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ELCDismissedNot stated in the judgment· [2016] KEELC 752 (KLR)

Mathare Quick Service Limited & 7 others [2016] KEELC 752 (KLR)

Environment and Land Court
29 April 2016
LGL. Gacheru
1,512 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi court refused to stop a public road project through private plots, saying a survey and trial—not an injunction—would settle the dispute.

What this practically means

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Executive summary

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The Plaintiffs, who claimed ownership of plots 1, 15, 16, 17, 18, 19 and 20 in Mathare (part of L.R. No. 36/V/16 purchased in 1986), sought a temporary injunction restraining the Defendant, a state roads corporation, from trespassing on, interfering with or demolishing structures on the plots during an upgrade of Mau Mau Road. They argued the works encroached on private property without compliance with the Land Acquisition Act, contrary to Article 40(3) of the Constitution. The Defendant, through its Regional Manager's affidavit, maintained that the works were improvement of an existing 3.2km public road within a clear corridor, that no demolitions or eviction notices had issued, and that 60% of the works were complete. Applying the Giella v Cassman Brown test, the court held that although the Plaintiffs' ownership was undisputed, their photographic evidence of encroachment was highly contested and contradicted by the Defendant's photographs; the extent of encroachment could only be established at trial, ideally by survey. Accordingly, no prima facie case was established and no injunction could issue. Further, even if encroachment were proved, public interest in the road upgrade would override private rights; Article 40(3)(b) permits deprivation of property for a public purpose if lawful, and damages would be adequate compensation. The Notice of Motion was dismissed with each party bearing its own costs, and the court directed a Government Surveyor to file a report within 60 days, with the Plaintiffs to serve the order on the Director of Survey.

Key legal issues

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01

Whether the Plaintiffs established a prima facie case for a temporary injunction

Holding

No prima facie case was established because the alleged encroachment was heavily contested and could only be resolved on trial evidence and a survey

Reasoning

The court found ownership of the plots undisputed and acknowledged the ongoing road upgrade, but the Plaintiffs' photographic evidence of encroachment was directly contradicted by the Defendant's photographs showing works confined to the existing road corridor. The court held the conflict could only be resolved at trial, ideally with a survey, so the first Giella limb failed and no injunction could issue.

p. 3
02

Whether injunction is the appropriate remedy where public interest road works are alleged to encroach on private property

Holding

No; public interest overrides private rights, Article 40(3)(b) permits deprivation for public purpose if lawful, and damages would adequately compensate

Reasoning

Even if encroachment were proved, the court held an injunction would not be viable because the Mau Mau Road upgrade serves the greater public interest. Article 40(3)(b) contemplates lawful deprivation for public purpose, and the Plaintiffs could be adequately compensated in damages, failing the irreparable-loss limb of the Giella test.

p. 3

Legal principles established

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  • Where the road works serve the greater public interest and the claimant can be adequately compensated in damages, an injunction is not the appropriate remedy
  • Article 40(3)(b) of the Constitution contemplates deprivation of property for a public purpose or public interest provided it is carried out in accordance with the law

Court orders

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  1. 1.The Notice of Motion dated 30th July 2015 is dismissed
  2. 2.Each party to meet their own costs of the application
  3. 3.A Government Surveyor to proceed to the area and file a report within 60 days; Plaintiffs responsible for serving the order on the Director of Survey of Kenya

Authorities

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Legislation

  • Land Acquisition Act, Cap 295Not specified
  • Kenya Roads ActNot specified
  • Constitution of Kenya, 2010Article 40(3); Article 40(3)(b)

Cases cited (2)

  • Giella v Cassman Brown & Co Ltd
    (1973) EA 358
  • Veronicah Waithira Trustee of Inter-Christian Churches & 3 others v Kenya National Highways Authority
    ELC Civil Suit No. 911 of 2013 [2014] eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land disputes; not expressly stated in the judgment

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, "Mathare Quick Service Limited & 7 others [2016] KEELC 752 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/752/eng@2016-04-29

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