Joseph Mureithi Gichu v Obuya Otieno Ritzau t/a Bamburi Community High School & 3 others [2017] KEELC 743 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff established a prima facie case with a probability of success in respect of waste disposal on his plot
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
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.
Whether irreparable damage and the balance of convenience favoured the Applicant
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
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.
Whether a mandatory injunction should issue at the interlocutory stage in respect of noise pollution and compelling the 3rd and 4th Defendants to act
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
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.
Legal principles established
#- 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
#- 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.Costs of the Application to abide the result of the main suit
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.