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ELCAllowedApplication dated 6/6/2018 (suit pending)· [2018] KEELC 2105 (KLR)
Andrew Omboto & 3 others v Mwalimu National Investment Co-operative Sacco Limited & another [2018] KEELC 2105 (KLR)
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#What this practically means
#Executive summary
#The Plaintiffs, proprietors and residents of houses in L.R. Nos. Nairobi/Block 140/088/039, 140/088/034 and 140/088/033 in Nyayo Estate, Embakasi, Nairobi - a residential area - moved the court by an application dated 6/6/2018 seeking a conservatory order restraining the Defendants or their agents from further constructing buildings on the adjacent L.R. No. Nairobi/Block 140/85 pending the hearing and determination of the suit. The Plaintiffs complained that the Defendants were constructing a multi-storey building comprising classrooms and ablution facilities on land adjacent to their houses without consulting the residents of adjoining plots and without obtaining the necessary change-of-user approvals from residential to educational purposes. The Plaintiffs supported the application with documents evidencing their purchase of houses from the National Social Security Fund and correspondence with the Defendants. The Defendants asserted that they had obtained approvals from the Ministry of Education, Science and Technology to run a nursery and primary school, applied for change of user, erected a signboard, distributed questionnaires on the impact of the development, and advertised the change of user in two daily newspapers, and that they complied with NEMA and the Physical Planning Act requirements. At the oral hearing, the Plaintiffs emphasised the nuisance of toilets used by students sited close to, and facing, their kitchens and houses. The court allowed prayer 2, restraining further construction until the suit is determined, directed the parties to set down the case for hearing within six months, and ordered the costs of the application to be in the cause.
Key legal issues
#01
Whether to grant a conservatory order restraining further construction pending trial
Holding
Prayer 2 allowed; construction restrained until the suit is heard and determined, with an expeditious trial directed.
Reasoning
The Plaintiffs proprietors in a residential estate complained of a multi-storey school building with classrooms and ablution facilities facing their houses, alleging failure to consult neighbours and to obtain change-of-user approvals. Given the effect on their enjoyment of their homes, the court preserved the position and directed an early full trial to determine all issues, with costs in the cause.
p. 1
Legal principles established
#- An interlocutory conservatory order may issue to restrain potentially offending development pending full trial where the applicant shows a serious question affecting enjoyment of residential property.
Court orders
#- 1.Prayer 2 of the application dated 6/6/2018 allowed - conservatory order restraining the Defendants or their agents from further constructing the buildings on L.R. No. Nairobi/Block 140/85 until the suit is heard and determined
- 2.Parties directed to set down the case for hearing within six months for determination of all issues at a full trial
- 3.Costs of the application shall be in the cause
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over the pending suit
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Andrew Omboto & 3 others v Mwalimu National Investment Co-operative Sacco Limited & another [2018] KEELC 2105 (KLR)", Case Analysis (2018). Application dated 6/6/2018 (suit pending). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2105/eng@2018-07-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.