1.Before me is the plaintiffs’ application dated January 5, 2023 prays for the following orders;1.Spent.2.That interim orders be issued granting temporary injunction against the respondents or any other person claiming under them from, interfering, dealing, seizing, evicting and/or demolishing of the applicants’ property or interfering with the applicants’ peaceful occupation of the property Land Parcel Nairobi/Block/106 (Nairobi Dam) pending hearing and determination of this Application.3.That interim orders be issued granting temporary injunction against the respondents or any other person claiming under them from, interfering, dealing, seizing, evicting and/or demolishing of the applicants’ property or interfering with the applicants’ peaceful occupation of the property Land Parcel Nairobi/Block/106 (Nairobi Dam) pending hearing and determination of this suit.4.That interim orders be issued granting temporary injunction against hearing, debating and issuance of directions on the Petition by the 4th Defendant dated November 14, 2022 pending hearing and determination of this application.5.That interim orders be issued granting temporary injunction against hearing, debating and issuance of directions on the Petition by the 4th Defendant dated November 14th November 2022 pending hearing and determination of this suit.6.That the court visits the church site and examines for itself the status of the matter.7.That the area OCS or officer of similar rank do ensure compliance of these orders.8.That the honourable court is free to make any and all such orders in furtherance of the above as it deem fit.
2.The application is supported by the affidavit of Thomas Njuguna the 2nd applicant in which he depones that the church has been in occupation of Nairobi/Block/106 by dint of a Temporary Occupation License that was granted on September 1, 2018. The 2nd applicant depones that the chairman of the 4th Respondent has had altercations with the church members over their occupation of the suit property.
3.The applicant avers that in furtherance of the simmering dispute that the applicants had with the 4th Respondent the Respondent filed a petition to the 1st Respondent who has now issued a directive that the Plaintiffs vacate the said property. This is in spite of the fact that the Plaintiffs are in lawful occupation and are paying rates for the said property. The plaintiffs pray for injunctive orders.
4.The 1st Defendant filed a notice of preliminary objection that the court lacks jurisdiction to handle this matter in view of Sections 125 and Section 129 of the Environmental Management and Coordination Act. Counsel for the 1st Defendant filed submissions in which it was deponed that any decision by the 1st Defendant should at first instance be heard by the Tribunal. Counsel referred the court to numerous decisions where the courts have held as much.
5.The 2nd and 3rd Defendants filed a defence in which they admitted the court has jurisdiction. They did not file any response or submissions.
6.The 4th Defendant through its chairman filed a Replying Affidavit which centered around the argument that this court does not at first instance have jurisdiction to hear the matter.
7.The counsel for the 5th Defendant filed submissions in which he cited numerous case law that the courts have given on this issue.
8.From the foregoing the only issue the court has to determine at this stage is whether the court has jurisdiction to determine this matter.
9.In determining the question of jurisdiction, it is important to appreciate the prayers sought by the plaintiffs. The plaint seeks an order injunction restraining the Defendants and or any other person from interfering, dealing, seizing, evicting and or demolishing the plaintiffs property or interfering with the plaintiffs peaceful occupation of Nairobi/ Block / 106 ( Nairobi Dam).
10.Section 129 of the Environmental Management and Co-ordination Act provides that:-(1)Any person who is aggrieved by—a.the grant of a licence or permit or a refusal to grant a licence or permit, or the transfer of a licence or permit, under this Act or its regulation;b.the imposition of any condition, limitation or restriction on his licence under this Act or regulations;c.the revocation, suspension or variation of his licence under this Act or regulations;d.the amount of money which he is required to pay as a fee under this Act or regulations;e.the imposition against him of an environmental restoration order or environmental improvement order by the Authority under this Act or regulations;may within sixty days after the occurrence of the event against which he is dissatisfied, appeal to the Tribunal in such manner as may be prescribed by the Tribunal.
11.It is evident that the National Environmental Tribunal is the body that is clothed with jurisdiction to determine at first instance the any appeals against a grant of a licence. The jurisdiction of the Environment and Land Court is appellate as provided by Section 130 of the Environmental Management and Coordination Act.
12.This court and other Superior Courts have had occasion to speak loudly and clearly on this issue.
14.Similarly, in the case of Patrick Musumba vs NLC & 4 Others  eKLR the court relied on the Court of Appeal decision in Republic vs NEMA Experte Sound Equipment Ltd  eKLR where the court was categorical that:-
17.The question then is whether the plaintiffs in this suit have brought before this court an issue which should be addressed in the tribunal. It is clear from a plain reading of the plaint that the issues giving rise to the cause of action in this case go far beyond the issues which can be addressed at the Tribunal. There are issues around several acts by the 4th Defendant which have interfered with the Plaintiffs quiet possession of the suit property. These averments are uncontroverted in entirety by the 4th Defendant who chose to only address the jurisdiction issue.
18.Having considered the foregoing, I find that the cause of action is largely due to a dispute between the plaintiffs and the 4th Defendant arising from an occupational license granted to the plaintiffs. This court is the right forum to hear the matter.
19.Consequently, I find that the Preliminary Objection has no merit and is dismissed. Costs to abide the determination of the suit.