REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT HOMABAY

ELC CONSTITUTIONAL PETITION NO E001 OF 2022

SAMUEL O. NYAUKE.................................................................................................PETITIONER

VERSUS

THE HOMABAY SUB-COUNTY ADMINISTRATOR...................................1^ST RESPONDENT

OFFICER COMANDING POLICE DIVISION-HOMA-BAY......................2^ND RESPONDENT

HON. ATTORNEY GENERAL........................................................................3^RD RESPONDENT

ERNEST BIN AMITO.......................................................................................4^TH RESPONDENT

JOINT BASE NAVA ENTERPRISES LIMITED..........................................5^TH RESPONDENT

THE DIRECTOR GENERAL NATIONAL                                                                                      

ENVIRONEMENT MANAGEMENT AUTHORITY (NEMA)..................6^TH RESPONDENT

RULING

1. The Petitioner’s application by way of Notice of Motion dated 10^th February 2022 and duly filed herein on 15^th February 2022 is for inter-partes hearing today. The same is seeking orders, inter, alia, hearing of the application at the site of the nuisance, namely LR No. Kayada/Kotieno Katuma “A”/2991 and interim orders in quo suspending any form of music as to be played by the 5^th Respondent thereon.

2. The 5^th respondent through M/s Oluoch Amma and Co. Advocates opposed the application by grounds of opposition dated 17^th February 2022 and the supporting affidavit annexed thereto.

3. The Petitioner has sought to withdraw the application to pave way for the hearing of the Petition by way of written submissions.

4. Mr. Oluoch Ammon, learned counsel for the 5^th respondent and Mr. Robert Ochieng learned counsel for the 4^th respondent and holding brief for Mr. Joseph Maina, learned counsel for the 6^th respondent, have no objection to the Petitioner’s prayer.

5. In the premises, I find the Petitioner’s prayer merited.

6. Thus, pursuant to Order 25 Rule 1 of the Civil procedure Rules, 2010, the petitioner’s application dated 10^th February 2022 and duly filed in this court on 15^th February 2022 , is hereby marked as withdrawn. Costs be in the cause.

7. I applaud the petitioner, learned Counsel for the 4^th, 5^th and 6^th Respondents for having facilitated prompt and fair determination of the application in consonant with Article 159 (2) (b) and (c) of the Constitution of Kenya, 2010 and section 3 of the Environment Land Court Act, 2015 (2011).

8. It is further ordered and directed that this Petition dated 2^nd February 2022 and filed in court on 3^rd February 2022, be heard by way of written submissions.

9. The Petitioner’s submissions dated 2^nd February 2022 and filed herein on 2^nd February 2022, hereby deemed duly filed and served on the 4^th, 5^th and 6^th respondents. The same be served on the other respondents before the close of business today.

10. The respondents to file and serve their submissions within seven (7) days from this date.

11. The petitioner to file further or supplementary submissions, if any, within two (2) days from the date of service of the respondents’ submissions.

12. The Petition is fixed for 2^nd March 2022 for purposes of submissions and for directions.

13. It is so ordered.

G.M.A ONG’ONDO

JUDGE

Present

1. Mr. Ammon Oluoch, learned counsel for the 5^th respondent.

2. Mr. Nyauke, learned counsel, the petitioner

3. Mr. Robert Ochieng learned counsel for the 4^th respondent as well as holding brief for learned counsel Mr. Joseph Maina for the 6^th respondent.

4. Okello, court assistant.

DATED AND DELIVERED AT HOMA BAY THIS 22^ND DAY OF FEBRUARY 2022.

G.M.A ONG’ONDO

JUDGE