Whether the Honorable court is seized and/or possessed of the requisite Jurisdiction to entertain the subject suit or otherwise.
21.Learned counsel for the 1st and 2nd Respondents has contended that this court is devoid and/or divested of the requisite jurisdiction to entertain and/or adjudicate upon the subject dispute and by extension the instant application seeking, inter-alia, issuance of conservatory orders.
22.Given the significance and legal implication of Jurisdiction to any proceedings being taken before a court of law, it is thus imperative to ascertain and/or discern whether or not this court is seized of the requisite jurisdiction, before venturing to interrogate the merits or otherwise of the issues ventilated before the court.
23.In any event, it is not lost on this court that the Jurisdiction of a court must be clearly provided for and donated by the constitution or the Constitutive Act, or both; and where the court has not been clothed with the requisite jurisdiction, the court cannot arrogate unto himself or herself Jurisdiction by way of craft, innovation or such other endeavors, not known to law.
24.To this end, it is appropriate to adopt, restate and reiterate the succinct exposition of the law by the Supreme Court in the case of S K Macharia versus Kenya Commercial Bank Ltd & Another (2012)eKLR, where the court at paragraph 68 of the decision stated and held thus;(68)A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings. This Court dealt with the question of jurisdiction extensively in, In the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011. Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation.Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.
25.Furthermore, I am alive to the position that where a court is divested of jurisdiction, any proceedings and orders made in the absence of such Jurisdiction become annulity and thus void ab initio; for all intents and purposes.
26.In this respect, the enunciation of the law by the Court of Appeal in the case of Phoenix of E.A. Assurance Company Limited versus S. M. Thiga t/a Newspaper Service  eKLR, are succinct and apt.
27.For coherence, the court stated and observed as hereunder;1.At the heart of this appeal is the issue of jurisdiction. It is a truism jurisdiction is everything and is what gives a court or a tribunal the power, authority and legitimacy to entertain any matter before it. What is jurisdiction?2.In common English parlance, ‘Jurisdiction’ denotes the authority or power to hear and determine judicial disputes, or to even take cognizance of the same. This definition clearly shows that before a court can be seized of a matter, it must satisfy itself that it has authority to hear it and make a determination. If a court therefore proceeds to hear a dispute without jurisdiction, then the result will be a nullity ab initio and any determination made by such court will be amenable to being set aside ex debito justitiae. It is for this reason that this Court has to deal with this appeal first as the result directly impacts Civil Appeal No.6 of 2018 which is related to this one. We shall advert to this issue later. In the meantime, it is important to put this appeal in context.
28.Having made the foregoing remarks, nay, observations, it is now appropriate to return to the dispute beforehand and to ascertain whether the issues canvassed by the Applicant fall within the Jurisdiction of this court or otherwise.
29.At the center of the complaint by the Applicant is the issue whether or not the 1st and 2nd Respondents, who are the proponents of the impugned project, have procured and obtained the Environment Impact Assessment License (EIA) from National Environment Management Authority; the change of user approval from the Planning Authority, namely, the City County Government of Nairobi or such other necessary approvals.
30.It is instructive to note that despite the complaints by and on behalf of the Applicant that no such licenses and/or approvals have been procured and obtained by the 1st and 2nd Respondents, the named Respondents failed to avail and/or tender before the court any such license and/or approval at all.
31.Notably, if the 1st and 2nd Respondents had procured and obtained the necessary license and approvals from NEMA or the Planning Authority, in compliance with the provisions of EMCA, 1999 and the Physical and Land Use Planning Act, 2019, respectively, then nothing would have been easier than the named Respondents availing and showing unto the court the licenses and approvals, if any.
32.Importantly, it is appropriate to underscore that such licenses and/or approvals, if any, were issued and/or granted would be under the custody of the 1st and 2nd Respondents and thus same would assume the Responsibility to tender the licenses/approvals to court, in the event of a dispute arising concerning whether or not, such license or approval were ever issued.
33.Pertinently, where certain facts and/or information are peculiarly within the knowledge of a particular person or organization, then the burden of proving such peculiar/ special facts is cast upon such a person. Instructively, the provisions of Section 112 of the Evidence Act, Chapter 80 Laws of Kenya are Explicit.
34.For ease of reference, the provisions of Section 112 of the Evidence Act, are reproduced as hereunder;12.Proof of special knowledge in civil proceedings.In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.
35.Before answering the question as pertains to jurisdiction, I beg to point out that if it was shown to the court that NEMA or the Planning Authority, namely, the County Government of Nairobi had made decisions pertaining to the impugned project and thereby issued the requisite licenses and approvals; then the Applicant herein would have been constrained to mount her complaints before the statutory bodies created under the respective statutes.
36.Pertinently, if NEMA has issued the Environment Impact Assessment License, in compliance with Section 58 of the EMCA, 1999, (which is not the case), then the Applicant herein would have a right of recourse by invoking the provisions of Section 129 of the EMCA, 1999, which donates jurisdiction to the National Environment Tribunal.
37.Additionally, if the Planning Authority, namely, the City County Government of Nairobi through the concerned Chief Executive Member, had granted the Development approval; then the Applicant would have been called upon to raise her complaints with the County Physical Planning Liaison Committee and not otherwise.
38.However, in respect of the subject matter, I have pointed out that no license or Development approvals were availed and/or shown unto the court and in the absence of such license/approval, the Applicant herein would not have any basis to approach the statutory bodies created under the EMCA, 1999 and the Physical Land Use Planning Act, 2019, in the manner adverted to by Learned counsel for the 1st and 2nd Respondents.
39.Conversely, the Applicant herein would thus be within his/her rights to approach the Environment and Land Court with a view to vindicating and protecting his Right to a Clean and Healthy Environment, in pursuance of the provisions of Article 42 as read together with Article 70 of the Constitution 2010.
40.Consequently and in this regard, I come to the conclusion that this Honorable court is seized and/or vested with the requisite Jurisdiction to entertain and adjudicate upon the dispute beforehand for as long as the license and development approvals have not been issued.
41.Nevertheless and before departing from this particular issue, I beg to underscore and point out that I am alive to the ratio decidendi of the Court of Appeal in the case of Kibos Distillers Ltd & 5 Others vs Benson Ambuti Adega & Others (2020)eKLR and Eaton Towers Kenya Limited v Kasing’a & 5 others (Civil Appeal 49 of 2016)  KECA 645 (KLR) (28 April 2022) (Judgment); where the Court of Appeal firmly held that the decisions of NEMA and the Planning Authority ought to be challenged before the requisite statutory bodies provided for under the relevant statutes.
42.Notably, I affirm and stand by the ratio decidendi in the foresaid decisions. However, it must be stated that in respect of the instant matter no decisions, license and/or development approvals have been placed and/or shown to the court to trigger the import and tenor of inter-alia Section 129 of the EMCA, 1999; which essentially, provides for the Jurisdiction of the National Environment Tribunal
43.Consequently and in a nutshell, I find and hold that the Preliminary objection disputing and contesting the Jurisdiction of this Honourable court is bereft/ devoid of merits; and hence same is dismissed.