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ELCPartially AllowedNot stated in the judgment extract· [2017] KEELC 3019 (KLR)

Kamunyo Karechio Trust v Samuel Chege Gichuhi & another [2017] KEELC 3019 (KLR)

Environment and Land Court
25 April 2017
3,031 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court allowed a trust to keep landscaping a Nairobi road reserve, ruling only KeNHA could authorize its use.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court (B M Eboso J) disposed of two interlocutory applications arising from a dispute over a road reserve at the junction of Thika Super Highway and Garden Estate Road, Nairobi. The Plaintiff, a trust whose trustees own LR No. 13330/625, had obtained a 2012 licence from the City Council of Nairobi (and later KeNHA authorization) to landscape and beautify the road reserve fronting its plot. It sued after the 2nd Defendant authorized the 1st Defendant to convert the reserve into a commercial parking plot, seeking a permanent injunction and an interim one by chamber summons dated 6/12/2013. The 1st Defendant sought review of the status quo order issued by Mutungi J on 14/1/2014 and, alternatively, interim access to the property. The court held that the review limb was rendered spent by determination of the Plaintiff's application, and that the access prayer amounted to a mandatory injunction untenable absent a counterclaim, though citing Thuri Burton Kamau it accepted that preservatory relief can be sought by a defendant without a counterclaim. Applying Giella v Cassman Brown, Mrao and Nguruman, the court found a prima facie case: the road reserve falls under KeNHA's mandate under Article 186, the Fourth Schedule and the Kenya Roads Act, and the Plaintiff held authorizations from Kenha while the 1st Defendant exhibited none. Damages were inadequate for environmental works. The 1st Defendant's application was dismissed; the Plaintiff's application was allowed with an interim injunction preserving the landscaping works; costs of both applications were awarded to the Plaintiff.

Key legal issues

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01

Whether a defendant without a counterclaim can obtain an interim injunction

Holding

A preservatory injunction may issue to a defendant without a counterclaim, but a mandatory injunction granting rights of use over the suit property cannot

Reasoning

The court relied on Thuri Burton Kamau v Thomas Ngugi and Order 40 of the Civil Procedure Rules, agreeing with Ojwang J that where suit property is in danger of being wasted or damaged, a defendant may seek preservatory relief. However, the 1st Defendant's application sought a mandatory injunction granting access and use as a parking bay, which is predicated on a substantive claim; without a counterclaim this was untenable.

p. 3
02

Whether the Plaintiff established a prima facie case for an interlocutory injunction over the road reserve

Holding

Yes - the Plaintiff established a prima facie case with a probability of success, and damages would not be an adequate remedy

Reasoning

Applying Giella v Cassman Brown and Mrao Ltd v First American Bank, the court found the Plaintiff had licences from the City Council of Nairobi and belated authorization from KeNHA, the agency legally mandated over the Thika Super Highway road reserve under Article 186, the Fourth Schedule and the Kenya Roads Act. The 1st Defendant exhibited no authorization from the responsible agency, and the nature of environmental works meant damages would be inadequate.

p. 5
03

Whether the use of a chamber summons instead of a notice of motion defeats the Plaintiff's application

Holding

No - the procedural error was excused under Article 159 of the Constitution as causing no prejudice

Reasoning

The court noted the Plaintiff moved by chamber summons rather than a notice of motion. Weighing the letter and spirit of Article 159 (overriding objective of justice), the court held that the procedural misstep did not prejudice the Defendants and was not a sufficient ground to reject the application.

p. 5

Legal principles established

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  • A defendant who has not pleaded a counterclaim may seek a preservatory injunction where the suit property is in danger of being wasted, damaged or alienated, but cannot obtain a mandatory injunction granting him rights of use absent a substantive claim
  • Under the Constitution of Kenya 2010 (Article 186 and the Fourth Schedule) and the Kenya Roads Act, national trunk roads and their road reserves fall under the national roads agencies (KeNHA for national highways), not the county government

Court orders

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  1. 1.The 1st Defendant's Notice of Motion Application dated 21/1/2014 is dismissed for lack of merit
  2. 2.Pending the hearing and final determination of the suit, the Defendants, their agents, employees and servants are restrained against entering into, interfering with or tampering with the suit property or hampering the landscaping, beautification and environmental conservation undertaken by the Plaintiff on the road reserve fronting the Plaintiff's Plot LR No.13330/625 at the Junction of Thika Super Highway and Garden Estate Road within Nairobi City County
  3. 3.The Plaintiff shall have costs of the two Applications

Authorities

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Legislation

  • Constitution of Kenya 2010Article 186, Fourth Schedule (Section 18), Article 159
  • Kenya Roads ActSection 22, Section 49(1)
  • Civil Procedure RulesOrder 40 Rule 1

Cases cited (4)

  • Thuri Burton Kamau Vs Thomas Ngugi t/a Miiri Bookshop
    (2005) eKLR
  • Giella vs. Cassman Brown & Co. Ltd
    (1973) E.A 358
  • Mrao Limited vs. First American Bank of Kenya Limited & 2 Others
    (2003) eKLR
  • Nguruman Limited vs. Jan Bonde Nielsen & 2 Others
    [2014] eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a dispute concerning a road reserve (land use and title-related dispute), under the framework applicable to the Environment and Land Court

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, "Kamunyo Karechio Trust v Samuel Chege Gichuhi & another [2017] KEELC 3019 (KLR)", Case Analysis (2017). Not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3019/eng@2017-04-25

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