Bonny Mwangi Njuguna v Dominic Maitha & 5 others [2017] KEELC 451 (KLR)
The bottom line
#A Kenyan court stopped politicians and others from encouraging building on a road reserve, but refused to order removal of structures owned by people who were not taken to court.
What this practically means
#Executive summary
#Key legal issues
#Temporary prohibitory injunction against incitement to erect illegal structures
Granted - the defendants' uncontroverted acts of inciting residents to put up illegal structures interfering with access to the suit property were wrongful, establishing a prima facie case with probability of success and irreparable harm
The defendants did not enter appearance or controvert the plaintiff's averments. The court found the acts of inciting and encouraging residents to erect illegal structures in front of the suit property wrongful, satisfying the Giella v Cassman Brown principles of prima facie case and irreparable injury not compensable in damages.
Temporary mandatory injunction compelling removal of structures
Refused beyond the defendants, their agents, employees or servants - the structures were erected by third parties not before the court who must be heard first
The defendants were accused only of inciting others; the structures were put up by non-parties. The court cannot compel defendants to remove structures they did not erect, and natural justice requires notice to the owners. The plaintiff was faulted for not joining the structure owners as defendants.
Joinder of the interested parties
The plaintiff did not demonstrate why the interested parties were joined as no relief was sought against them; the 2nd interested party contended it was wrongly joined as the road reserve falls under the 1st interested party
The 2nd interested party explained that the Kenya Roads Act established three road entities and that mandate over the road reserve in question rests with the 1st interested party (KeNHA). The plaintiff did not justify the joinder of either interested party, against whom no orders were sought.
Legal principles established
#- A mandatory injunction ought not to be granted on an interlocutory application in the absence of special circumstances and only in clear cases, on a higher standard than for a prohibitory injunction
- An interlocutory mandatory injunction requires an unusually strong and clear case
- Structures erected by third parties cannot be ordered removed by persons not party to the suit without a hearing
Court orders
#- 1.The plaintiff's application dated 2nd March, 2016 succeeds in part
- 2.The application is allowed in terms of prayer 2 thereof (restraint from constructing or putting up business structures on the frontage of the plaintiff's premises and road reserve)
- 3.Prayer 3 is granted but limited only to the defendants, their agents, employees or servants, and shall not extend to the persons referred to as the defendants' 'constituents'
- 4.The costs of the application shall be in the cause
- Jurisdiction invoked
- Articles 48, 60(1)(a), 62(1)(h) and 165(3) of the Constitution; sections 3, 3A, 11, 13, 20 and 21 of the Civil Procedure Act; Order 1 Rule 3, Order 40 Rules 1 and 2 and Order 51 Rules 1, 2, 3, 4, 10(2), 12, 13 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bonny Mwangi Njuguna v Dominic Maitha & 5 others [2017] KEELC 451 (KLR)", Case Analysis (2017). Not stated in judgment (Notice of Motion dated 2nd March, 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/451/eng@2017-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.