Introduction
1. By a Notice of Motion dated 13 th August 2026, the 2 nd interested party/applicant, Dinesh Chandulal Mokha, moved the court and sought the following orders:
a) Spent.
b) Spent
c) This Honorable Court be pleased to vacate, lift and set aside the conservatory orders restraining the quarry operations and industrial activities of the applicant, conditional upon the 4 th respondent depositing a cash-backed performance guarantee or bank bond of Kshs. 1, 462, 640/= in court as security for the respondents’ properties pending the hearing and determination of the petition herein.
d) This Honorable Court be pleased at this interim stage to issue an order permitting the 4 th respondent to operate under active scientific led statutory regulatory oversight including compliance with strict environmental risks mitigation measures.
e) This honorable court be pleased to grant further orders as it may deem fit and just in the circumstances of this case.
2. The application was premised on grounds on its face as well as the supporting and supplementary affidavits filed by the applicant and sworn by himself and one Rev. John Kadima respectively. The applicant stated that this court issued conservatory orders on 29 th July 2026 stopping the quarrying operations of the 4 th respondent and affecting the continued operation of the quarry. He contended that the orders have occasioned significant commercial and economic prejudice, including disruption of quarry operations, exposure to contractual and financial liabilities, and potential adverse consequences to the Busia county Affordable Housing Project, for which the 4 th respondent is stated to be the primary contractor. The applicant further contended that the quarry forms an integral part of the supply chain for materials required for the project.
3. The applicant argued that he had obtained new evidence which he described as scientific and expert evidence. In particular, he relied on a forensic geotechnical assessment and a multi-property structural integrity assessment which, according to him, demonstrate that the Peak Particle Velocity generated by the quarrying operations is approximately 0.42 mm/s, as compared to the stated structural damage tolerance threshold of 5.0 mm/s. He also contended that the expert evidence attributes the cracks complained of by the petitioners to soil settlement and the age of the buildings rather than the quarrying activities. The applicant also asserted that the new evidence was not available when the conservatory orders were issued.
4. He therefore contended that there was need to reconsider the conservatory orders and proposed that they be lifted conditionally, subject to the 4 th respondent implementing enhanced environmental and safety mitigation measures and addressing any scientifically established and quantified damage. He further maintained that the alleged property damage is quantifiable, citing an engineering assessment which placed the repair costs at Kshs. 1,462,640/=, and stated that a cash-backed performance guarantee or bank bond for the said amount can be provided as security. He maintained that the impugned ruling without the benefit of appreciation of the full factual impact of halting the quarry operations on the social and economic benefit to the community. Further that the order did not proportionately balance environmental and economic development needs of the area.
5. The applicant further relied on the supporting affidavit of Rev. John Kadima, the chairperson of the Local Community Development Committee and a resident living in the vicinity of the applicant's quarry. The deponent supported the resumption of the quarry’s operations and maintains that the quarry is regarded by the majority of the local community as an important economic asset. He denied that the quarrying operations cause significant noise, air pollution or damage to surrounding buildings, and attributed the existing cracks in buildings to historical weathering and contraction of the clay soils rather than to the quarrying activities.
6. He added that the closure of the quarry has deprived numerous local families, including youths and women of employment and has disrupted the applicant's corporate social responsibility initiatives, including the provision of treated water to over 300 households, maintenance of community roads and support to local schools. He consequently contended that continued closure of the quarry will occasion severe economic hardship and disruption of essential community services and urged the court to permit the applicant to resume operations under NEMA supervision pending the determination of the intended appeal.
7. The application was opposed by a replying affidavit sworn by the 1 st petitioner, Harriette Igonanga Chiggai, dated 18 th August 2026. She contended that the application was, in substance, an attempt to reopen and re-argue the court’s decision rather than a proper application for review. In particular, she challenged the reliance on the forensic geotechnical analysis dated 1 st August 2026 and the multi-property structural integrity assessment report dated 7 th August 2026, arguing that the reports were commissioned and prepared after the court’s ruling and therefore could not qualify as evidence which, despite due diligence, had previously been unavailable.
8. She further pointed out that the 4 th respondent had already filed Civil Application No. E143 of 2026 before the Court of Appeal at Kakamega seeking a stay of the conservatory orders, and contended that the grounds raised in the present application substantially overlapped with matters before the appellate court. She further contended that the new reports did not address the underlying issues concerning the legality of the 4 th respondent’s quarrying operations. She relied on correspondence from the ministry and an affidavit by the Principal Secretary, which she stated demonstrated that no mining licence had been issued and that the licensing process had only reached the stage of approval for publication.
9. She further maintained that the 4 th respondent lacked a blasting permit and landowner consent. Consequently, she argued that expert evidence concerning blasting, vibration or structural damage could not resolve questions relating to licensing, statutory authority, environmental compliance and public participation. She also urged that, if the court admitted the post-ruling expert reports, the petitioners should be given an opportunity to obtain and file independent expert evidence in response, particularly in view of the short period of four days allowed to respond to the application.
10. On the conservatory orders, she maintained that the orders were intended to preserve the subject matter and the status quo pending determination of the petition and had not determined the merits of the dispute. She argued that the potential harm to the petitioners and the environment was not adequately addressed by the proposed security of Kshs. 1,462,640/=, which she contended bore no demonstrated relationship to environmental restoration, structural damage, safety risks, loss of land or constitutional injury. She maintained that, whereas quarrying could resume and employment and revenue could be restored if the petition ultimately failed, continued quarrying could result in irreversible environmental degradation and consequences which could not subsequently be remedied if the petition succeeded.
11. In response to the supporting affidavit of Rev. John Kadima, she disputed his assertions regarding community support and the absence of noise, vibration and structural damage. She contended that the 4 th respondent’s own stakeholder meeting minutes recorded complaints concerning noise, air quality, vibration and structural damage, and argued that Rev. Kadima was not qualified to give expert evidence on geotechnical, structural or vibration-related matters. She further rejected the contention that the commercial benefits of the quarry or its alleged role in the Government’s Affordable Housing Project justified lifting the conservatory orders, maintaining that private commercial interests could not override constitutional and statutory requirements relating to licensing and environmental protection.
12. Finally, she challenged the urgency of the application, contending that the applicant had been aware of the conservatory orders since 29 th July 2026 and had therefore had sufficient opportunity to move the court earlier. She consequently urged the court to reject the application for review, decline to admit the post-ruling evidence as a basis for reopening the matter, and maintain the conservatory orders pending the determination of the petition.
13. The 4 th respondent supported the application. In its replying affidavit sworn by Samuel Otieno Bach, its operations director and dated 18 th August 2026 it maintaining that the conservatory orders ought to be discharged, lifted or varied. It further contended that the expert geotechnical and structural report annexed to the application constituted new and important evidence within the meaning of Order 45 Rule 1 of the Civil Procedure Rules. He stated that the scientific assessment had been commissioned on 10 th June 2026, before the impugned ruling, but required extensive technical field logging, soil stability monitoring and data analysis which could not be conclusively completed within the timelines applicable to the interlocutory proceedings. It was therefore contended that the evidence could not, despite due diligence, have been produced in its final form during the earlier proceedings.
14. The 4 th respondent further relied on the findings of the said expert assessment, contending that its controlled micro-blasting generated a Peak Particle Velocity of 0.42 mm/s, which it stated was significantly below the 5.0 mm/s threshold prescribed by NEMA. He maintained that the structural assessment attributed the cracks complained of by the petitioners to natural soil settlement and the age of the buildings, rather than the quarrying operations. He therefore contended that the scientific evidence had removed the uncertainty which had informed the application of the precautionary principle in the court’s ruling. He also relied on a community stakeholder consultation and grievance redress meeting held on 1 st August 2026, as well as a parliamentary report of 2022, to contend that the local community supported its operations and that some of the historical environmental complaints had been directed at a different quarry operator.
15. The 4 th respondent further relied on an ODPP report dated 12 th August 2026, which he contended had concluded investigations concerning alleged forgery relating to the parent title and found no criminal fraud in respect thereof. He also referred to a subsequent Kenya Gazette Notice concerning the processing and proposed issuance of its commercial mining licence, which he argued demonstrated that the regulatory process remained ongoing. The 4 th respondent maintained that their relationship with the 2 nd interested party was that of a vendor and purchaser in possession under an executed agreement for sale, and that the continued shutdown of its operations was causing substantial financial prejudice to both parties, including business interruption, asset depreciation and continued security and operational costs.
16. Finally, he contended that the alleged property damage was quantifiable, noting that the petitioners’ own engineering assessment had placed the cost of repairs at Kshs. 1,462,640/=. He expressed their willingness to provide a cash-backed performance guarantee or bank bond for the said amount as alternative security. He further relied on the alleged benefits of the quarry’s operations to the local community, including employment, provision of water and road maintenance, and contended that continued closure would cause greater socio-economic harm to the community. He consequently urged the court to allow the application and lift the conservatory orders, or otherwise permit resumption of their operations under NEMA regulatory oversight.
17. In response to the 4 th Respondent’s replying affidavit, the petitioners filed a supplementary affidavit dated 19 th August 2026 and sworn by the 1 st petitioner, who disputed the factual and legal assertions contained therein. She contended that the 4 th respondent’s pending appeal before the Court of Appeal ousted this court’s jurisdiction to review the conservatory orders, having elected to challenge the said orders on appeal. She further argued that the alleged expert evidence did not constitute new evidence, as the 4 th respondent had commissioned and paid for the expert reports before the conservatory proceedings concluded on 14 th July 2026.
18. She also challenged the authenticity and reliability of the annexures to the affidavit, pointing to discrepancies in the dates appearing on the alleged payment transaction, which she contended, demonstrated an attempt to mislead the Court. She further disputed the 4 th respondent’s reliance on the purported community minutes, the National Assembly report on Nzoia quarry limited, the ODPP report, and the Kenya Gazette Notice.
19. She argued that the community minutes had been prepared after the delivery of the ruling, while the National Assembly report concerned a different quarry but nevertheless confirmed the environmental concerns associated with quarrying activities. She further contended that the ODPP Report did not exonerate the 4 th respondent, as it identified an alleged forgery and recommended further investigation. She maintained that the Kenya Gazette Notice merely invited objections to the 4 th respondent’s application for a mining licence and did not constitute the grant of such a licence.
20. Finally, she argued that the 4 th respondent could not claim prejudice or financial hardship, having acquired the quarry operations with knowledge of the existing dispute and the alleged regulatory non-compliance. She opposed the proposed deposit of Kshs. 1,462,640/= as security and reiterated the averments contained in her earlier replying affidavit. She therefore urged the court to disregard the 4 th respondent’s affidavit and dismiss the application for review with costs, on the grounds that the court’s review jurisdiction had been ousted by the 4 th respondent’s appeal and that the documents annexed to the 4 th respondent’s affidavit contained material inconsistencies.
21. In a rejoinder, the 2 nd interested party/ applicant filed his supplementary affidavit responding to the petitioners’ replying affidavit. The affidavit generally sought to demonstrate that the review application was properly founded on newly available scientific evidence, that the conservatory order was disproportionate, and that its continued operation was causing him substantial financial prejudice. He stated that he was the registered proprietor of the suit properties and that the further affidavit had been filed to respond to alleged factual and legal errors in the petitioners’ replying affidavit. He denied assertions that the review application was a disguised appeal and maintained that the geotechnical and structural investigations had commenced before the ruling, with the consultants having been instructed and paid in June 2026.
22. He explained that the scientific investigations required time to generate reliable data and that the finalized reports therefore constituted new and important evidence which could not reasonably have been produced earlier. He further contended that the existence of the 4 th respondent’s pending appeal did not oust this court’s jurisdiction to entertain the review application, since no substantive record of appeal had been lodged. He maintained that his interests as an independent interested party were distinct from those of the 4 th respondent and that the review application was based on newly finalized scientific findings, including the 0.42 mm/s Peak Particle Velocity reading.
23. He argued that the petitioners had effectively admitted that the interlocutory order had been issued without verified scientific data on vibration, structural damage or environmental risk. He therefore contended that the new scientific and structural evidence satisfied the requirements for review under Order 45 Rule 1 of the Civil Procedure Rules and also constituted sufficient or justifiable reason for review. He argued that the continued conservatory order created a disproportionate socio-economic and financial burden and that the court improperly applied the precautionary principle. He maintained that the 4 th respondent had been willing to operate under regulatory or court supervision with real-time vibration monitoring, which would safeguard the environment while allowing the commercial transaction to proceed.
24. He further argued that the petitioners were seeking a final determination of disputed regulatory issues at an interlocutory stage, despite lacking verified evidence. He relied on a Kenya Gazette Notice which, according to him, showed that the Ministry of Mining had reviewed the 4 th respondent’s technical applications and approved issuance of a commercial mining licence, subject to administrative finalization. He consequently contended that any challenge to the Ministry’s administrative process ought to have been pursued through the appropriate statutory or judicial review mechanisms.
25. He maintained that the petitioners’ allegations concerning ownership, lack of consent and title fraud had been disproved by an ODPP forensic report dated 12 th August 2026, which had cleared his specified properties of fraud or forgery. He stated that the necessary environmental and stakeholder consultations had also been completed as part of the mining licence application. He further argued that the petitioners’ request for leave to engage an independent expert demonstrated that they lacked empirical evidence to support their allegations. He accused the petitioners of approbating and reprobating by rejecting his finalized scientific evidence while simultaneously seeking permission to obtain their own evidence.
26. He also contended that the petitioners had rushed to court without sufficient evidence and had subsequently shifted their case from alleged environmental and structural damage to concerns over the commercial value and depletion of minerals. He therefore argued that the petition was being used as a means of stopping the quarry operations and interfering with commercial assets.
27. He maintained that his registered ownership of the property had been confirmed and that the petitioners’ arguments on the balance of convenience were therefore misconceived. He argued that public interest litigation could not properly be used to interfere with a private commercial transaction. He further contended that the petitioners’ own quantified claim of Kshs. 1,462,640/= for structural damage demonstrated that the alleged injury was capable of monetary compensation and was therefore not irreparable. He stated that he and the 4 th respondent had offered to provide a cash bond or bank guarantee for the same amount, thereby securing the alleged loss during trial.
28. He consequently argued that a total shutdown of the quarry was unnecessary and disproportionate. With respect to the evidence of Rev. John Kadima, he maintained that the deponent was not presented as a technical expert, but as a long-term community member and community leader, whose evidence showed that the local community did not object to the quarry operations and that historical complaints had concerned a different quarry operator. He further argued that the principle of proportionality required the court to consider the separate legal and financial interests of each party.
29. He emphasized that his financial exposure as the registered owner and vendor was distinct from the 4 th respondent’s contractual obligations. He stated that the continued shutdown had left him unable to complete the land transaction in ELC Suit No. E086 of 2025, receive the purchase price or utilize his property. He argued that the verified vibration report demonstrated that there was no structural risk and that continued closure would cause severe financial harm without corresponding environmental benefit. He rejected the allegation that the review application had been filed with unreasonable delay, explaining that the ruling had been delivered on 29 th July 2026, while the definitive geotechnical and structural reports had been finalized on 7 th August 2026.
30. He maintained that the ten-day period was necessary for the consultants to process the seismograph readings and prepare reliable scientific models. Finally, he contended that Order 45 Rule 1 required an application for review to be made without unreasonable delay rather than within a fixed number of days, and that his prompt filing after receiving the finalized scientific evidence demonstrated due diligence.
31. Pursuant to court’s directions, the respective parties filed their written submissions. On record are the applicant’s and the petitioners’ submissions both dated 19 th August 2026. Parties were also accorded opportunity to highlight their submissions, which was done on 20 th August 2026.
Applicant’s submissions
32. Counsel for the applicant submitted on two matters, namely; the legal framework governing application for review of interlocutory orders; and the place and legal standing of the principle of proportionality in shaping appropriate reliefs by courts under Articles 23 (3) and 70 (2) of the Constitution of Kenya 2010. On the first issue, counsel referred to Article 159 of the Constitution and Rules 3 and 25 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, 2024 and argued that it was in the interests of justice that the conservatory orders issued on 29 th July 2026 be reviewed and or set aside on account of discovery of new and important scientific evidence which had not been available when the orders were issued. Relying on the case of Pancras T. Mpabuka v Land Registrar & 2 Others [2018] e KLR, the applicant argued that due diligence does not require a litigant to perform the impossible.
33. He argued that the forensic assessment had required extended seismographic data collection and had only been completed on 7 th August 2026. He therefore maintained that the evidence could not, despite due diligence, have been produced earlier and that the application for review had been made without unreasonable delay. To buttress this position counsel relied on the case of Abdi Ali v Ahmed Mohammed [2021] KECA 14 (KLR). Counsel maintained that the admission by the petitioner that the applicant’s scientific report was nonexistent at the interlocutory stage confirmed that the impugned order was issued in a complete scientific vacuum.
34. The applicant’s counsel further submitted that the existence of parallel proceedings before the Court of Appeal did not deprive this court of jurisdiction to review its interlocutory orders. He argued that a notice of appeal or an application for stay did not constitute the filing of a substantive appeal sufficient to oust the trial court’s review jurisdiction. Reliance was placed on the case of Multichoice Kenya Ltd v Wananchi Group Kenya Ltd & 2 Others [2020] KECA 633 (KLR) for the proposition that a notice of appeal or an application for intermediate relief under Rule 5 (2) (b) of the Court of Appeal Rules does not constitute a “preferred appeal”.
35. Citing section 8 of the Environment and Land Court Act as well as the case of Ndambiri & Another v Nairobi Metropolitan Services & 6 Others ELC Petition No. E026 OF 2022, counsel maintained that the Environment and Land Court ought to relax the strict application of review principles in respect of variation of injunctive orders by application of the precautionary principle in regard to ongoing impact of public works on the ecosystem. He also submitted that the court ought to have respected the statutory mandate of the relevant regulatory authorities and that any challenge to the mining licensing process ought to have been pursued through the mechanisms provided under the Mining Act.
36. On the second issue, counsel submitted that the court ought to have applied a proportionate balance between environmental protection as against the socio-economic consequences of stopping the quarry operations, but failed to do so in the impugned ruling. He proposed that, instead of maintaining an absolute prohibition, the court could have permitted the quarry operations to resume subject to strict environmental safeguards, scientific monitoring, regulatory oversight and a performance guarantee or bank bond of Kshs. 1,462,640/=.
37. He referred to the court’s power to fashion structural and supervisory orders that would protect environmental rights while accommodating competing public and socio-economic interests. Counsel referred to Articles 10 (2) and 69 (1) of the Constitution of Kenya 2010 and argued that the court ought to uphold a proportionate balance between sustainable exploitation of natural resources and environmental conservation. Regarding what constituted public interest, the Court was referred to among others, the case of Gachagua & 7 Others v Speaker, National Assembly & 5 Others; Law Society of Kenya & Another (Interested Parties) [2024] KENC 13752 (KLR) (23 October 2024) (Ruling).
38. Counsel maintained that this court ought to have considered granting structural interdicts so as to give a proportionate balance between environmental protection and socio-economic benefit. In this respect, the court was referred to the case of Mitu-Bell Welfare Society v Kenya Airports Authority & 2 Others; Initiatives for strategic Litigation in Africa (Amicus Curiae (Petition 3 of 2018) [2021] KESC 34 (KLR) (11 January 2021) (Judgment). Counsel also referred to the case of Centre for Rights Education and Awareness (CREAW) & 7 Others [2011] e KLR among others and argued that for a court to grant conservatory orders the applicant ought to demonstrate real danger that he will suffer prejudice.
39. Therefore, it was submitted for the applicant that the petitioners had not demonstrated a real, imminent and actual danger warranting the continued grant of conservatory relief, as opposed to a remote or speculative threat. He further contended that the licensing process had not been completed and that the dispute was therefore not yet ripe for determination. Relying on the principles of separation of powers, and exhaustion and ripeness, he urged the court to avoid premature interference with the statutory regulatory process and to vary the conservatory orders in a manner that balanced the competing interests.
Petitioners’ submissions
40. Counsel for the petitioners opposed the application for review arguing that it was devoid of merit, constituted an abuse of the court process, and was essentially a disguised appeal against the conservatory orders issued on 29 th July 2026. Regarding the legal threshold for review, counsel submitted that under section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, review was only available on the grounds of discovery of new and important evidence which could not, despite due diligence, have been produced earlier; an error apparent on the face of the record; or any other sufficient reason. Relying on authorities including National Bank of Kenya Ltd v Njau [197] KECA 71 (KLR) and Rose Kaiza v Angelo Mpanju Kaiza [2009] KECA 422 (KLR), counsel contended that review could not be used to re-argue or reopen a matter that had already been determined and for the ground of discovery of new and important evidence an applicant ought to demonstrate that they exercised due diligence in obtaining the evidence but failed.
41. On behalf of the petitioner, counsel particularly challenged the two expert reports relied upon by the applicant, namely the Forensic Geotechnical analysis dated 1 st August 2026 and the Multi-Property Structural Integrity Assessment report dated 7 th August 2026. They pointed out that both reports had been prepared after the court had delivered its ruling on 29 th July 2026 and therefore did not constitute evidence that had existed but had been undiscoverable at the time of the hearing. They argued that the reports amounted to newly generated evidence rather than newly discovered evidence and could not form the basis of a review. The court was referred to the case of David & Others v Bakaya [2025] KEHC 12790 (KLR) for the proposition that evidence obtained after judgment cannot form the basis of a review application.
42. The petitioners further contended that the applicant had had an opportunity to participate in the proceedings but had not filed a replying affidavit or notified the court that expert evidence was being commissioned. Review, they submitted, could not be used to remedy the applicant’s own evidential omissions. They further submitted that there had been no error apparent on the face of the record, since the court’s ruling had been based on the evidence and submissions properly before it, including the petitioners’ engineer’s report which had attributed the structural damage to quarry blasting. They also argued that commercial prejudice did not constitute “any other sufficient reason” for purposes of review.
43. He argued that conservatory orders had been intended to preserve the subject matter and prevent potentially irreversible harm pending determination of the petition. Counsel maintained that the proposed security of Kshs. 1,462,640/= had not addressed the environmental, structura
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1. By a Notice of Motion dated 13 th August 2026, the 2 nd interested party/applicant, Dinesh Chandulal Mokha, moved the court and sought the following orders:
a) Spent.
b) Spent
c) This Honorable Court be pleased to vacate, lift and set aside the conservatory orders restraining the quarry operations and industrial activities of the applicant, conditional upon the 4 th respondent depositing a cash-backed performance guarantee or bank bond of Kshs. 1, 462, 640/= in court as security for the respondents’ properties pending the hearing and determination of the petition herein.
d) This Honorable Court be pleased at this interim stage to issue an order permitting the 4 th respondent to operate under active scientific led statutory regulatory oversight including compliance with strict environmental risks mitigation measures.
e) This honorable court be pleased to grant further orders as it may deem fit and just in the circumstances of this case.
2. The application was premised on grounds on its face as well as the supporting and supplementary affidavits filed by the applicant and sworn by himself and one Rev. John Kadima respectively. The applicant stated that this court issued conservatory orders on 29 th July 2026 stopping the quarrying operations of the 4 th respondent and affecting the continued operation of the quarry. He contended that the orders have occasioned significant commercial and economic prejudice, including disruption of quarry operations, exposure to contractual and financial liabilities, and potential adverse consequences to the Busia county Affordable Housing Project, for which the 4 th respondent is stated to be the primary contractor. The applicant further contended that the quarry forms an integral part of the supply chain for materials required for the project.
3. The applicant argued that he had obtained new evidence which he described as scientific and expert evidence. In particular, he relied on a forensic geotechnical assessment and a multi-property structural integrity assessment which, according to him, demonstrate that the Peak Particle Velocity generated by the quarrying operations is approximately 0.42 mm/s, as compared to the stated structural damage tolerance threshold of 5.0 mm/s. He also contended that the expert evidence attributes the cracks complained of by the petitioners to soil settlement and the age of the buildings rather than the quarrying activities. The applicant also asserted that the new evidence was not available when the conservatory orders were issued.
4. He therefore contended that there was need to reconsider the conservatory orders and proposed that they be lifted conditionally, subject to the 4 th respondent implementing enhanced environmental and safety mitigation measures and addressing any scientifically established and quantified damage. He further maintained that the alleged property damage is quantifiable, citing an engineering assessment which placed the repair costs at Kshs. 1,462,640/=, and stated that a cash-backed performance guarantee or bank bond for the said amount can be provided as security. He maintained that the impugned ruling without the benefit of appreciation of the full factual impact of halting the quarry operations on the social and economic benefit to the community. Further that the order did not proportionately balance environmental and economic development needs of the area.
5. The applicant further relied on the supporting affidavit of Rev. John Kadima, the chairperson of the Local Community Development Committee and a resident living in the vicinity of the applicant's quarry. The deponent supported the resumption of the quarry’s operations and maintains that the quarry is regarded by the majority of the local community as an important economic asset. He denied that the quarrying operations cause significant noise, air pollution or damage to surrounding buildings, and attributed the existing cracks in buildings to historical weathering and contraction of the clay soils rather than to the quarrying activities.
6. He added that the closure of the quarry has deprived numerous local families, including youths and women of employment and has disrupted the applicant's corporate social responsibility initiatives, including the provision of treated water to over 300 households, maintenance of community roads and support to local schools. He consequently contended that continued closure of the quarry will occasion severe economic hardship and disruption of essential community services and urged the court to permit the applicant to resume operations under NEMA supervision pending the determination of the intended appeal.
7. The application was opposed by a replying affidavit sworn by the 1 st petitioner, Harriette Igonanga Chiggai, dated 18 th August 2026. She contended that the application was, in substance, an attempt to reopen and re-argue the court’s decision rather than a proper application for review. In particular, she challenged the reliance on the forensic geotechnical analysis dated 1 st August 2026 and the multi-property structural integrity assessment report dated 7 th August 2026, arguing that the reports were commissioned and prepared after the court’s ruling and therefore could not qualify as evidence which, despite due diligence, had previously been unavailable.
8. She further pointed out that the 4 th respondent had already filed Civil Application No. E143 of 2026 before the Court of Appeal at Kakamega seeking a stay of the conservatory orders, and contended that the grounds raised in the present application substantially overlapped with matters before the appellate court. She further contended that the new reports did not address the underlying issues concerning the legality of the 4 th respondent’s quarrying operations. She relied on correspondence from the ministry and an affidavit by the Principal Secretary, which she stated demonstrated that no mining licence had been issued and that the licensing process had only reached the stage of approval for publication.
9. She further maintained that the 4 th respondent lacked a blasting permit and landowner consent. Consequently, she argued that expert evidence concerning blasting, vibration or structural damage could not resolve questions relating to licensing, statutory authority, environmental compliance and public participation. She also urged that, if the court admitted the post-ruling expert reports, the petitioners should be given an opportunity to obtain and file independent expert evidence in response, particularly in view of the short period of four days allowed to respond to the application.
10. On the conservatory orders, she maintained that the orders were intended to preserve the subject matter and the status quo pending determination of the petition and had not determined the merits of the dispute. She argued that the potential harm to the petitioners and the environment was not adequately addressed by the proposed security of Kshs. 1,462,640/=, which she contended bore no demonstrated relationship to environmental restoration, structural damage, safety risks, loss of land or constitutional injury. She maintained that, whereas quarrying could resume and employment and revenue could be restored if the petition ultimately failed, continued quarrying could result in irreversible environmental degradation and consequences which could not subsequently be remedied if the petition succeeded.
11. In response to the supporting affidavit of Rev. John Kadima, she disputed his assertions regarding community support and the absence of noise, vibration and structural damage. She contended that the 4 th respondent’s own stakeholder meeting minutes recorded complaints concerning noise, air quality, vibration and structural damage, and argued that Rev. Kadima was not qualified to give expert evidence on geotechnical, structural or vibration-related matters. She further rejected the contention that the commercial benefits of the quarry or its alleged role in the Government’s Affordable Housing Project justified lifting the conservatory orders, maintaining that private commercial interests could not override constitutional and statutory requirements relating to licensing and environmental protection.
12. Finally, she challenged the urgency of the application, contending that the applicant had been aware of the conservatory orders since 29 th July 2026 and had therefore had sufficient opportunity to move the court earlier. She consequently urged the court to reject the application for review, decline to admit the post-ruling evidence as a basis for reopening the matter, and maintain the conservatory orders pending the determination of the petition.
13. The 4 th respondent supported the application. In its replying affidavit sworn by Samuel Otieno Bach, its operations director and dated 18 th August 2026 it maintaining that the conservatory orders ought to be discharged, lifted or varied. It further contended that the expert geotechnical and structural report annexed to the application constituted new and important evidence within the meaning of Order 45 Rule 1 of the Civil Procedure Rules. He stated that the scientific assessment had been commissioned on 10 th June 2026, before the impugned ruling, but required extensive technical field logging, soil stability monitoring and data analysis which could not be conclusively completed within the timelines applicable to the interlocutory proceedings. It was therefore contended that the evidence could not, despite due diligence, have been produced in its final form during the earlier proceedings.
14. The 4 th respondent further relied on the findings of the said expert assessment, contending that its controlled micro-blasting generated a Peak Particle Velocity of 0.42 mm/s, which it stated was significantly below the 5.0 mm/s threshold prescribed by NEMA. He maintained that the structural assessment attributed the cracks complained of by the petitioners to natural soil settlement and the age of the buildings, rather than the quarrying operations. He therefore contended that the scientific evidence had removed the uncertainty which had informed the application of the precautionary principle in the court’s ruling. He also relied on a community stakeholder consultation and grievance redress meeting held on 1 st August 2026, as well as a parliamentary report of 2022, to contend that the local community supported its operations and that some of the historical environmental complaints had been directed at a different quarry operator.
15. The 4 th respondent further relied on an ODPP report dated 12 th August 2026, which he contended had concluded investigations concerning alleged forgery relating to the parent title and found no criminal fraud in respect thereof. He also referred to a subsequent Kenya Gazette Notice concerning the processing and proposed issuance of its commercial mining licence, which he argued demonstrated that the regulatory process remained ongoing. The 4 th respondent maintained that their relationship with the 2 nd interested party was that of a vendor and purchaser in possession under an executed agreement for sale, and that the continued shutdown of its operations was causing substantial financial prejudice to both parties, including business interruption, asset depreciation and continued security and operational costs.
16. Finally, he contended that the alleged property damage was quantifiable, noting that the petitioners’ own engineering assessment had placed the cost of repairs at Kshs. 1,462,640/=. He expressed their willingness to provide a cash-backed performance guarantee or bank bond for the said amount as alternative security. He further relied on the alleged benefits of the quarry’s operations to the local community, including employment, provision of water and road maintenance, and contended that continued closure would cause greater socio-economic harm to the community. He consequently urged the court to allow the application and lift the conservatory orders, or otherwise permit resumption of their operations under NEMA regulatory oversight.
17. In response to the 4 th Respondent’s replying affidavit, the petitioners filed a supplementary affidavit dated 19 th August 2026 and sworn by the 1 st petitioner, who disputed the factual and legal assertions contained therein. She contended that the 4 th respondent’s pending appeal before the Court of Appeal ousted this court’s jurisdiction to review the conservatory orders, having elected to challenge the said orders on appeal. She further argued that the alleged expert evidence did not constitute new evidence, as the 4 th respondent had commissioned and paid for the expert reports before the conservatory proceedings concluded on 14 th July 2026.
18. She also challenged the authenticity and reliability of the annexures to the affidavit, pointing to discrepancies in the dates appearing on the alleged payment transaction, which she contended, demonstrated an attempt to mislead the Court. She further disputed the 4 th respondent’s reliance on the purported community minutes, the National Assembly report on Nzoia quarry limited, the ODPP report, and the Kenya Gazette Notice.
19. She argued that the community minutes had been prepared after the delivery of the ruling, while the National Assembly report concerned a different quarry but nevertheless confirmed the environmental concerns associated with quarrying activities. She further contended that the ODPP Report did not exonerate the 4 th respondent, as it identified an alleged forgery and recommended further investigation. She maintained that the Kenya Gazette Notice merely invited objections to the 4 th respondent’s application for a mining licence and did not constitute the grant of such a licence.
20. Finally, she argued that the 4 th respondent could not claim prejudice or financial hardship, having acquired the quarry operations with knowledge of the existing dispute and the alleged regulatory non-compliance. She opposed the proposed deposit of Kshs. 1,462,640/= as security and reiterated the averments contained in her earlier replying affidavit. She therefore urged the court to disregard the 4 th respondent’s affidavit and dismiss the application for review with costs, on the grounds that the court’s review jurisdiction had been ousted by the 4 th respondent’s appeal and that the documents annexed to the 4 th respondent’s affidavit contained material inconsistencies.
21. In a rejoinder, the 2 nd interested party/ applicant filed his supplementary affidavit responding to the petitioners’ replying affidavit. The affidavit generally sought to demonstrate that the review application was properly founded on newly available scientific evidence, that the conservatory order was disproportionate, and that its continued operation was causing him substantial financial prejudice. He stated that he was the registered proprietor of the suit properties and that the further affidavit had been filed to respond to alleged factual and legal errors in the petitioners’ replying affidavit. He denied assertions that the review application was a disguised appeal and maintained that the geotechnical and structural investigations had commenced before the ruling, with the consultants having been instructed and paid in June 2026.
22. He explained that the scientific investigations required time to generate reliable data and that the finalized reports therefore constituted new and important evidence which could not reasonably have been produced earlier. He further contended that the existence of the 4 th respondent’s pending appeal did not oust this court’s jurisdiction to entertain the review application, since no substantive record of appeal had been lodged. He maintained that his interests as an independent interested party were distinct from those of the 4 th respondent and that the review application was based on newly finalized scientific findings, including the 0.42 mm/s Peak Particle Velocity reading.
23. He argued that the petitioners had effectively admitted that the interlocutory order had been issued without verified scientific data on vibration, structural damage or environmental risk. He therefore contended that the new scientific and structural evidence satisfied the requirements for review under Order 45 Rule 1 of the Civil Procedure Rules and also constituted sufficient or justifiable reason for review. He argued that the continued conservatory order created a disproportionate socio-economic and financial burden and that the court improperly applied the precautionary principle. He maintained that the 4 th respondent had been willing to operate under regulatory or court supervision with real-time vibration monitoring, which would safeguard the environment while allowing the commercial transaction to proceed.
24. He further argued that the petitioners were seeking a final determination of disputed regulatory issues at an interlocutory stage, despite lacking verified evidence. He relied on a Kenya Gazette Notice which, according to him, showed that the Ministry of Mining had reviewed the 4 th respondent’s technical applications and approved issuance of a commercial mining licence, subject to administrative finalization. He consequently contended that any challenge to the Ministry’s administrative process ought to have been pursued through the appropriate statutory or judicial review mechanisms.
25. He maintained that the petitioners’ allegations concerning ownership, lack of consent and title fraud had been disproved by an ODPP forensic report dated 12 th August 2026, which had cleared his specified properties of fraud or forgery. He stated that the necessary environmental and stakeholder consultations had also been completed as part of the mining licence application. He further argued that the petitioners’ request for leave to engage an independent expert demonstrated that they lacked empirical evidence to support their allegations. He accused the petitioners of approbating and reprobating by rejecting his finalized scientific evidence while simultaneously seeking permission to obtain their own evidence.
26. He also contended that the petitioners had rushed to court without sufficient evidence and had subsequently shifted their case from alleged environmental and structural damage to concerns over the commercial value and depletion of minerals. He therefore argued that the petition was being used as a means of stopping the quarry operations and interfering with commercial assets.
27. He maintained that his registered ownership of the property had been confirmed and that the petitioners’ arguments on the balance of convenience were therefore misconceived. He argued that public interest litigation could not properly be used to interfere with a private commercial transaction. He further contended that the petitioners’ own quantified claim of Kshs. 1,462,640/= for structural damage demonstrated that the alleged injury was capable of monetary compensation and was therefore not irreparable. He stated that he and the 4 th respondent had offered to provide a cash bond or bank guarantee for the same amount, thereby securing the alleged loss during trial.
28. He consequently argued that a total shutdown of the quarry was unnecessary and disproportionate. With respect to the evidence of Rev. John Kadima, he maintained that the deponent was not presented as a technical expert, but as a long-term community member and community leader, whose evidence showed that the local community did not object to the quarry operations and that historical complaints had concerned a different quarry operator. He further argued that the principle of proportionality required the court to consider the separate legal and financial interests of each party.
29. He emphasized that his financial exposure as the registered owner and vendor was distinct from the 4 th respondent’s contractual obligations. He stated that the continued shutdown had left him unable to complete the land transaction in ELC Suit No. E086 of 2025, receive the purchase price or utilize his property. He argued that the verified vibration report demonstrated that there was no structural risk and that continued closure would cause severe financial harm without corresponding environmental benefit. He rejected the allegation that the review application had been filed with unreasonable delay, explaining that the ruling had been delivered on 29 th July 2026, while the definitive geotechnical and structural reports had been finalized on 7 th August 2026.
30. He maintained that the ten-day period was necessary for the consultants to process the seismograph readings and prepare reliable scientific models. Finally, he contended that Order 45 Rule 1 required an application for review to be made without unreasonable delay rather than within a fixed number of days, and that his prompt filing after receiving the finalized scientific evidence demonstrated due diligence.
31. Pursuant to court’s directions, the respective parties filed their written submissions. On record are the applicant’s and the petitioners’ submissions both dated 19 th August 2026. Parties were also accorded opportunity to highlight their submissions, which was done on 20 th August 2026.
Applicant’s submissions
32. Counsel for the applicant submitted on two matters, namely; the legal framework governing application for review of interlocutory orders; and the place and legal standing of the principle of proportionality in shaping appropriate reliefs by courts under Articles 23 (3) and 70 (2) of the Constitution of Kenya 2010. On the first issue, counsel referred to Article 159 of the Constitution and Rules 3 and 25 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, 2024 and argued that it was in the interests of justice that the conservatory orders issued on 29 th July 2026 be reviewed and or set aside on account of discovery of new and important scientific evidence which had not been available when the orders were issued. Relying on the case of Pancras T. Mpabuka v Land Registrar & 2 Others [2018] e KLR, the applicant argued that due diligence does not require a litigant to perform the impossible.
33. He argued that the forensic assessment had required extended seismographic data collection and had only been completed on 7 th August 2026. He therefore maintained that the evidence could not, despite due diligence, have been produced earlier and that the application for review had been made without unreasonable delay. To buttress this position counsel relied on the case of Abdi Ali v Ahmed Mohammed [2021] KECA 14 (KLR). Counsel maintained that the admission by the petitioner that the applicant’s scientific report was nonexistent at the interlocutory stage confirmed that the impugned order was issued in a complete scientific vacuum.
34. The applicant’s counsel further submitted that the existence of parallel proceedings before the Court of Appeal did not deprive this court of jurisdiction to review its interlocutory orders. He argued that a notice of appeal or an application for stay did not constitute the filing of a substantive appeal sufficient to oust the trial court’s review jurisdiction. Reliance was placed on the case of Multichoice Kenya Ltd v Wananchi Group Kenya Ltd & 2 Others [2020] KECA 633 (KLR) for the proposition that a notice of appeal or an application for intermediate relief under Rule 5 (2) (b) of the Court of Appeal Rules does not constitute a “preferred appeal”.
35. Citing section 8 of the Environment and Land Court Act as well as the case of Ndambiri & Another v Nairobi Metropolitan Services & 6 Others ELC Petition No. E026 OF 2022, counsel maintained that the Environment and Land Court ought to relax the strict application of review principles in respect of variation of injunctive orders by application of the precautionary principle in regard to ongoing impact of public works on the ecosystem. He also submitted that the court ought to have respected the statutory mandate of the relevant regulatory authorities and that any challenge to the mining licensing process ought to have been pursued through the mechanisms provided under the Mining Act.
36. On the second issue, counsel submitted that the court ought to have applied a proportionate balance between environmental protection as against the socio-economic consequences of stopping the quarry operations, but failed to do so in the impugned ruling. He proposed that, instead of maintaining an absolute prohibition, the court could have permitted the quarry operations to resume subject to strict environmental safeguards, scientific monitoring, regulatory oversight and a performance guarantee or bank bond of Kshs. 1,462,640/=.
37. He referred to the court’s power to fashion structural and supervisory orders that would protect environmental rights while accommodating competing public and socio-economic interests. Counsel referred to Articles 10 (2) and 69 (1) of the Constitution of Kenya 2010 and argued that the court ought to uphold a proportionate balance between sustainable exploitation of natural resources and environmental conservation. Regarding what constituted public interest, the Court was referred to among others, the case of Gachagua & 7 Others v Speaker, National Assembly & 5 Others; Law Society of Kenya & Another (Interested Parties) [2024] KENC 13752 (KLR) (23 October 2024) (Ruling).
38. Counsel maintained that this court ought to have considered granting structural interdicts so as to give a proportionate balance between environmental protection and socio-economic benefit. In this respect, the court was referred to the case of Mitu-Bell Welfare Society v Kenya Airports Authority & 2 Others; Initiatives for strategic Litigation in Africa (Amicus Curiae (Petition 3 of 2018) [2021] KESC 34 (KLR) (11 January 2021) (Judgment). Counsel also referred to the case of Centre for Rights Education and Awareness (CREAW) & 7 Others [2011] e KLR among others and argued that for a court to grant conservatory orders the applicant ought to demonstrate real danger that he will suffer prejudice.
39. Therefore, it was submitted for the applicant that the petitioners had not demonstrated a real, imminent and actual danger warranting the continued grant of conservatory relief, as opposed to a remote or speculative threat. He further contended that the licensing process had not been completed and that the dispute was therefore not yet ripe for determination. Relying on the principles of separation of powers, and exhaustion and ripeness, he urged the court to avoid premature interference with the statutory regulatory process and to vary the conservatory orders in a manner that balanced the competing interests.
Petitioners’ submissions
40. Counsel for the petitioners opposed the application for review arguing that it was devoid of merit, constituted an abuse of the court process, and was essentially a disguised appeal against the conservatory orders issued on 29 th July 2026. Regarding the legal threshold for review, counsel submitted that under section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, review was only available on the grounds of discovery of new and important evidence which could not, despite due diligence, have been produced earlier; an error apparent on the face of the record; or any other sufficient reason. Relying on authorities including National Bank of Kenya Ltd v Njau [197] KECA 71 (KLR) and Rose Kaiza v Angelo Mpanju Kaiza [2009] KECA 422 (KLR), counsel contended that review could not be used to re-argue or reopen a matter that had already been determined and for the ground of discovery of new and important evidence an applicant ought to demonstrate that they exercised due diligence in obtaining the evidence but failed.
41. On behalf of the petitioner, counsel particularly challenged the two expert reports relied upon by the applicant, namely the Forensic Geotechnical analysis dated 1 st August 2026 and the Multi-Property Structural Integrity Assessment report dated 7 th August 2026. They pointed out that both reports had been prepared after the court had delivered its ruling on 29 th July 2026 and therefore did not constitute evidence that had existed but had been undiscoverable at the time of the hearing. They argued that the reports amounted to newly generated evidence rather than newly discovered evidence and could not form the basis of a review. The court was referred to the case of David & Others v Bakaya [2025] KEHC 12790 (KLR) for the proposition that evidence obtained after judgment cannot form the basis of a review application.
42. The petitioners further contended that the applicant had had an opportunity to participate in the proceedings but had not filed a replying affidavit or notified the court that expert evidence was being commissioned. Review, they submitted, could not be used to remedy the applicant’s own evidential omissions. They further submitted that there had been no error apparent on the face of the record, since the court’s ruling had been based on the evidence and submissions properly before it, including the petitioners’ engineer’s report which had attributed the structural damage to quarry blasting. They also argued that commercial prejudice did not constitute “any other sufficient reason” for purposes of review.
43. He argued that conservatory orders had been intended to preserve the subject matter and prevent potentially irreversible harm pending determination of the petition. Counsel maintained that the proposed security of Kshs. 1,462,640/= had not addressed the environmental, structura
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