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ELCPartially AllowedNot stated in the judgment (Mombasa ELC; Notice of Motion dated 2nd February 2017)· [2017] KEELC 743 (KLR)

Joseph Mureithi Gichu v Obuya Otieno Ritzau t/a Bamburi Community High School & 3 others [2017] KEELC 743 (KLR)

Environment and Land Court
7 December 2017
2,356 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Mombasa (C. Yano, J) delivered on 7th December 2017 on a Notice of Motion dated 2nd February 2017 brought by the Plaintiff, Joseph Mureithi Gichu, under Order 40 of the Civil Procedure Rules, the Civil Procedure Act, the Environmental Management and Co-ordination Act and Articles 42 and 70 of the Constitution. The Plaintiff, registered owner of sub-division Plot No.9901/3/Section II MN Mtopanga, Bamburi, sought interlocutory injunctions restraining the 1st and 2nd Defendants from disposing of waste on his plot and from causing noise pollution, and a mandatory order compelling the 3rd and 4th Defendants (public bodies) to take measures against the harmful acts. The 1st Defendant denied the allegations and raised the existence of a prior suit, Mombasa CMCC No.901 of 2011; the 2nd Defendant, the owner of the neighbouring plot, blamed his tenant, the 1st Defendant; the 3rd Defendant opposed the mandatory relief; and the 4th Defendant contended the functions were devolved. Applying Giella v Cassman Brown, Mrao v First American Bank, Kenya Breweries v Okeyo and Locabail, the court found a prima facie case and irreparable harm regarding the waste disposal, noting the 2nd Defendant's implicit admission of the acts and the photographs of garbage. It allowed prayer 2 only, granting a temporary injunction against waste disposal pending determination of the application, and declined prayers 3 and 4 as mandatory injunctions requiring special circumstances and a clear case. Costs were to abide the result of the main suit.

Key legal issues

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01

Whether the Plaintiff established a prima facie case with a probability of success in respect of waste disposal on his plot

Holding

Yes. The 2nd Defendant's assertion that the 1st Defendant was responsible for the acts complained of supported the Plaintiff's contention that his rights had been violated, and photographs of the alleged garbage were produced

Reasoning

The court found that although the 2nd Defendant denied personal liability by pointing to the lease with the 1st Defendant, that admission that the acts were committed supported the Plaintiff's claim of violation. The Plaintiff showed photographs of the alleged garbage, establishing a prima facie case with likelihood of success and real danger of continuing prejudice to his right to a clean and healthy environment.

p. 5
02

Whether irreparable damage and the balance of convenience favoured the Applicant

Holding

Yes. The Applicant stood to suffer irreparable damage if the nuisance was not stopped, and the balance of convenience tilted in his favour because the law requires preservation of a clean and healthy environment

Reasoning

Having found a prima facie case, the court held that failure to grant the conservatory orders in prayer 2 would leave the Plaintiff exposed to continued violation of his right to a clean and healthy environment. Even if there were doubt, the balance of convenience favoured the Applicant given the constitutional protection of the environment.

p. 5
03

Whether a mandatory injunction should issue at the interlocutory stage in respect of noise pollution and compelling the 3rd and 4th Defendants to act

Holding

No. The matter was not clear and there were no special circumstances; the questions of noise levels and the alleged refusal of statutory duties require interrogation at trial

Reasoning

The court applied the rule that mandatory injunctions are not normally granted at the interlocutory stage absent special circumstances and a clear case. It could not ascertain the level of noise pollution alleged or the 3rd and 4th Defendants' refusal to perform statutory duties without further interrogation at trial, so prayers 3 and 4 were declined.

p. 5

Legal principles established

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  • A mandatory injunction will not normally be granted on an interlocutory application in the absence of special circumstances, and then only in clear cases
  • The test for interlocutory injunctions requires a prima facie case with a probability of success, irreparable damage, and, in doubt, the balance of convenience
  • Under Article 70(3), an applicant alleging violation of the right to a clean and healthy environment need not demonstrate that any person has incurred loss or suffered injury

Court orders

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  1. 1.An order of temporary injunction in terms of prayer 2 of the Notice of Motion dated 2nd February 2017, restraining the Defendants from throwing and/or disposing of waste that litters, denigrates and is harmful to the environment on sub division PLOT NO.9901/3/SECTION II MN MTOPANGA, BAMBURI pending hearing and determination of the application
  2. 2.Costs of the Application to abide the result of the main suit

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rules 1, 2 and 3
  • Civil Procedure ActSections 1A, 1B and 3A
  • Environmental Management and Co-ordination Act No. 8 of 1999Section 3
  • Environmental Management and Co-ordination Act No. 8 of 1999Section 87
  • Constitution of KenyaArticle 42
  • Constitution of KenyaArticle 70

Cases cited (4)

  • Giella –V- Cassman Brown & Co Ltd
    (1973) EA 358
  • Mrao –V- First American Bank Of Kenya Limited & 2 Others
    (2003) KLR 125
  • Kenya Breweries Ltd and Another –V- Washington Okeyo
    (2002) eKLR
  • Locabail International Finance Ltd –v- Agro export & another
    (1986) ALL ER 901
Jurisdiction invoked
Articles 42 and 70 of the Constitution of Kenya; Order 40 Rules 1, 2 and 3 of the Civil Procedure Rules; Sections 1A, 1B and 3A of the Civil Procedure Act; Section 3 of the Environmental Management and Co-ordination Act No. 8 of 1999

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, "Joseph Mureithi Gichu v Obuya Otieno Ritzau t/a Bamburi Community High School & 3 others [2017] KEELC 743 (KLR)", Case Analysis (2017). Not stated in the judgment (Mombasa ELC; Notice of Motion dated 2nd February 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/743/eng@2017-12-07

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