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ELCPartially AllowedNot stated in judgment (Notice of Motion dated 2nd March, 2016)· [2017] KEELC 451 (KLR)

Bonny Mwangi Njuguna v Dominic Maitha & 5 others [2017] KEELC 451 (KLR)

Environment and Land Court
19 December 2017
2,595 words in judgment
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The bottom line

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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

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Executive summary

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This is a ruling by the Environment and Land Court (S. Okong'o, J) on the plaintiff's Notice of Motion dated 2nd March, 2016 seeking prohibitory and mandatory injunctions restraining the defendants - including the local Member of the County Assembly - from issuing statements encouraging or authorising construction of structures on the frontage of the plaintiff's premises on L.R No. MAVOKO TOWN BLOCK 20/121 at Joska and on the adjacent road reserve, and compelling removal of structures already erected. The defendants never entered appearance; the interested parties (KeNHA and a second road authority) responded. KeNHA admitted the road reserve was under its control, that the structures were unauthorised, and that it was reviewing encroachments with a view to appropriate action. The 2nd interested party contended it had no mandate over the road in question and sought to be struck out. Applying Giella v Cassman Brown and the higher threshold for interlocutory mandatory injunctions in Locabail and Shepherd Homes, the court found the defendants' uncontroverted incitement of residents to erect illegal structures wrongful, satisfying the test for a prohibitory injunction. However, the mandatory limb failed because the structures were erected by third parties not before the court, who must be heard before removal, and no relief was sought against the interested parties. The application succeeded in part: prayer 2 was granted in full, prayer 3 only against the defendants, their agents, employees or servants (excluding their 'constituents'), with costs in the cause.

Key legal issues

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01

Temporary prohibitory injunction against incitement to erect illegal structures

Holding

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

Reasoning

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.

p. 4
02

Temporary mandatory injunction compelling removal of structures

Holding

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

Reasoning

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.

p. 4
03

Joinder of the interested parties

Holding

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

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The plaintiff's application dated 2nd March, 2016 succeeds in part
  2. 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. 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. 4.The costs of the application shall be in the cause

Authorities

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Legislation

  • Civil Procedure Actsections 3, 3A, 11, 13, 20 and 21
  • Civil Procedure RulesOrder 1 Rule 3; Order 40 Rules 1 and 2; Order 51 Rules 1, 2, 3, 4, 10(2), 12, 13
  • Constitution of KenyaArticles 48, 60(1)(a), 62(1)(h) and 165(3)
  • Kenya Roads Actsections 4 and 49; 1st Schedule (classification of roads)

Cases cited (3)

  • Giella –vs- Cassman Brown & Company Ltd.
    [1973] E.A. 358
  • Locabail International Finance Limited vs. Agro-Export
    (1988) 1 All ER 901
  • Shepherd Homes Ltd. vs. Sandham
    [1971] 1 ch.304
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

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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, "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.