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ELCOtherNot stated in judgment· [2014] KEELC 382 (KLR)

Charles Jonyo Osicho v City Council Of Nairobi & 2 others [2014] KEELC 382 (KLR)

Environment and Land Court (High Court), Nairobi
13 May 2014
3,254 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Nairobi court stopped commercial use of a nearly built shop in a residential estate, but let the construction stand pending trial.

What this practically means

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Executive summary

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This interlocutory ruling by P. Nyamweya J in the Environment and Land Court at Nairobi determined the Plaintiff's Notice of Motion dated 18th June 2013 seeking temporary injunctions restraining the 3rd Defendant from constructing a storeyed building of shops and residential flats on Nairobi Block 121/208, and restraining the Defendants from trespassing on the Plaintiff's parcel Nairobi Block 121/207. The Plaintiff, owner of 121/207 purchased from the 2nd Defendant in 1993, alleged that the 3rd Defendant's development lacked proper change of user approval, lacked an environmental impact assessment, and had led to destruction of part of his roof. The Defendants opposed: the 1st Defendant relied on approvals granted and a survey showing a 0.40 metre overlap from the Plaintiff's parcel; the 2nd Defendant denied being a necessary party; the 3rd Defendant asserted he had all approvals and that construction was nearly complete. The court first declined to rule on the 2nd Defendant's striking-out argument absent a formal application. Applying Giella vs Cassman Brown, the court found a prima facie issue: the lease condition contained an inherent contradiction, and NEMA's EIA exemption covered only a residential house while a shop was being built. The development was found out of character with surrounding residential bungalows. Because construction was nearly complete and approvals existed, the court determined the application on balance of convenience, restraining the 3rd Defendant from using the premises as a shop or for any trade or business, and restraining the Plaintiff from demolishing or interfering with the 3rd Defendant's premises, pending the suit. Costs were made costs in the cause.

Key legal issues

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01

Whether the Plaintiff established a prima facie case of illegal development on Nairobi Block 121/208

Holding

The Plaintiff's concerns were found valid: the 3rd Defendant's shop and maisonette development was out of character with the surrounding residential bungalows, and there was uncertainty whether change of user and EIA approvals were obtained

Reasoning

The court examined the 3rd Defendant's lease, noting an inherent contradiction between permitting use as a shop and prohibiting trade or business. NEMA's exemption for an EIA related only to a residential house, yet a shop was being constructed. The survey report showed surrounding buildings were residential bungalows, making the development out of character with its surroundings under the EMCA Second Schedule.

p. 5
02

Whether an injunction should issue restraining construction

Holding

No; the matter was determined on balance of convenience, with only a restraint on commercial use of the premises issued

Reasoning

The court found the 3rd Defendant had obtained the necessary approvals to construct on his parcel, the construction was nearly complete, and uncertainty remained as to the approved use and whether change of user and EIA were required. In those circumstances a full construction injunction was inappropriate, but the balance of convenience supported preserving the residential character pending trial.

p. 6
03

Whether the 2nd Defendant was improperly joined

Holding

The court declined to rule, directing the 2nd Defendant to make a formal application

Reasoning

No formal application to strike out the 2nd Defendant had been made, so the Plaintiff and other parties had not had the opportunity to canvass the issue. The court held it imprudent to grant any orders without such an application.

p. 4

Legal principles established

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  • Development that is out of character with its surroundings, structures out of scale with surroundings, or major changes in land use require an environmental impact assessment under the Second Schedule of EMCA
  • A temporary injunction requires establishment of a prima facie case and irreparable loss; failing which the application may be decided on balance of convenience
  • A court should not rule on an application to strike out a party absent a formal application giving other parties the opportunity to be heard

Court orders

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  1. 1.The 3rd Defendant, his agents and/or servants are restrained from using the premises constructed on Title No. Nairobi Block 121/208 or any part thereof as a shop or carrying out any trade and business thereon, pending the hearing and determination of the suit or until further orders
  2. 2.The Plaintiff, his agents and/or servants are restrained from demolishing or in any other manner howsoever interfering with the 3rd Defendant's premises constructed on Nairobi Block 121/208 or any part thereof, pending hearing and determination of this suit or until further orders
  3. 3.Costs of the Plaintiff's Notice of Motion dated 18th June 2013 shall be in the cause
  4. 4.The 2nd Defendant directed to make a formal application to the court regarding its continued participation in the suit
Jurisdiction invoked
Original civil jurisdiction; application under the Civil Procedure Rules seeking temporary injunctions

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Charles Jonyo Osicho v City Council Of Nairobi & 2 others [2014] KEELC 382 (KLR)", Case Analysis (2014). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/382/eng@2014-05-13

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.