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ELCAllowedNotice of Motion dated 7th March 2014 (suit relating to LR No.6845/1412 and 6845/1371, Mihango, Utawala, Nairobi)· [2015] KEELC 116 (KLR)

Sewon Enterprises limited v County Government of Nairobi [2015] KEELC 116 (KLR)

High Court of Kenya
10 July 2015
LGL. Gacheru
1,492 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court stopped Nairobi County from demolishing apartments that had building approval and a NEMA licence, ruling completed development deserves protection pending full trial.

What this practically means

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Executive summary

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This was an interlocutory Notice of Motion dated 7th March 2014 by Sewon Enterprises Ltd, the Plaintiff, against Nairobi County Government, the Defendant, brought under Sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act. The Plaintiff sought a temporary stay of enforcement Notices Nos. 157 and 158 dated 26th February 2014, requiring it to stop further development and remove structures on LR No.6845/1412 and LR No.6845/1371, Mihango, Utawala, Nairobi, pending the hearing of the suit. The Plaintiff, through the affidavit of its director Joseph Masakhalia, contended it had obtained the Defendant's approval of building plans dated 3rd October 2013, paid the requisite fees, and secured a NEMA licence, and that the notices were irregular, illegal and vague. The Defendant, through Rose Muema, Chief Officer, Urban Planning and Housing, opposed the application, asserting the plan relied on was forged and unapproved, that flats on the second parcel lacked an occupation certificate, that the notices were lawful under the Physical Planning Act, and that the Plaintiff had not come to court with clean hands. Justice L. Gacheru found no ongoing illegal development, noted the completed three-storey apartments predated the notices and appeared to have approval, and held that the legality of the structures must await full trial. Applying Giella v Cassman Brown, the court found a prima facie case with probability of success and irreparable loss not compensable by damages, and allowed the application in terms of prayer (c), staying the notices pending trial, with costs to the Plaintiff.

Key legal issues

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01

Prima facie case and irreparable injury for temporary stay/injunction

Holding

The Plaintiff established a prima facie case with probability of success and irreparable loss not compensable by damages, warranting stay of the enforcement notices

Reasoning

The court found the development was carried out with the Defendant's approval evidenced by the 3rd October 2013 approval letter and NEMA licence. The structures are complete with tenants in occupation, so demolition under the notices would cause loss not compensable in damages. Whether the development is illegal must await full trial with tested evidence. Applying Giella v Cassman Brown, the balance favoured preserving the status quo.

p. 3
02

Status of completed development under enforcement notices

Holding

Completed structures erected with apparent approval cannot at the interlocutory stage be treated as ongoing illegal development

Reasoning

The court noted there was no evidence of ongoing construction; the three-storey apartments predated the notices and had approval and an EIA licence. The legality or otherwise of the structures is a matter for full trial where witnesses can be called and evidence tested.

p. 3

Legal principles established

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  • The purpose of an interlocutory injunction is generally to preserve the status quo pending trial

Court orders

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  1. 1.Temporary stay of Notices Nos. 157 and 158 issued to the Plaintiff by the Defendant to stop further development and remove structures on LR No.6845/1412 and 6845/1371, Mihango, Utawala Nairobi County, pending the hearing and determination of the suit
  2. 2.Costs of the application to the applicant/Plaintiff
Jurisdiction invoked
Sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act

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, "Sewon Enterprises limited v County Government of Nairobi [2015] KEELC 116 (KLR)", Case Analysis (2015). Notice of Motion dated 7th March 2014 (suit relating to LR No.6845/1412 and 6845/1371, Mihango, Utawala, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/116/eng@2015-07-10

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