Sarah Pitoria Ole Sein & 4 others v Athi Water Services Board & 2 others [2018] KEELC 1233 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiffs established a prima facie case with a probability of success
No prima facie case was demonstrated; the Plaintiffs' parcels are not affected by the project, the 1st Defendant holds the necessary NEMA and other approvals, and an uncontroverted NET appeal against the licence failed
The court noted the Plaintiffs' land was omitted from the project's feasibility studies and aerial map, that the Plaintiffs participated in consultations including the August 2015 meeting where the aerial map was presented, and that their unsuccessful NET Appeal No. 180 of 2016 against the NEMA licence was not controverted. Alleged rights violations were matters for trial, not interlocutory determination.
Whether the Plaintiffs would suffer irreparable loss not compensable by damages
The alleged injury to the right to a clean and healthy environment and to the borehole was speculative at the interlocutory stage
Applying Nguruman Ltd v Jan Bonde Nielsen, the applicant bears the burden of demonstrating actual, substantial and demonstrable injury. The feasibility studies culminated in the omission of the Plaintiffs' parcels from the project, so their apprehension of environmental harm and interference with their borehole was unfounded fear that could not support an injunction at that stage.
Balance of convenience
The balance of convenience did not tilt in favour of the Plaintiffs since their parcels are not affected by the project
On the third Giella principle, the court was not in doubt: the evidence showed the Plaintiffs' parcels were excluded from the sewerage project location, so no inconvenience would befall them if construction proceeded, while halting a project with all statutory approvals would inconvenience the Defendants and the public.
Legal principles established
#- The three Giella v Cassman Brown conditions govern the grant of temporary injunctions: prima facie case with probability of success, irreparable injury not adequately compensable in damages, and, if in doubt, balance of convenience
- Speculative injury cannot found an injunction; the applicant must demonstrate actual, substantial and demonstrable injury incapable of adequate compensation by damages
- Alleged violations of rights to property and to a clean and healthy environment cannot be determined at interlocutory stage but only upon viva voce evidence at trial
Court orders
#- 1.The application dated 11th December, 2017 is dismissed with costs
- 2.The parties were urged to comply with Order 11 and set the suit down for hearing as soon as possible
- Jurisdiction invoked
- Inherent jurisdiction of the Environment and Land Court to grant temporary injunctions pending determination of a suit concerning land and the environment (Giella v Cassman Brown principles applied); the judgment does not cite a specific constitutional or statutory provision
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sarah Pitoria Ole Sein & 4 others v Athi Water Services Board & 2 others [2018] KEELC 1233 (KLR)", Case Analysis (2018). Notice of Motion dated 11th December, 2017 in the main suit (ELC suit not numbered in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1233/eng@2018-10-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.