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ELCPartially AllowedNot stated in judgment (plaint filed 29 June 2016, Environment and Land Court at Nakuru)· [2017] KEELC 2785 (KLR)

Moses Njoroge Mungai v Peter Muchoki & another [2017] KEELC 2785 (KLR)

Environment and Land Court
17 May 2017
MSMunyao Sila
1,672 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner's bid to immediately stop a nursery on a road reserve failed, but the court preserved the situation pending a full hearing on the licence's validity.

What this practically means

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Executive summary

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This is a ruling on the plaintiff's interlocutory application under Order 40 Rules 1, 2 and 3 of the Civil Procedure Rules in a suit commenced by plaint on 29 June 2016. The plaintiff, registered proprietor of Gilgil/Gilgil Block 1/4185 (Kekopey) along the Nakuru-Nairobi highway, sought a declaration that a licence issued by the 2nd defendant (the County Government) to the 1st defendant to operate a tree nursery on the road reserve fronting his land was malicious, unconstitutional, illegal and a breach of his legitimate expectation, and an order revoking that licence. In the interim application he sought an injunction restraining interference with his access and interim revocation of the licence. The 1st defendant, who coordinates a group of over 40 persons, denied blocking access, asserting that the group held trade licences and permits, that two road reserves and a government road separated the nursery from the plaintiff's land, and that the project occupied only 20% of the road reserve; he asked that the status quo be maintained. The 2nd defendant filed grounds of opposition noting the licence was temporary and revocable. Applying the prima facie case, irreparable loss and balance of convenience test, the court doubted the claim of denied access given the plaintiff's extensive developments and the absence of tangible evidence, and held the revocation prayer was a final order unsuitable at the interlocutory stage. Noting that the suit raised an important question on the extent to which government may permit use of road reserves and whether adjacent owners must be consulted, the court directed that the status quo be maintained pending the hearing of the suit, with costs in the cause.

Key legal issues

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01

Whether the plaintiff established grounds for an interim injunction

Holding

The plaintiff's claim of denied access was doubtful in the absence of tangible evidence; the appropriate interim order was maintenance of the status quo rather than an injunction or revocation of the licence

Reasoning

The court applied the standard test for interim injunctions: prima facie case, irreparable loss, and balance of convenience. Although the plaintiff alleged his access was blocked, he had undertaken extensive developments, casting doubt on the claim. No photographs or other tangible evidence supported the alleged blockage. The prayer to cancel the licence was a final order unsuitable at interlocutory stage, so the court deferred substantive determination and preserved the status quo.

p. 3
02

Extent to which the County or National Government may permit use of road reserves and whether adjacent landowners must be consulted

Holding

The suit raises an important question best determined at the hearing after all parties present their full case; the court declined to decide it on the application

Reasoning

The court identified as a critical question whether a county or national government may license use of a road reserve and whether the adjacent landowner's consent is required, noting the danger that such use may impede enjoyment of adjacent property. It held this important question needed full evidence and argument at a hearing, possibly including a site visit, before orders could be made for or against a party.

p. 3

Legal principles established

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  • To succeed in an injunction application a party must show a prima facie case with a probability of success, irreparable loss, and failing that, the balance of convenience
  • An interlocutory application should not be used to obtain final relief such as cancellation of a licence

Court orders

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  1. 1.The current status quo be maintained pending hearing and determination of the suit
  2. 2.Costs of the application shall be costs in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rules 1, 2 and 3
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land and environment disputes; interim relief under Order 40 Rules 1, 2 and 3 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, "Moses Njoroge Mungai v Peter Muchoki & another [2017] KEELC 2785 (KLR)", Case Analysis (2017). Not stated in judgment (plaint filed 29 June 2016, Environment and Land Court at Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2785/eng@2017-05-17

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