed procedures. He submits that the approvals remain valid and have neither been revoked nor set aside. He further invokes Articles 40 and 47 of the Constitution and Municipal Council of Mombasa v Republic; Umoja Consultants Ltd (Interested Party) [2002] KECA 8, maintaining that no procedural impropriety has been established ELCLEPCC E006 OF 2026 RULING 13

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25. The Defendant also submits that the Plaintiffs ought to have exhausted the appeal procedure under Section 61(3) and (4) of the Physical and Land Use Planning Act by first approaching the County Physical and Land Use Planning Liaison Committee. Relying on Speaker of the National Assembly v Karume [1992] KECA 42 (KLR), he contends that the suit is premature. He accordingly urges the Court to dismiss the Application, discharge the interim orders and award him costs under Section 27 of the Civil Procedure Act. ISSUES FOR DETERMINATION 26. Having considered the pleadings, affidavits, submissions and authorities, the following issues arise for determination: a) Whether this court has jurisdiction to entertain the suit. b) Whether the Plaintiffs should be granted leave to proceed in a representative capacity. c) Whether the Plaintiffs conditions for the grant have of an satisfied the interlocutory injunction. ELCLEPCC E006 OF 2026 RULING 14

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d) What orders should issue, including on costs. ANALYSIS AND DETERMINATION Whether this court has jurisdiction to entertain the suit. 27. While the Respondent’s submissions focus on the conditions for granting an interlocutory injunction under Giella v Cassman Brown & Co. Ltd [1973] EA 358, the Court notes that, at page 4, the Respondent also raises the issue of jurisdiction. Specifically, the Respondent argues that the Applicants filed this suit without first exhausting the alternative dispute resolution mechanisms provided under the Physical and Land Use Planning Act, Cap 303 Laws of Kenya ("PLUPA"). 28. The Respondent submits that Section 61(3) of PLUPA provides that an applicant or an interested party aggrieved by the decision of a county executive committee member regarding an application for development permission may appeal to the County Physical and Land Use Planning Liaison Committee within fourteen days. Thereafter, under Section ELCLEPCC E006 OF 2026 RULING 15

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61(4), a further appeal lies to this Court. Relying on the Court of Appeal decision in Speaker of the National Assembly v Karume [1992] KECA 42 (KLR), the Respondent argues that where the Constitution or an Act of Parliament prescribes a clear procedure for redress of any particular grievance, that procedure should be strictly followed. 29. The objection raised by the Respondent goes to the jurisdiction of this Court to entertain the suit in the first place. It is therefore necessary to determine that question before considering the merits of the Application. The question of jurisdiction is fundamental and, once raised, must be determined in limine. It may be raised at any stage of the proceedings, by a party or by the Court on its own motion. Where a Court finds that it lacks jurisdiction, it must down its tools. These are the famous words of the late Nyarangi JA. in the Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Limited [1989] 1 KLR: ELCLEPCC E006 OF 2026 RULING 16

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“I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no need for a continuation of the proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.” 30. Still discussing the significance of the question of jurisdiction of court or tribunal, the late Nyarangi JA (as he then was) summed up the statement of principle as follows: “It is for that reason that a question of jurisdiction once raised by a party or by a court on its own motion ELCLEPCC E006 OF 2026 RULING must be decided forthwith on the 17

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evidence before the court. It is immaterial whether the evidence is scanty or limited. Scanty or limited facts constitute the evidence before the court. A party who fails to question the jurisdiction of a court may not be heard to raise the issue after the matter no grounds is heard and a question of raised during the determined. I can see jurisdiction could not why be proceedings. As soon as that is done, the court should hear and dispose of that issue without further ado.” 31. In its salutary judgment in Macharia & another v Kenya Commercial Bank Ltd & 2 others [2012] KESC 8 (KLR), the Supreme Court expressed itself as follows on the important question of jurisdiction: “A court’s jurisdiction flows from the either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the ELCLEPCC E006 OF 2026 RULING 18

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Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is Doctrine of conferred upon it by law.” The Court’s Jurisdiction and the Exhaustion 32. The jurisdiction of this Court is derived from Article 162 (2) (b) of the Constitution which provides as follows: “Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to— (b) the environment and the use and occupation of, and title to, land.” 33. The constitutional jurisdiction is given effect to by the Environment and Land Court Act. Section 13(1) and (2) thereof provide: “(1) The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2)(b) of the Constitution and with the provisions of this Act or ELCLEPCC E006 OF 2026 RULING 19

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any other law applicable in Kenya relating to environment and land. (2) In exercise of its jurisdiction under Article 162(2)(b) of the Constitution, the Court shall have power to hear and determine disputes— (a) relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources; (b) relating to compulsory acquisition of land; (c) relating to land administration and management; (d) relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and (e) any other dispute relating to environment and land.” ELCLEPCC E006 OF 2026 RULING 20

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34. Evidently, this Court has jurisdiction under Article 162(2)(b) of the Constitution and section 13 of the Environment and Land Court Act to determine disputes relating to the environment and the use and occupation of, and title to, land, including matters concerning land use planning. However, where the law provides a mechanism for resolution of a particular dispute before the jurisdiction of the Court is invoked, that procedure must be followed. In the present case, the Respondent contends that the Plaintiffs approached this Court before exhausting the mechanism provided under PLUPA. It is therefore necessary to determine whether the dispute falls within that mechanism and, if so, whether the Plaintiffs were required to exhaust it before seeking the Court’s intervention. The Supreme Court in Waity v Independent Electoral and Boundaries Commission & 3 others [2019] KESC 54 (KLR) expressed itself on the doctrine as follows: “Where the Constitution or the law, consciously confers jurisdiction to resolve a dispute, on an organ other than ELCLEPCC E006 OF 2026 RULING 21

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a court of law, it is imperative that such dispute resolution mechanism, be exhausted before approaching the latter. Were it not so, parties would bide their time, overlooking the recognized forums, and later springing a complaint at the courts. Such a scenario would be a clear recipe for forum shopping, an undertaking that must never be allowed to fester in the administration of justice. We are fortified in this regard, by the persuasive authority by the Court of Appeal, in Geoffrey Muthinja Kabiru & 2 others; [2015] eKLR; wherein the Appellate Court observed: “It is imperative that where a dispute resolution mechanism exists outside the Courts, the same be exhausted before the jurisdiction of the Courts be invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews…The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the ELCLEPCC E006 OF 2026 RULING 22

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protection of his own interest within the mechanisms in place for resolution outside the courts.” 35. This principle was further affirmed by the Supreme Court in Nicholus v Attorney General & 13 others [2023] KESC 113 (KLR), in the following terms: “94. 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.” The Nature of the Plaintiffs’ Claim 36. To determine whether the doctrine of exhaustion applies, this Court must look at the substance of the Plaintiffs’ claim as pleaded in the Plaint dated 21 st May 2026. The Plaintiffs, who describe themselves as residents and householders within Chief’s Court, Syokimau, seek the following reliefs: ELCLEPCC E006 OF 2026 RULING 23

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a) A permanent injunction to restrain the defendant whether by himself or by his servants or agents or any of them or otherwise dealing with the property known as PIOT NUMBER LR 12715/4779 in the illegal manner that is causing inconvenience and loss and harm to the Plaintiff/ b) An order for the payment of damages for the losses and harm suffered by the plaintiff. c) Such other or further relief that this honourable court may deem fit and just to grant. d) Costs of the suit. 37. The core of the Plaintiffs’ complaint, as outlined in paragraphs 5 to 12 of the Plaint, is that the Defendant obtained change of user and development approvals from the County Government of Machakos without following proper procedures, particularly by not consulting local residents and the neighborhood. The Plaintiffs also allege that the proposed development will strain existing amenities, create wastewater management issues, and ELCLEPCC E006 OF 2026 RULING 24

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result in hygiene and health risks within the court environment. 38. The Plaintiffs are therefore challenging the legality and procedural propriety of the County Executive Committee Member’s decision to grant change of user and development permission. Their complaint focuses on the administrative process that led to the approval of the proposed development. 39. The question that therefore arises is whether, in respect of the decision challenged by the Plaintiffs, the statutory framework provides an available forum through which their grievances should first be addressed before invoking this Court’s the jurisdiction. 40. In my view, that forum is provided for under section 61(3) of PLUPA, which prescribes the procedure for challenging the decision of a county executive committee member on an ELCLEPCC E006 OF 2026 RULING 25

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application for development permission. Section 61 (3) provides: “An applicant or an interested party that is aggrieved by the decision of a county executive committee member regarding an application for development permission may appeal against that decision to the County Physical and Land Use Planning Liaison Committee within fourteen days of the decision by the county executive committee member and that committee shall hear and determine the appeal within fourteen days of the appeal being filed.” 41. Section 61(4) of the Act further provides: “An applicant or an interested party who files an appeal under sub-section (3) and who is aggrieved by the decision of the committee may appeal against that decision to the Environment and Land Court.” ELCLEPCC E006 OF 2026 RULING 26

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42. Section 78 of the Act sets out the functions of the County Liaison Committee as follows: (a) hear and determine complaints and claims made in respect to applications submitted to the planning authority in the county; (b) hear appeals against decisions made by the planning authority with respect to physical and land use development plans in the county; (c) advise the County Executive Committee Member on broad physical and land use planning policies, strategies and standards; and (d) 43. hear appeals with respect to enforcement notices. The statutory framework does not stop at providing for an appeal to the County Physical and Land Use Planning Liaison Committee. Section 80 of PLUPA sets out the procedure to be followed before the Committee and the manner in which its determination is dealt with by this Court. Section 80 provides: ELCLEPCC E006 OF 2026 RULING 27

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“80. Appeal to a County Physical and Land Use Planning Liaison Committee (1) A person who appeals to County Physical and Land Use Planning Liaison Committee shall do so in writing in the prescribed form. (2) A County Physical and Land Use Planning Liaison Committee shall hear and determine an appeal within thirty days of the appeal being filed and shall inform the appellant of the decision within fourteen days of making the determination. (3) The Chairperson of a County Physical and Land Use Planning Liaison Committee shall cause the determination of the committee to be filed in the Environment and Land Court and the court shall record the determination of the committee as a judgment of the court and published in the Gazette or in at least one newspaper of national circulation.” 44. The same framework is further provided for in Regulation 12 of the Physical and Land Use Planning (Local Physical and Land ELCLEPCC E006 OF 2026 RULING Use Development Plan) Regulations. The 28

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Regulation provides for an appeal by a person aggrieved by the decision of the County Executive Committee Member to the County Physical and Land Use Planning Liaison Committee and, thereafter, an appeal to this Court against the decision of the Liaison Committee. Regulation 12 provides: (1) A person aggrieved by a decision of the County Executive Committee Member concerning the local physical and land use development plan may, within sixty days of being notified of the decision, appeal to the County Physical and Land use Liaison Committee in writing against the decision in Form PLUPA L-3 as set out in the First Schedule. (2) Representations made by the County Executive Committee Member in response to an appeal lodged before the County Physical and Land use Liaison Committee shall be in writing. (3) The Liaison Committee shall consider the appeal within thirty days and may set aside, confirm or vary the decision appealed against and make such order ELCLEPCC E006 OF 2026 RULING 29

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as it deems necessary or expedient to give effect to its decision and communicate the decision to the appellant within fourteen days. (4) In exercising its power to set aside, confirm or vary the decision appealed against, the County Physical and Land use Liaison Committee shall do so in accordance with the rules of natural justice and fair administrative action. (5) A person dissatisfied with the decision of the County Physical and Land use Liaison Committee may lodge an appeal to the Environmental and Land Court within a period of thirty days from the date of the making of the decision by the Liaison Committee.” Emphasis added. 45. In this case, the Plaintiffs, as residents of Chiefs Court, Syokimau, qualify as interested parties under section 61(3) of PLUPA. They were entitled to appeal the County Executive Committee Member’s decision to grant change of user and ELCLEPCC E006 OF 2026 RULING 30

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development permission before the County Physical and Land Use Planning Liaison Committee, which Parliament established to address such grievances. 46. This position is consistent with the decision of the Court of Appeal Mutanga Tea & Coffee Company Limited v Shikara Limited & another [2015] KECA 469 (KLR) where the Court considered the position of an adjoining property owner challenging development approvals. The Court stated: “In our reading of section 41(3) of the PPA against the other provisions of the Act, a person who is supposed to be served with a copy of the application for change of user or for development and is not so served is an aggrieved party within the meaning of the Act and is entitled to resort to the dispute resolution mechanism provided under the Act to agitate his grievance. He is not entitled to ignore the provisions of the Act and invoke the original jurisdiction of the High Court.” ELCLEPCC E006 OF 2026 RULING 31

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47. The same principle is reflected in Siklieh (Suing as the Chairman of Karen Langata District Association) v Karuna Holdings Limited & 6 others [2026] KEELC 324 (KLR) where the Court observed: “The doctrine of exhaustion of remedies is designed to allow administrative bodies to correct errors and avoid unnecessary litigation. Its applicability requires that alternative remedies be available, effective, and sufficient…” 48. In this case, the Plaintiffs have not demonstrated that they filed an appeal with the County Physical and Land Use Planning Liaison Committee and that the same was either not determined within the statutory timelines or was determined in a manner warranting the intervention of this Court. Instead, they have approached this Court directly, effectively asking it to sit on appeal over a decision of the County Executive Committee Member in the first instance. ELCLEPCC E006 OF 2026 RULING 32

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49. The Plaintiffs’ contention that the physical planning process did not comply with the law is itself a grievance falling within the statutory dispute resolution mechanism. The County Physical and Land Use Planning Liaison Committee is the forum established under PLUPA to consider such complaints in the first instance. The Plaintiffs have not shown any reason why that procedure could not be pursued in the circumstances of this case. 50. In relation to the environmental licence, the Plaintiffs ought to have invoked the mechanism provided under section 129(1)(a) of the Environmental Management and Coordination Act, which permits a person aggrieved by the grant of a licence or permit to appeal to the National Environment Tribunal within sixty days. The Tribunal is empowered under section 129(3) to confirm, set aside or vary the decision under challenge and to make such other orders as may be necessary. Similarly, the Plaintiffs did not demonstrate that they invoked that statutory mechanism before approaching this Court. ELCLEPCC E006 OF 2026 RULING 33

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The Constitutional issues raised 51. In their submissions, the Plaintiffs/Applicants have raised constitutional issues, particularly under Articles 42, 69, and 70 of the Constitution regarding the right to a clean and healthy environment. They argue that these constitutional issues remove their claim from the ambit of the County Physical and Land Use Planning Liaison Committee and place it squarely within the jurisdiction of this Court. 52. This Court acknowledges that the Supreme Court in Nicholus v Attorney General & 13 others (supra), held that neither the National Environment Tribunal (NET) nor other specialized tribunals have the jurisdiction to determine alleged violations of the Constitution. The right to access the court for redress of alleged constitutional violations is expressly provided for under Article 70 of the Constitution. 53. However, a careful examination of the Plaint reveals that the constitutional issues raised in the submissions are not ELCLEPCC E006 OF 2026 RULING 34

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pleaded. The Plaint does not contain a single paragraph invoking Articles 42, 69, or 70 of the Constitution. The constitutional arguments are raised for the first time in the written submissions as a means of circumventing the exhaustion doctrine. 54. It is a well-established principle of pleadings that parties are bound by their pleadings, and only issues arising from those pleadings may be determined by the court. A party may not introduce a new cause of action or legal basis through submissions. The Plaintiffs' claim challenges the procedural propriety of the development approvals granted to the Defendant. This is a land use planning dispute governed by the statutory framework under PLUPA. 55. Although the Plaintiffs now frame their complaint as relating to the right to a clean and healthy environment, this does not change the substance of the dispute before the Court. While the complaint Constitution concerns the protects this legality or right, when procedure of the a development approval, the constitutional nature of the right ELCLEPCC E006 OF 2026 RULING 35

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does not override the statutory process for challenging such decisions. 56. The Court of Appeal in Eaton Towers Kenya Limited v Kasing’a & 5 others [2022] KECA 645 (KLR) considered a similar situation. The Court stated: " From our reading of the petition, we concur with the appellant that the heart of it was a challenge on procedural issues. A look at the prayers sought in the said petition which included; the suspension of all the licences and approvals issued to the appellant is telltale sign as to what the petition was primarily about. We find that the 1st respondent creatively couched his complaints as a constitutional petition, when he could easily have lodged them with the tribunal on the issuance of the EIA licence and to the committee concerning the development approval. This Court has made numerous pronouncements on this issue. It stated in Gabriel Mutava & 2 Others -vs- Managing Director Kenya Ports Authority & Another ELCLEPCC E006 OF 2026 RULING [2016] 36

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eKLR;“In saying all these, we are not oblivious to the fact that a party is entitled to sue under the Constitution even if there is an alternative remedy, and or other mechanism for the resolution of the dispute. However, it has since emerged on the authorities that constitutional litigation is a serious matter that should not be sacrificed on the altar of all manner of frivolous litigation christened constitutional when they are not and would otherwise be adequately handled in other legally constituted forums. Constitutional Litigation is not a panacea for all manner of litigation, we reiterate that the first port of call should always be suitable statutory underpinned forums for the resolution of such disputes.” (Emphasis added)”. 57. The Plaintiffs' concerns regarding user approval changes and development permission fall under section 78(a) of PLUPA, which assigns these matters to the Liaison Committee. Referring to Articles 42 and 70 does not change ELCLEPCC E006 OF 2026 RULING 37

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the core issue, which remains a challenge to the lawfulness of the planning approvals. 58. It follows that the constitutional provisions relied upon by the Plaintiffs do not provide a basis for bypassing the statutory mechanism under PLUPA. The dispute, as pleaded, concerns the validity of planning approvals and falls within the jurisdiction of the County Physical and Land Use Planning Liaison Committee. The Plaintiffs were therefore required to pursue that remedy before invoking the jurisdiction of this Court. 59. The Plaintiffs have not demonstrated that they invoked the jurisdiction of the County Physical and Land Use Planning Liaison Committee, or that the statutory mechanism was unavailable or incapable of providing an effective remedy. Having approached this Court directly without first pursuing the procedure prescribed under PLUPA, the Plaintiffs have not satisfied the requirement to exhaust the available statutory remedy. ELCLEPCC E006 OF 2026 RULING 38

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60. In the circumstances, the Plaintiffs approached this Court before exhausting the statutory mechanisms provided under PLUPA and EMCA. The suit is therefore premature. 61. Accordingly, the Notice of Motion dated 21 st May, 2026 and the entire suit are struck out. Each party shall bear its own costs. The interim orders issued are hereby discharged. 62. The Plaintiffs/Applicants shall bear the costs of this Application and the suit. 63. This file is hereby marked as closed. It is so ordered. Delivered and Dated at Machakos this 1ST day of October, 2026. HON. J. N. KUYIONI JUDGE ELCLEPCC E006 OF 2026 RULING 39

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01.10.2026 Ruling delivered virtually through Microsoft Teams Video Conferencing Platform In the presence of; Court Assistant - Fabious. Mr. Onderi holding brief for Mr. Makori for the Plaintiffs. Ms. Khadesi holding brief for Mutua Makau for the Defendant /Respondent. ELCLEPCC E006 OF 2026 RULING 40

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