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ELCDismissedNotice of motion dated 1st October 2015 (suit pending, Environment and Land Court)· [2016] KEELC 1157 (KLR)

Centurion Contractors & Agencies (K) Ltd v Nyeri Concrete (K) Ltd..Defendant/Respondent [2016] KEELC 1157 (KLR)

Environment and Land Court
26 January 2016
LWL N Waithaka
1,569 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to stop a quarrying operation because the complainant had no independent expert report linking the damage to the mining activities.

What this practically means

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Executive summary

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Centurion Contractors & Agencies (K) Ltd, the applicant, sought a temporary injunction restraining Nyeri Concrete (K) Ltd, the respondent, from carrying out rock extraction/quarry mining on L.R No. Aguthi/Gatitu/1601 or near Aguthi/Gatitu 2381, alleging that blasting operations on 25th September 2015 damaged its weighbridge office and a store under construction, and fatally wounded an employee's sheep. It also contended that the respondent's business was prohibited near Kagumo Teachers College and the road. The respondent, through director John Chege Taiti, countered that it was fully licensed by the Commissioner of Mines and Geology, NEMA and the County Government of Nyeri; that the parties are business rivals whose relationship soured after contract termination; and that the applicant had acquiesced. Justice L N Waithaka found that both parties conduct quarrying in the area and that the applicant, despite claiming technical competence, produced no report from an independent, impartial or competent authority linking the alleged damage to the respondent's activities. The isolated incident of the wounded sheep was considered incapable of proof given a sheep is a mobile animal. The court held the applicant had not established a prima facie case with probability of success, that damages would be an adequate remedy, and that the balance of convenience favoured maintenance of the status quo. The application dated 1st October 2015 was dismissed with costs to the respondent.

Key legal issues

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01

Whether a prima facie case was established

Holding

The applicant failed to establish a prima facie case with probability of success.

Reasoning

The court found that the deponent, though claiming to be an Engineer, annexed no independent report from an impartial party or concerned authority linking the damage to the respondent's activities. The only evidence was a photograph of a fatally wounded sheep and alleged structural damage. A sheep being a mobile animal, the isolated incident could not prove the case.

p. 3
02

Adequacy of damages as an alternative remedy

Holding

Damages would adequately compensate, so injunctive relief was inappropriate.

Reasoning

Applying the trite principle that injunctions are not granted where damages suffice, the court noted the applicant did not contend that damages could not compensate for the alleged destruction of property.

p. 3
03

Balance of convenience

Holding

The balance of convenience tilts in favour of maintenance of the status quo.

Reasoning

Despite finding against the applicant, the court observed that the dispute could be resolved by restraining the use of explosives, but noted the applicant had neither sought such restraint nor proved linkage between the explosives and the damage.

p. 4

Legal principles established

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  • An applicant for a temporary injunction must establish a prima facie case with probability of success, supported by competent and impartial evidence
  • An injunction will not issue if the claimant can be adequately compensated by an award of damages

Court orders

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  1. 1.The application dated 1st October 2015 dismissed with costs to the respondent
Jurisdiction invoked
Environment and Land Court jurisdiction, including power under Section 108 of the Environment Management Coordination Act (EMCA)

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, "Centurion Contractors & Agencies (K) Ltd v Nyeri Concrete (K) Ltd..Defendant/Respondent [2016] KEELC 1157 (KLR)", Case Analysis (2016). Notice of motion dated 1st October 2015 (suit pending, Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1157/eng@2016-01-26

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