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ELCPartially AllowedNotice of motion dated 13.11.2018 (Meru ELC)· [2018] KEELC 192 (KLR)

Little Sisters of St. Therese of the Child Jesus - Registered Trustees v China National Aero-Technology International Engineering Corporation Limited & 2 others [2018] KEELC 192 (KLR)

Environment and Land Court
17 December 2018
LMLucy N. Mbugua
969 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ordered road authorities to connect a hospital's drainage to a new road, finding disruption of medical services justified urgent relief.

What this practically means

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Executive summary

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The applicant, St. Theresa's Mission Hospital - Kiirua, moved the Environment and Land Court at Meru by notice of motion dated 13 November 2018 seeking an interlocutory mandatory injunction against the respondents in a petition. The hospital, situated on low ground in a high-rainfall area, had constructed an internal drainage channel discharging storm water towards the Kiirua-Ruiri road. In March 2018, the Kenya Rural Roads Authority undertook the upgrading of the Kisima-Kibirichia-Kiirua-Ruiri road to bitumen standard and interfered with the hospital's drainage. Following correspondence, the 2nd respondent proposed a drainage solution by letter dated 28 March 2018, which the petitioner accepted by letter dated 27 April 2018, but the respondents never implemented it. The main road drainage was completed and stone-pitched, closing off the hospital's discharge point and leaving it exposed to flooding, disruption of medical services, and damage to property, with the petitioner alleging violations of its right to property and its patients' rights to health and life under Article 43(1). The respondents were served but filed no response. Applying the test in Kenya Breweries Ltd v Okeyo (2002) 1 EA 109, the court held that a mandatory injunction is not normally granted interlocutorily absent special circumstances, but found such circumstances in the hospital's provision of crucial medical services likely to be disrupted. The application was allowed in terms of prayer 3: a mandatory injunction compelling the respondents to construct connections between the hospital's drainage and the road's drainage system pending hearing of the petition, with costs to the applicant.

Key legal issues

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Test for grant of a mandatory injunction on an interlocutory application

Holding

The court applied the test from Kenya Breweries Ltd v Okeyo, requiring special circumstances, and found them in the disruption of crucial medical services and the threatened flooding of the hospital

Reasoning

The court adopted the test in Halsbury's Laws of England as set out in Kenya Breweries Ltd v Okeyo: a mandatory injunction is not normally granted interlocutorily absent special circumstances, but will be granted if the case is clear, the act is simple and easily remedied, or the defendant attempted to steal a match on the plaintiff. The applicant showed it provides crucial medical services that may be disrupted, and that its right to property and its patients' rights to health under Article 43(1) were at stake. The respondents did not respond to the application.

p. 2

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; the applicant must demonstrate those special circumstances

Court orders

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  1. 1.Application allowed in terms of prayer 3 - mandatory injunction compelling the 1st, 2nd and/or 3rd respondents to make the relevant constructions connecting the petitioner's drainage system to the Kisima-Kibirichia-Kiirua-Ruiri road's drainage system pending the hearing and determination of the petition
  2. 2.Costs of the application to the applicant

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 43(1)

Cases cited (1)

  • Kenya Breweries Ltd vs Okeyo
    (2002) 1 EA 109
Jurisdiction invoked
Article 43(1) of the Constitution invoked; original jurisdiction of the Environment and Land Court over interlocutory application in a petition

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, "Little Sisters of St. Therese of the Child Jesus - Registered Trustees v China National Aero-Technology International Engineering Corporation Limited & 2 others [2018] KEELC 192 (KLR)", Case Analysis (2018). Notice of motion dated 13.11.2018 (Meru ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/192/eng@2018-12-17

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