Introduction
1. Before court is a Notice of Motion dated 25th May 2026 filed under Certificate of Urgency by the petitioners/applicants seeking the following orders:
a. Spent
b. THAT pending the inter partes hearing of this application, this Honorable Court be pleased to issue interim conservatory orders in terms of prayers 3, 4, 5, 6, 7, 8 and 9 herein.
c. THAT pending the inter partes hearing of this Application, this Honorable Court be pleased to issue a conservatory order restraining the 4th respondent, its agents, servants, employees, contractors, directors, shareholders, or any person acting under its authority, whether by themselves or through any corporate vehicle or business name whatsoever, from conducting any mining, blasting, excavation, quarrying, drilling, rock crushing, or any other related operations
i. on any parcel of land derived from or traceable to from the original mother title Kakamega/ Lugari/ 965, including but not limited to Kakamega/Lugari/3229,3230, 3232, 3233, 3234, 3235, 3237, 3569, 4568, 4569 and 5544; and Kakamega/Lugari/3570, 3571, 4567, 5137, 5138, 5139, 5140, 5481, 5482, 5543 and 5545 (being resultant subdivisions thereof); AND;
ii. on, within, or affecting the following settlement parcels where the Lugari Community resides: numbers 194 (Amena), 198 (Sagara), 197 (Kavala), 292 (Kimomo), 290 (Nyore), 291 (Mmai), 267 (Imbwaga Itumbiru), 273 (Shadrach), 272 (Clement Lichiko), 271 (Shtendes), 20 (Locho), 21 (Kadima), 22 (Alfayo Sagala), 19 (Martin Ambuvi), 201 (Mtengo), and 202 (Marachi); AND
iii. within 500 metres of any structure, homestead, or building located on the said settlement parcels or on any parcel derived from the original mother title Kakamega/ ¬Lugari/965, including but not limited to Kakamega/Lugari/3229, 3230, 3232, 3233, 3234, 3235, 3237, 3569, 4568, 4569 and 5544; and Kakamega/Lugari/3570, 3571, 4567, 5137, 5138, 5139, 5140, 5481, 5482, 5543 and 5545 (being resultant subdivisions thereof).
d. THAT pending the inter partes hearing of this application and the petition, this Honorable Court be pleased to issue a conservatory order directing the 1st respondent, through the County Mining Officer for Kakamega and Busia Counties, to immediately enforce the stoppage orders issued on 16th October 2025 and 22nd January 2026 by sealing all access roads to the quarry site; Posting a guard at the quarry site to prevent any further operations; and Filing a return with this Honorable Court within seven (7) days confirming compliance.
e. THAT pending the inter partes hearing of this application, this Honorable Court be pleased to issue a conservatory order directing the Officer Commanding Station (OCS) Pan-Paper Police Station and the Officer Commanding Police Division (OCPD) Lugari to:
i. Provide adequate security for the enforcement of the orders of this Honorable Court;
ii. Arrest and present before this Honorable court any person found violating the orders of this Honorable Court.
f. THAT pending the inter partes hearing of this application, this Honorable Court be pleased to issue a conservatory order directing the 3rd respondent to issue an immediate closure order under Section 117(3)(f) of the Environmental Management and Co-ordination Act (Cap. 387) against the quarry operations; and file a return with this Honorable Court within seven (7) days confirming compliance
g. THAT pending the inter partes hearing of this application, this Honorable Court be pleased to issue a conservatory order prohibiting the 1st respondent from issuing any mining license, permit, license, concession, or any other form of authorization, whether temporary or permanent, to the 4th respondent or any other person or entity in respect of any parcel of land derived from or traceable to from the original mother title Kakamega/Lugari/965, including but not limited to Kakamega/Lugari/3229, 3230, 3232, 3233, 3234, 3235, 3237, 3569, 4568, 4569 and 5544; and Kakamega/Lugari/3570, 3571, 4567, 5137, 5138, 5139, 5140, 5481, 5482, 5543 and 5545 (being resultant subdivisions thereof).
h. THAT pending the inter partes hearing of this application, this Honorable Court be pleased to issue a conservatory order directing the 4th respondent to remove all explosives, blasting materials, and hazardous substances from the quarry site within forty-eight (48) hours of service of this order, under the supervision of the 1st respondent and the OCS Pan-Paper Police Station.
i. THAT pending the inter partes hearing of this application, this Honorable Court be pleased to issue a conservatory order restraining the 2nd Interested Party, whether by himself, his agents, servants, employees, or any person acting under his authority, from conducting or facilitating any mining, blasting, or quarrying operations:
i. on any parcel of land derived from or traceable to from the original mother title Kakamega/Lugari /965, including but not limited to Kakamega/Lugari/3229, 3230, 3232, 3233, 3234, 3235, 3237, 3569, 4568, 4569 and 5544; and Kakamega/Lugari/3570, 3571, 4567, 5137, 5138, 5139, 5140, 5481, 5482, 5543 and 5545 (being resultant subdivisions thereof); AND
ii. on, within, or affecting the following settlement parcels where the Lugari Community resides: numbers 194 (Amena), 198 (Sagara), 197 (Kavala), 292 (Kimomo), 290 (Nyore), 291 (Mmai), 267 (Imbwaga Itumbiru), 273 (Shadrach), 272 (Clement Lichiko), 271 (Shtendes), 20 (Locho), 21 (Kadima), 22 (Alfayo Sagala), 19 (Martin Ambuvi), 201 (Mtengo), and 202 (Marachi).
j. THAT pending the hearing and determination of the petition herein, this Honorable Court be pleased to issue a conservatory order restraining the 4th respondent, its agents, servants, employees, contractors, directors, shareholders, or any person acting under its authority, from conducting any mining, blasting, excavation, quarrying, or any other related operations:
i. on any parcel of land derived from or traceable to from the original mother title Kakamega/Lugari /965, including but not limited to Kakamega/Lugari/3229, 3230, 3232, 3233, 3234, 3235, 3237, 3569, 4568, 4569 and 5544; and Kakamega/Lugari/3570, 3571, 4567, 5137, 5138, 5139, 5140, 5481, 5482, 5543 and 5545 (being resultant subdivisions thereof); AND
ii. on, within, or affecting the following settlement parcels where the Lugari Community resides: numbers 194 (Amena), 198 (Sagara), 197 (Kavala), 292 (Kimomo), 290 (Nyore), 291 (Mmai), 267 (Imbwaga Itumbiru), 273 (Shadrach), 272 (Clement Lichiko), 271 (Shtendes), 20 (Locho), 21 (Kadima), 22 (Alfayo Sagala), 19 (Martin Ambuvi), 201 (Mtengo), and 202 (Marachi); AND
iii. within 500 meters of any structure, homestead, or building located on the said settlement parcels or on any parcel derived from from the original mother title Kakamega/Lugari/965, including but not limited to Kakamega/Lugari/3229, 3230, 3232, 3233, 3234, 3235, 3237, 3569, 4568, 4569 and 5544; and Kakamega/Lugari/3570, 3571, 4567, 5137, 5138, 5139, 5140, 5481, 5482, 5543 and 5545 (being resultant subdivisions thereof).
k. THAT pending the hearing and determination of the petition herein, this Honorable Court be pleased to issue a conservatory order directing the 1st respondent to enforce the stoppage orders of 16th October 2025 and 22nd January 2026 and to maintain such enforcement until the petition is heard and determined.
l. THAT pending the hearing and determination of the petition herein, this Honorable Court be pleased to issue a conservatory order prohibiting the 1st respondent from issuing any mining license, permit, or any other form of authorization to the 4th Respondent or any other person or entity in respect of any parcel of land derived from or traceable to Kakamega Lugari 965.
m. THAT pending the hearing and determination of the petition herein, this Honorable Court be pleased to issue a conservatory order directing the 3rd respondent to maintain the closure order issued pursuant to Prayer 6 herein until the petition is heard and determined.
n. THAT this Honorable Court be pleased to issue orders for the expedited hearing of the petition and for the abridgement of time within which the respondents may file their responses.
o. THAT this Honorable Court be pleased to issue any other orders or give such directions as it may deem just and expedient in the circumstances.
p. THAT the costs of this application be provided for.
2. The application is predicated on the grounds on its face as well as affidavits sworn by the petitioners. The petitioners stated that unlawful mining, blasting, quarrying, excavation and related operations are being undertaken by the 4th respondent on parcels of land derived from the original mother title known as Kakamega/Lugari/965, and within close proximity to settlement parcels occupied by members of the Lugari Community. That Timothy Shakhalaka Eric Jirongo is the registered proprietor of the original mother title, Kakamega/Lugari/965, which was subsequently subdivided into several parcels. That following investigations at the Kakamega Lands Registry, the applicants discovered a fraudulent transfer of several resultant parcels through forged signatures, manufactured identification documents and irregular dealings, procured by the 2nd interested party, Dinesh Chandulal Mokha, and that, following the said transactions, quarry operations were commenced on parcels derived from the original title.
3. The applicants contended that the quarry operations are being carried out without a valid mining license, without the consent of the registered landowner, without a blasting permit and without lawful environmental approvals. They further alleged that the operations are being undertaken by or through changing corporate vehicles, including Simba Hydronet Lime Limited and the 4th respondent, Chaju Builders Limited, in a manner calculated to obscure the true operator and perpetuate illegality.
4. The applicants’ further case is that the quarrying and blasting activities have caused substantial damage to private homes and community property. In particular, that the 1st petitioner’s family home, situated approximately 470 meters from the quarry, has suffered extensive structural damage and has been assessed by a qualified engineer as a constructive total loss. They also aver that the blasting has damaged several homes within the affected settlement parcels and has exposed residents to danger, dust, noise, vibrations and environmental degradation.
5. The applicants also stated that Manyonyi Comprehensive School is situated near the quarry and that the blasting has affected the school’s infrastructure and learning environment and that the continued operations pose an imminent threat to the safety, health and dignity of the local community, including school-going children.
6. That the Ministry of Mining had already issued stoppage orders on 16th October 2025 and 22nd January 2026 after inspection revealed that the quarry was operating without a valid mining license and was conducting unauthorized blasting contrary to section 11 of the Explosives Act (Cap 115). That the said stoppage orders were subsequently lifted on 6th February 2026, not on account of legal compliance, but on the basis that the quarry products were required for the Affordable Housing Project. That vide a letter dated 15th January 2026, the applicants’ advocate wrote to the 1st respondent, requesting for an audit trail or any copies of licenses issued. That vide correspondence issued by the Ministry on 12th March 2026, the 1st respondent stated that Simba Hydronet Lime Limited was not registered in its online cadastre system and that no mining activity had been licensed over the relevant land parcel. That the mining license application by the 4th respondent was still under review.
7. The applicants further stated that their advocate wrote to the 3rd respondent, the National Environment Management Authority, on 24th October 2024, raising concerns over the environmental effects of the quarry operations allegedly carried out by Simba Quarry. That, in response, the Director General of the 3rd respondent confirmed that an inspection had been conducted on 29th October 2024, following which the proponent was issued with an Improvement Notice requiring compliance with the relevant legal requirements, including the Environmental Impact Assessment license conditions, and directing that no blasting activities be undertaken without the consent of the neighboring community. They faulted the 3rd respondent for allegedly failing to take further enforcement action despite the said inspection and Improvement Notice. They contended that, having established non-compliance, the 3rd respondent ought to have revoked the EIA license as provided under Section 67 of the Environment Management and Coordination Act (EMCA).
8. The application was opposed. The 1st and 2nd respondents filed a replying affidavit sworn on 8th July 2026 by Harry Kimtai, the Principal Secretary in the State Department for Mining, Ministry of Mining, Blue Economy and Maritime Affairs. He stated that records showed that the 2nd interested party lodged the first mining permit application with regards to the subject quarry on 20th December 2023 for extraction of construction and industrial minerals over an area measuring 0.1603 km² in Kakamega County for a period of five years. He stated that the said application was supported by copies of title deeds for Kakamega/Lugari/3230 and Kakamega/Lugari/3569, both in the name of Timothy Shakhalaka Eric Jirongo, as evidence of landowner consent covering approximately 8.96 hectares within the proposed project area.
9. That upon technical and legal evaluation, the application was found to be incomplete for failure to satisfy the statutory requirements under the Mining Act, 2016 and the Mining (Licence and Permit) Regulations, 2017. He stated that although the application had been made in the name of the 2nd interested party as an individual, the supporting documentation and operational information showed that the quarry operations were associated with Simba Quarry Limited and/or Simba Hydronet Lime Limited. Consequently, the application was withdrawn on 15th December 2025 before any determination was made, and no mining permit was granted. He further stated that the 4th respondent had since made an application for a license for mining construction materials, which had passed through the technical stages and had been approved by the Cabinet Secretary for publication in accordance with section 34 of the Mining Act.
10. They further contended that the application before court was premature, as the applicants had not exhausted the remedies available under the Mining Act, including writing to the Cabinet Secretary and the Minerals Board to seek suspension of any mining activity as provided by law. That the issues raised by the applicants, including mining without a license, landowner consent, explosives permit and environmental impact assessment, were matters falling within the mandate of the 1st respondent as the licensing authority.
11. On his part, responding to the application, the 2nd interested party filed a preliminary objection dated 23rd June 2026, citing the following grounds:
a. THAT this court lacks jurisdiction to entertain and determine the issues and/or complaints raised in the Notice of Motion dated 25th May 2026 and in the petition;
b. THAT the Notice of Motion dated 25th May 2026 is res judicata;
c. THAT the Notice of Motion dated 25th May 2026, together with the petition, offends the doctrine of sub judice, on the basis that the substratum of the application and petition is similar to the issues in Kakamega ELC No. E086 of 2025, Harriette Igonanga Chiggai v Dinesh Chandulal Mokha & 11 Others, which matter is said to be pending before this court;
d. THAT the petition is multifaceted and presents several issues in an omnibus manner
12. The 2nd interested party prayed that the petition be struck out and/or dismissed with costs.
13. The 4th respondent similarly opposed the application by filing a preliminary objection dated 24th June, on the following grounds:
a. This honorable Court lacks jurisdiction to hear and determine the Petition and the Notice of Motion as the same offends the Justiciability Doctrine of Constitutional Avoidance and Exhaustion.
b. The Petition and the Notice of Motion is Sub judice to Kakamega ELC No. E086 of 2026 and is a contravention of Section 6 of the Civil Procedure Act Chapter 21 Laws of Kenya.
c. The 1st Petitioner has no locus standi as the General Power of Attorney signed, dated, and registered on 22.10.2025, 27.10.2025 and 25.11.2025 respectively relied upon by the 1st Petitioner is a nullity for want of legal capacity on the part of the Donor pursuant to the Law of Contract Act on Master-Agent Relationship.
d. The 1st Petitioner has no locus standi to act as a Guardian/Manager of the Estate of Timothy Shakhalaka Erick Jirongo on account of the latter’s mental dementia pursuant to the provisions of Sections 26, 27 and 28 of the Mental Health Act Chapter 248 Laws of Kenya for want of an Order of Guardianship or Management in favor of the 1st Petitioner.
e. The Petition and the Notice of Motion is untenable, an afterthought, misconceived, bad in law, inept, incurably defective, vexatious, mischievous and an abuse of this honorable Court’s process and ought to be struck out in limine with costs to the 4th respondent.
14. The 4th respondent also filed a replying affidavit sworn on 24th June 2026 by Samuel Otieno Bach, its Operations Director in response to the notice of motion. He deponed that the 4th respondent acquired the suit properties, namely Kakamega/Lugari/3230, 3233, 3569 and 5544, together with the quarry infrastructure, from the 2nd interested party pursuant to a sale agreement dated 30th September 2025. It maintained that it was a bona fide purchaser for value and that due diligence was conducted before the purchase confirmed the 2nd interested party as the registered proprietor for a period of over 9 years. It further averred that any alleged regulatory infractions were attributable to the previous operator. That upon taking over the quarry operations, it engaged the relevant regulatory authorities, settled the outstanding statutory dues, regularized the operations, procured the transfer of the NEMA Environmental Impact Assessment license into its name, and applied for a 2026 mining license through the Kenya Online Mining Cadastre Portal.
15. The 4th respondent stated that the Ministry of Mining lifted the stoppage orders after considering the steps taken towards compliance and the public interest attached to supply of materials for the Affordable Housing Project. That the petition and application were an abuse of the court process, as the issues raised were substantially similar to those pending in Kakamega ELC Case No. E086 of 2025 and thus the proceedings herein offended the doctrines of sub judice and res judicata and amounted to forum shopping under the guise of a constitutional petition
16. It further challenged the invocation of constitutional jurisdiction, contending that the grievances raised were capable of resolution under the Mining Act, the Land Registration Act, EMCA, judicial review, and ordinary civil remedies. On the alleged environmental and structural damage, the 4th respondent stated that the applicants had not produced scientific, seismic, acoustic or technical evidence linking the alleged damage to its operations. It further stated that its quarry was approximately 854.08 metres from Manyonyi Comprehensive School and that another quarry, Nzoia Quarry Limited, operated nearer to the school.
17. The 4th respondent denied being an alter ego of Simba Hydronet Lime Limited, maintaining that it was a distinct corporate entity with separate directors, shareholders and legal personality. Further, that the petitioners’ lacked locus standi, contending that the 1st petitioner lacked proper authority to sue on behalf of Timothy Shakhalaka Eric Jirongo, while the 2nd petitioner had not demonstrated authority to sue on behalf of the alleged affected members of the Lugari Community.
18. In rejoinder, the petitioners filed supplementary affidavits, both dated 1st July 2026, in response to the replying affidavit sworn on behalf of the 4th respondent. The 1st petitioner averred that the 4th respondent’s claim of being a bona fide purchaser for value did not answer the question of whether the quarry operations were lawful. That the sale agreement relied upon by the 4th respondent could not confer a mining license, a blasting permit, landowner consent or environmental compliance. She further stated that the 4th respondent acquired the quarry operations with actual or constructive notice of the existing ownership dispute and regulatory non-compliance. She stated that the payment of statutory dues, royalties or penalties did not amount to regularization of the quarry operations. That the 4th respondent’s own evidence showed that it had merely applied for a mining license and that the application was still under review.
19. The petitioners further contended that the lifting of the stoppage orders was not founded on strict compliance with the law, but on policy considerations relating to the Affordable Housing Project and the Bottom-Up Economic Transformation Agenda. That policy considerations could not override the requirements of the Constitution, the Mining Act, the Explosives Act and the Environmental Management and Co-ordination Act.
20. The petitioners stated that the present petition was distinct from Kakamega ELC Case No. E086 of 2025. That the said suit concerned private land ownership and alleged fraudulent transfers, whereas the present petition raised public law and constitutional questions relating to the legality of the lifting of stoppage orders, alleged mining without a licence, blasting without a permit, failure by NEMA to enforce environmental law, and alleged violations of constitutional rights. They therefore denied that the petition was res judicata, sub judice, or an abuse of the court process.
21. On the issue of constitutional avoidance and exhaustion, the 1st petitioner averred that the petition raised direct questions touching on the rights to property, fair administrative action, a clean and healthy environment, and the State’s environmental obligations. They also stated that leave had been granted in Kakamega ELC Misc. Application No. E004 of 2026 exempting them from exhausting any administrative remedies that may have been available.
22. The 2nd petitioner, in his supplementary affidavit, stated that he had locus standi to act on behalf of members of the Lugari Community, and that in any event, Article 70 of the Constitution allowed any person to move the court for enforcement of the right to a clean and healthy environment without proving personal loss or injury. He averred that the photographs relied upon by the petitioners were properly produced and were accompanied by a certificate under section 106B of the Evidence Act.
23. The petitioners also disputed the 4th respondent’s contention that the alleged damage could be attributed to another quarry operating in the area. They maintained that the existence of another quarry did not absolve the 4th respondent from responsibility, and that the applicants had placed before the court an engineer’s report linking the observed structural damage to ground-borne vibration associated with nearby blasting and heavy ground disturbance.
24. The court directed that the application dated 25th May 2026 as well as the preliminary objections filed by the 4th respondent and 2nd interested party shall be heard together and shall be disposed by way of written submissions. All the parties herein filed submissions in respect thereto, which they highlighted on 14th July 2026.
Petitioners’ submissions
25. The petitioners filed joint submissions dated 1st July 2026 and 3rd July 2026. They submitted that the Preliminary objections filed did not meet the legal threshold of a proper preliminary objection. Relying on Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696 they submitted that a preliminary objection must raise a pure point of law capable of disposing of the matter on the assumption that the facts pleaded by the opposing party are correct. They contended that the objections before court required the ascertainment of disputed facts, including the validity of the power of attorney, the donor’s alleged mental capacity, the similarity of parties and issues in the pending suit, and whether the petition amounted to an abuse of the court process. In their view, those matters could not properly be determined at the preliminary stage.
26. On jurisdiction, constitutional avoidance and exhaustion, the petitioners submitted that the objection was untenable because the petition had been filed pursuant to leave granted by this court on 22nd May 2026 in Kakamega ELC Misc. Application No. E004 of 2026, which exempted them from exhausting any administrative remedies that may have been available. That the said order had not been reviewed, set aside or appealed against, and could not be collaterally challenged through a preliminary objection. They further submitted that the petition raised substantial constitutional and environmental questions, including alleged violations of Articles 40, 42, 47, 69 and 70 of the Constitution, which could not be adequately resolved through ordinary statutory mechanisms.
27. Regarding whether the petition is sub judice, the petitioners submitted that the present petition was distinct from Kakamega ELC Case No. E086 of 2025. That the said ELC suit concerned private land ownership, alleged fraud and validity of land transfers, while the present petition raised public law questions relating to the legality of the lifting of stoppage orders, alleged mining without a license, blasting without a permit, failure by NEMA to enforce environmental law, and alleged violation of constitutional rights. They further submitted that the parties and reliefs in the two matters were not similar, and that the existence of the former suit had been expressly disclosed in the petition and supporting affidavit.
28. On the issue of res judicata, the petitioners submitted that no court had heard and finally determined the issues raised in the petition or in the Notice of Motion dated 25th May 2026. That a pending suit could not amount to a final determination, and that the 2nd interested party had not identified any previous decision by a competent court determining the same issues between the same parties.
29. On whether the 1st petitioner has locus standi, the petitioners submitted that the challenge to the 1st petitioner’s authority to sue on behalf of Timothy Shakhalaka Eric Jirongo raised factual questions that could not be resolved by way of preliminary objection. They contended that the power of attorney relied upon was duly registered, and that no medical or legal evidence had been placed before court to prove that the donor lacked capacity at the time of its execution. They further submitted that the 1st petitioner was suing as an appointed attorney, not as a guardian or manager under the Mental Health Act.
30. The petitioners also opposed the contention that the petition was multifaceted, omnibus or an abuse of the court process and submitted that the fact that a petition raised several related constitutional, land and environmental issues did not deprive this court of jurisdiction. They relied on the position that the Environment and Land Court was the proper forum to determine multifaceted claims involving land, environment and constitutional rights. That the petition was supported by documentary evidence, including stoppage orders, correspondence from the Ministry, NEMA notices, and an engineer’s report, and therefore could not be dismissed as frivolous or vexatious at the preliminary stage.
31. They further contended that they had established a prima facie case with a likelihood of success. They relied on the stoppage orders issued by the County Mining Officer on 16th October 2025 and 22nd January 2026, which, according to them, confirmed that the quarry was operating without a valid mining license, was conducting unauthorized blasting, and had generated complaints from neighboring homesteads on account of noise, dust and vibrations. They further submitted that the stoppage orders were lifted on 6th February 2026, not because the quarry had complied with the law, but on account of policy considerations relating to the Affordable Housing Project.
32. The petitioners further submitted that correspondence from the Ministry of Mining dated 12th March 2026 confirmed that Simba Hydronet Lime Limited, the previous operator, had never been registered in the online cadastre system and had never held a mining license. They also submitted that the Ministry confirmed that no mining activity had ever been licensed on Kakamega/Lugari/3230, and that the 4th respondent’s application for a mining license was still under review. That NEMA had issued an Improvement Notice on 29th April 2025 requiring the quarry to comply with the law and to stop blasting activities without the consent of the neighboring community. That however, the said notice was ignored and that blasting continued, resulting in extensive structural damage to the 1st petitioner’s family home and other homes within the affected community.
33. Relying on the principles governing conservatory orders as set out in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, Wilson Kaberia Nkunja v Magistrates and Judges Vetting Board & another, and Mrao Ltd v First American Bank of Kenya Ltd & 2 others, the applicants submitted that a conservatory order is a public law remedy intended to preserve the substratum of the petition, protect constitutional values and prevent continued v
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1. Before court is a Notice of Motion dated 25th May 2026 filed under Certificate of Urgency by the petitioners/applicants seeking the following orders:
a. Spent
b. THAT pending the inter partes hearing of this application, this Honorable Court be pleased to issue interim conservatory orders in terms of prayers 3, 4, 5, 6, 7, 8 and 9 herein.
c. THAT pending the inter partes hearing of this Application, this Honorable Court be pleased to issue a conservatory order restraining the 4th respondent, its agents, servants, employees, contractors, directors, shareholders, or any person acting under its authority, whether by themselves or through any corporate vehicle or business name whatsoever, from conducting any mining, blasting, excavation, quarrying, drilling, rock crushing, or any other related operations
i. on any parcel of land derived from or traceable to from the original mother title Kakamega/ Lugari/ 965, including but not limited to Kakamega/Lugari/3229,3230, 3232, 3233, 3234, 3235, 3237, 3569, 4568, 4569 and 5544; and Kakamega/Lugari/3570, 3571, 4567, 5137, 5138, 5139, 5140, 5481, 5482, 5543 and 5545 (being resultant subdivisions thereof); AND;
ii. on, within, or affecting the following settlement parcels where the Lugari Community resides: numbers 194 (Amena), 198 (Sagara), 197 (Kavala), 292 (Kimomo), 290 (Nyore), 291 (Mmai), 267 (Imbwaga Itumbiru), 273 (Shadrach), 272 (Clement Lichiko), 271 (Shtendes), 20 (Locho), 21 (Kadima), 22 (Alfayo Sagala), 19 (Martin Ambuvi), 201 (Mtengo), and 202 (Marachi); AND
iii. within 500 metres of any structure, homestead, or building located on the said settlement parcels or on any parcel derived from the original mother title Kakamega/ ¬Lugari/965, including but not limited to Kakamega/Lugari/3229, 3230, 3232, 3233, 3234, 3235, 3237, 3569, 4568, 4569 and 5544; and Kakamega/Lugari/3570, 3571, 4567, 5137, 5138, 5139, 5140, 5481, 5482, 5543 and 5545 (being resultant subdivisions thereof).
d. THAT pending the inter partes hearing of this application and the petition, this Honorable Court be pleased to issue a conservatory order directing the 1st respondent, through the County Mining Officer for Kakamega and Busia Counties, to immediately enforce the stoppage orders issued on 16th October 2025 and 22nd January 2026 by sealing all access roads to the quarry site; Posting a guard at the quarry site to prevent any further operations; and Filing a return with this Honorable Court within seven (7) days confirming compliance.
e. THAT pending the inter partes hearing of this application, this Honorable Court be pleased to issue a conservatory order directing the Officer Commanding Station (OCS) Pan-Paper Police Station and the Officer Commanding Police Division (OCPD) Lugari to:
i. Provide adequate security for the enforcement of the orders of this Honorable Court;
ii. Arrest and present before this Honorable court any person found violating the orders of this Honorable Court.
f. THAT pending the inter partes hearing of this application, this Honorable Court be pleased to issue a conservatory order directing the 3rd respondent to issue an immediate closure order under Section 117(3)(f) of the Environmental Management and Co-ordination Act (Cap. 387) against the quarry operations; and file a return with this Honorable Court within seven (7) days confirming compliance
g. THAT pending the inter partes hearing of this application, this Honorable Court be pleased to issue a conservatory order prohibiting the 1st respondent from issuing any mining license, permit, license, concession, or any other form of authorization, whether temporary or permanent, to the 4th respondent or any other person or entity in respect of any parcel of land derived from or traceable to from the original mother title Kakamega/Lugari/965, including but not limited to Kakamega/Lugari/3229, 3230, 3232, 3233, 3234, 3235, 3237, 3569, 4568, 4569 and 5544; and Kakamega/Lugari/3570, 3571, 4567, 5137, 5138, 5139, 5140, 5481, 5482, 5543 and 5545 (being resultant subdivisions thereof).
h. THAT pending the inter partes hearing of this application, this Honorable Court be pleased to issue a conservatory order directing the 4th respondent to remove all explosives, blasting materials, and hazardous substances from the quarry site within forty-eight (48) hours of service of this order, under the supervision of the 1st respondent and the OCS Pan-Paper Police Station.
i. THAT pending the inter partes hearing of this application, this Honorable Court be pleased to issue a conservatory order restraining the 2nd Interested Party, whether by himself, his agents, servants, employees, or any person acting under his authority, from conducting or facilitating any mining, blasting, or quarrying operations:
i. on any parcel of land derived from or traceable to from the original mother title Kakamega/Lugari /965, including but not limited to Kakamega/Lugari/3229, 3230, 3232, 3233, 3234, 3235, 3237, 3569, 4568, 4569 and 5544; and Kakamega/Lugari/3570, 3571, 4567, 5137, 5138, 5139, 5140, 5481, 5482, 5543 and 5545 (being resultant subdivisions thereof); AND
ii. on, within, or affecting the following settlement parcels where the Lugari Community resides: numbers 194 (Amena), 198 (Sagara), 197 (Kavala), 292 (Kimomo), 290 (Nyore), 291 (Mmai), 267 (Imbwaga Itumbiru), 273 (Shadrach), 272 (Clement Lichiko), 271 (Shtendes), 20 (Locho), 21 (Kadima), 22 (Alfayo Sagala), 19 (Martin Ambuvi), 201 (Mtengo), and 202 (Marachi).
j. THAT pending the hearing and determination of the petition herein, this Honorable Court be pleased to issue a conservatory order restraining the 4th respondent, its agents, servants, employees, contractors, directors, shareholders, or any person acting under its authority, from conducting any mining, blasting, excavation, quarrying, or any other related operations:
i. on any parcel of land derived from or traceable to from the original mother title Kakamega/Lugari /965, including but not limited to Kakamega/Lugari/3229, 3230, 3232, 3233, 3234, 3235, 3237, 3569, 4568, 4569 and 5544; and Kakamega/Lugari/3570, 3571, 4567, 5137, 5138, 5139, 5140, 5481, 5482, 5543 and 5545 (being resultant subdivisions thereof); AND
ii. on, within, or affecting the following settlement parcels where the Lugari Community resides: numbers 194 (Amena), 198 (Sagara), 197 (Kavala), 292 (Kimomo), 290 (Nyore), 291 (Mmai), 267 (Imbwaga Itumbiru), 273 (Shadrach), 272 (Clement Lichiko), 271 (Shtendes), 20 (Locho), 21 (Kadima), 22 (Alfayo Sagala), 19 (Martin Ambuvi), 201 (Mtengo), and 202 (Marachi); AND
iii. within 500 meters of any structure, homestead, or building located on the said settlement parcels or on any parcel derived from from the original mother title Kakamega/Lugari/965, including but not limited to Kakamega/Lugari/3229, 3230, 3232, 3233, 3234, 3235, 3237, 3569, 4568, 4569 and 5544; and Kakamega/Lugari/3570, 3571, 4567, 5137, 5138, 5139, 5140, 5481, 5482, 5543 and 5545 (being resultant subdivisions thereof).
k. THAT pending the hearing and determination of the petition herein, this Honorable Court be pleased to issue a conservatory order directing the 1st respondent to enforce the stoppage orders of 16th October 2025 and 22nd January 2026 and to maintain such enforcement until the petition is heard and determined.
l. THAT pending the hearing and determination of the petition herein, this Honorable Court be pleased to issue a conservatory order prohibiting the 1st respondent from issuing any mining license, permit, or any other form of authorization to the 4th Respondent or any other person or entity in respect of any parcel of land derived from or traceable to Kakamega Lugari 965.
m. THAT pending the hearing and determination of the petition herein, this Honorable Court be pleased to issue a conservatory order directing the 3rd respondent to maintain the closure order issued pursuant to Prayer 6 herein until the petition is heard and determined.
n. THAT this Honorable Court be pleased to issue orders for the expedited hearing of the petition and for the abridgement of time within which the respondents may file their responses.
o. THAT this Honorable Court be pleased to issue any other orders or give such directions as it may deem just and expedient in the circumstances.
p. THAT the costs of this application be provided for.
2. The application is predicated on the grounds on its face as well as affidavits sworn by the petitioners. The petitioners stated that unlawful mining, blasting, quarrying, excavation and related operations are being undertaken by the 4th respondent on parcels of land derived from the original mother title known as Kakamega/Lugari/965, and within close proximity to settlement parcels occupied by members of the Lugari Community. That Timothy Shakhalaka Eric Jirongo is the registered proprietor of the original mother title, Kakamega/Lugari/965, which was subsequently subdivided into several parcels. That following investigations at the Kakamega Lands Registry, the applicants discovered a fraudulent transfer of several resultant parcels through forged signatures, manufactured identification documents and irregular dealings, procured by the 2nd interested party, Dinesh Chandulal Mokha, and that, following the said transactions, quarry operations were commenced on parcels derived from the original title.
3. The applicants contended that the quarry operations are being carried out without a valid mining license, without the consent of the registered landowner, without a blasting permit and without lawful environmental approvals. They further alleged that the operations are being undertaken by or through changing corporate vehicles, including Simba Hydronet Lime Limited and the 4th respondent, Chaju Builders Limited, in a manner calculated to obscure the true operator and perpetuate illegality.
4. The applicants’ further case is that the quarrying and blasting activities have caused substantial damage to private homes and community property. In particular, that the 1st petitioner’s family home, situated approximately 470 meters from the quarry, has suffered extensive structural damage and has been assessed by a qualified engineer as a constructive total loss. They also aver that the blasting has damaged several homes within the affected settlement parcels and has exposed residents to danger, dust, noise, vibrations and environmental degradation.
5. The applicants also stated that Manyonyi Comprehensive School is situated near the quarry and that the blasting has affected the school’s infrastructure and learning environment and that the continued operations pose an imminent threat to the safety, health and dignity of the local community, including school-going children.
6. That the Ministry of Mining had already issued stoppage orders on 16th October 2025 and 22nd January 2026 after inspection revealed that the quarry was operating without a valid mining license and was conducting unauthorized blasting contrary to section 11 of the Explosives Act (Cap 115). That the said stoppage orders were subsequently lifted on 6th February 2026, not on account of legal compliance, but on the basis that the quarry products were required for the Affordable Housing Project. That vide a letter dated 15th January 2026, the applicants’ advocate wrote to the 1st respondent, requesting for an audit trail or any copies of licenses issued. That vide correspondence issued by the Ministry on 12th March 2026, the 1st respondent stated that Simba Hydronet Lime Limited was not registered in its online cadastre system and that no mining activity had been licensed over the relevant land parcel. That the mining license application by the 4th respondent was still under review.
7. The applicants further stated that their advocate wrote to the 3rd respondent, the National Environment Management Authority, on 24th October 2024, raising concerns over the environmental effects of the quarry operations allegedly carried out by Simba Quarry. That, in response, the Director General of the 3rd respondent confirmed that an inspection had been conducted on 29th October 2024, following which the proponent was issued with an Improvement Notice requiring compliance with the relevant legal requirements, including the Environmental Impact Assessment license conditions, and directing that no blasting activities be undertaken without the consent of the neighboring community. They faulted the 3rd respondent for allegedly failing to take further enforcement action despite the said inspection and Improvement Notice. They contended that, having established non-compliance, the 3rd respondent ought to have revoked the EIA license as provided under Section 67 of the Environment Management and Coordination Act (EMCA).
8. The application was opposed. The 1st and 2nd respondents filed a replying affidavit sworn on 8th July 2026 by Harry Kimtai, the Principal Secretary in the State Department for Mining, Ministry of Mining, Blue Economy and Maritime Affairs. He stated that records showed that the 2nd interested party lodged the first mining permit application with regards to the subject quarry on 20th December 2023 for extraction of construction and industrial minerals over an area measuring 0.1603 km² in Kakamega County for a period of five years. He stated that the said application was supported by copies of title deeds for Kakamega/Lugari/3230 and Kakamega/Lugari/3569, both in the name of Timothy Shakhalaka Eric Jirongo, as evidence of landowner consent covering approximately 8.96 hectares within the proposed project area.
9. That upon technical and legal evaluation, the application was found to be incomplete for failure to satisfy the statutory requirements under the Mining Act, 2016 and the Mining (Licence and Permit) Regulations, 2017. He stated that although the application had been made in the name of the 2nd interested party as an individual, the supporting documentation and operational information showed that the quarry operations were associated with Simba Quarry Limited and/or Simba Hydronet Lime Limited. Consequently, the application was withdrawn on 15th December 2025 before any determination was made, and no mining permit was granted. He further stated that the 4th respondent had since made an application for a license for mining construction materials, which had passed through the technical stages and had been approved by the Cabinet Secretary for publication in accordance with section 34 of the Mining Act.
10. They further contended that the application before court was premature, as the applicants had not exhausted the remedies available under the Mining Act, including writing to the Cabinet Secretary and the Minerals Board to seek suspension of any mining activity as provided by law. That the issues raised by the applicants, including mining without a license, landowner consent, explosives permit and environmental impact assessment, were matters falling within the mandate of the 1st respondent as the licensing authority.
11. On his part, responding to the application, the 2nd interested party filed a preliminary objection dated 23rd June 2026, citing the following grounds:
a. THAT this court lacks jurisdiction to entertain and determine the issues and/or complaints raised in the Notice of Motion dated 25th May 2026 and in the petition;
b. THAT the Notice of Motion dated 25th May 2026 is res judicata;
c. THAT the Notice of Motion dated 25th May 2026, together with the petition, offends the doctrine of sub judice, on the basis that the substratum of the application and petition is similar to the issues in Kakamega ELC No. E086 of 2025, Harriette Igonanga Chiggai v Dinesh Chandulal Mokha & 11 Others, which matter is said to be pending before this court;
d. THAT the petition is multifaceted and presents several issues in an omnibus manner
12. The 2nd interested party prayed that the petition be struck out and/or dismissed with costs.
13. The 4th respondent similarly opposed the application by filing a preliminary objection dated 24th June, on the following grounds:
a. This honorable Court lacks jurisdiction to hear and determine the Petition and the Notice of Motion as the same offends the Justiciability Doctrine of Constitutional Avoidance and Exhaustion.
b. The Petition and the Notice of Motion is Sub judice to Kakamega ELC No. E086 of 2026 and is a contravention of Section 6 of the Civil Procedure Act Chapter 21 Laws of Kenya.
c. The 1st Petitioner has no locus standi as the General Power of Attorney signed, dated, and registered on 22.10.2025, 27.10.2025 and 25.11.2025 respectively relied upon by the 1st Petitioner is a nullity for want of legal capacity on the part of the Donor pursuant to the Law of Contract Act on Master-Agent Relationship.
d. The 1st Petitioner has no locus standi to act as a Guardian/Manager of the Estate of Timothy Shakhalaka Erick Jirongo on account of the latter’s mental dementia pursuant to the provisions of Sections 26, 27 and 28 of the Mental Health Act Chapter 248 Laws of Kenya for want of an Order of Guardianship or Management in favor of the 1st Petitioner.
e. The Petition and the Notice of Motion is untenable, an afterthought, misconceived, bad in law, inept, incurably defective, vexatious, mischievous and an abuse of this honorable Court’s process and ought to be struck out in limine with costs to the 4th respondent.
14. The 4th respondent also filed a replying affidavit sworn on 24th June 2026 by Samuel Otieno Bach, its Operations Director in response to the notice of motion. He deponed that the 4th respondent acquired the suit properties, namely Kakamega/Lugari/3230, 3233, 3569 and 5544, together with the quarry infrastructure, from the 2nd interested party pursuant to a sale agreement dated 30th September 2025. It maintained that it was a bona fide purchaser for value and that due diligence was conducted before the purchase confirmed the 2nd interested party as the registered proprietor for a period of over 9 years. It further averred that any alleged regulatory infractions were attributable to the previous operator. That upon taking over the quarry operations, it engaged the relevant regulatory authorities, settled the outstanding statutory dues, regularized the operations, procured the transfer of the NEMA Environmental Impact Assessment license into its name, and applied for a 2026 mining license through the Kenya Online Mining Cadastre Portal.
15. The 4th respondent stated that the Ministry of Mining lifted the stoppage orders after considering the steps taken towards compliance and the public interest attached to supply of materials for the Affordable Housing Project. That the petition and application were an abuse of the court process, as the issues raised were substantially similar to those pending in Kakamega ELC Case No. E086 of 2025 and thus the proceedings herein offended the doctrines of sub judice and res judicata and amounted to forum shopping under the guise of a constitutional petition
16. It further challenged the invocation of constitutional jurisdiction, contending that the grievances raised were capable of resolution under the Mining Act, the Land Registration Act, EMCA, judicial review, and ordinary civil remedies. On the alleged environmental and structural damage, the 4th respondent stated that the applicants had not produced scientific, seismic, acoustic or technical evidence linking the alleged damage to its operations. It further stated that its quarry was approximately 854.08 metres from Manyonyi Comprehensive School and that another quarry, Nzoia Quarry Limited, operated nearer to the school.
17. The 4th respondent denied being an alter ego of Simba Hydronet Lime Limited, maintaining that it was a distinct corporate entity with separate directors, shareholders and legal personality. Further, that the petitioners’ lacked locus standi, contending that the 1st petitioner lacked proper authority to sue on behalf of Timothy Shakhalaka Eric Jirongo, while the 2nd petitioner had not demonstrated authority to sue on behalf of the alleged affected members of the Lugari Community.
18. In rejoinder, the petitioners filed supplementary affidavits, both dated 1st July 2026, in response to the replying affidavit sworn on behalf of the 4th respondent. The 1st petitioner averred that the 4th respondent’s claim of being a bona fide purchaser for value did not answer the question of whether the quarry operations were lawful. That the sale agreement relied upon by the 4th respondent could not confer a mining license, a blasting permit, landowner consent or environmental compliance. She further stated that the 4th respondent acquired the quarry operations with actual or constructive notice of the existing ownership dispute and regulatory non-compliance. She stated that the payment of statutory dues, royalties or penalties did not amount to regularization of the quarry operations. That the 4th respondent’s own evidence showed that it had merely applied for a mining license and that the application was still under review.
19. The petitioners further contended that the lifting of the stoppage orders was not founded on strict compliance with the law, but on policy considerations relating to the Affordable Housing Project and the Bottom-Up Economic Transformation Agenda. That policy considerations could not override the requirements of the Constitution, the Mining Act, the Explosives Act and the Environmental Management and Co-ordination Act.
20. The petitioners stated that the present petition was distinct from Kakamega ELC Case No. E086 of 2025. That the said suit concerned private land ownership and alleged fraudulent transfers, whereas the present petition raised public law and constitutional questions relating to the legality of the lifting of stoppage orders, alleged mining without a licence, blasting without a permit, failure by NEMA to enforce environmental law, and alleged violations of constitutional rights. They therefore denied that the petition was res judicata, sub judice, or an abuse of the court process.
21. On the issue of constitutional avoidance and exhaustion, the 1st petitioner averred that the petition raised direct questions touching on the rights to property, fair administrative action, a clean and healthy environment, and the State’s environmental obligations. They also stated that leave had been granted in Kakamega ELC Misc. Application No. E004 of 2026 exempting them from exhausting any administrative remedies that may have been available.
22. The 2nd petitioner, in his supplementary affidavit, stated that he had locus standi to act on behalf of members of the Lugari Community, and that in any event, Article 70 of the Constitution allowed any person to move the court for enforcement of the right to a clean and healthy environment without proving personal loss or injury. He averred that the photographs relied upon by the petitioners were properly produced and were accompanied by a certificate under section 106B of the Evidence Act.
23. The petitioners also disputed the 4th respondent’s contention that the alleged damage could be attributed to another quarry operating in the area. They maintained that the existence of another quarry did not absolve the 4th respondent from responsibility, and that the applicants had placed before the court an engineer’s report linking the observed structural damage to ground-borne vibration associated with nearby blasting and heavy ground disturbance.
24. The court directed that the application dated 25th May 2026 as well as the preliminary objections filed by the 4th respondent and 2nd interested party shall be heard together and shall be disposed by way of written submissions. All the parties herein filed submissions in respect thereto, which they highlighted on 14th July 2026.
Petitioners’ submissions
25. The petitioners filed joint submissions dated 1st July 2026 and 3rd July 2026. They submitted that the Preliminary objections filed did not meet the legal threshold of a proper preliminary objection. Relying on Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696 they submitted that a preliminary objection must raise a pure point of law capable of disposing of the matter on the assumption that the facts pleaded by the opposing party are correct. They contended that the objections before court required the ascertainment of disputed facts, including the validity of the power of attorney, the donor’s alleged mental capacity, the similarity of parties and issues in the pending suit, and whether the petition amounted to an abuse of the court process. In their view, those matters could not properly be determined at the preliminary stage.
26. On jurisdiction, constitutional avoidance and exhaustion, the petitioners submitted that the objection was untenable because the petition had been filed pursuant to leave granted by this court on 22nd May 2026 in Kakamega ELC Misc. Application No. E004 of 2026, which exempted them from exhausting any administrative remedies that may have been available. That the said order had not been reviewed, set aside or appealed against, and could not be collaterally challenged through a preliminary objection. They further submitted that the petition raised substantial constitutional and environmental questions, including alleged violations of Articles 40, 42, 47, 69 and 70 of the Constitution, which could not be adequately resolved through ordinary statutory mechanisms.
27. Regarding whether the petition is sub judice, the petitioners submitted that the present petition was distinct from Kakamega ELC Case No. E086 of 2025. That the said ELC suit concerned private land ownership, alleged fraud and validity of land transfers, while the present petition raised public law questions relating to the legality of the lifting of stoppage orders, alleged mining without a license, blasting without a permit, failure by NEMA to enforce environmental law, and alleged violation of constitutional rights. They further submitted that the parties and reliefs in the two matters were not similar, and that the existence of the former suit had been expressly disclosed in the petition and supporting affidavit.
28. On the issue of res judicata, the petitioners submitted that no court had heard and finally determined the issues raised in the petition or in the Notice of Motion dated 25th May 2026. That a pending suit could not amount to a final determination, and that the 2nd interested party had not identified any previous decision by a competent court determining the same issues between the same parties.
29. On whether the 1st petitioner has locus standi, the petitioners submitted that the challenge to the 1st petitioner’s authority to sue on behalf of Timothy Shakhalaka Eric Jirongo raised factual questions that could not be resolved by way of preliminary objection. They contended that the power of attorney relied upon was duly registered, and that no medical or legal evidence had been placed before court to prove that the donor lacked capacity at the time of its execution. They further submitted that the 1st petitioner was suing as an appointed attorney, not as a guardian or manager under the Mental Health Act.
30. The petitioners also opposed the contention that the petition was multifaceted, omnibus or an abuse of the court process and submitted that the fact that a petition raised several related constitutional, land and environmental issues did not deprive this court of jurisdiction. They relied on the position that the Environment and Land Court was the proper forum to determine multifaceted claims involving land, environment and constitutional rights. That the petition was supported by documentary evidence, including stoppage orders, correspondence from the Ministry, NEMA notices, and an engineer’s report, and therefore could not be dismissed as frivolous or vexatious at the preliminary stage.
31. They further contended that they had established a prima facie case with a likelihood of success. They relied on the stoppage orders issued by the County Mining Officer on 16th October 2025 and 22nd January 2026, which, according to them, confirmed that the quarry was operating without a valid mining license, was conducting unauthorized blasting, and had generated complaints from neighboring homesteads on account of noise, dust and vibrations. They further submitted that the stoppage orders were lifted on 6th February 2026, not because the quarry had complied with the law, but on account of policy considerations relating to the Affordable Housing Project.
32. The petitioners further submitted that correspondence from the Ministry of Mining dated 12th March 2026 confirmed that Simba Hydronet Lime Limited, the previous operator, had never been registered in the online cadastre system and had never held a mining license. They also submitted that the Ministry confirmed that no mining activity had ever been licensed on Kakamega/Lugari/3230, and that the 4th respondent’s application for a mining license was still under review. That NEMA had issued an Improvement Notice on 29th April 2025 requiring the quarry to comply with the law and to stop blasting activities without the consent of the neighboring community. That however, the said notice was ignored and that blasting continued, resulting in extensive structural damage to the 1st petitioner’s family home and other homes within the affected community.
33. Relying on the principles governing conservatory orders as set out in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, Wilson Kaberia Nkunja v Magistrates and Judges Vetting Board & another, and Mrao Ltd v First American Bank of Kenya Ltd & 2 others, the applicants submitted that a conservatory order is a public law remedy intended to preserve the substratum of the petition, protect constitutional values and prevent continued v
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