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ELCAllowedELC Case (Thika) - Notice of Motion dated 29th December 2015· [2018] KEELC 2857 (KLR)

James Irungu Mwangi & 2 others v Laban Macharia Muiruri & another [2018] KEELC 2857 (KLR)

Environment and Land Court
25 June 2018
3,621 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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What this practically means

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Executive summary

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The Plaintiffs, officials and members of White Sisters Neighbourhood Welfare Group, moved the Court by Notice of Motion dated 29th December 2015 seeking an interlocutory injunction restraining the 1st Defendant from continuing construction of multi-dwelling residential units (flats) on LR.No.Ngoingwa Block 22/13 (Thika Municipality Block 22/113) and from interfering with their quiet possession, plus an order that the OCS Thika Police Station assist in compliance. They contended the area was zoned for single dwelling houses under lease special conditions and zoning laws. The 1st Defendant relied on approvals from the Municipal Council of Thika, alleged the suit was actuated by malice, and pointed to other similar developments unopposed. The 2nd Defendant did not participate but in its defence disclosed it had issued an enforcement notice that was quashed in JR Misc.Appl. No.186 of 2015. Applying Giella v Cassman Brown, the Court found a prima facie case: the lease's Special Condition No.3 restricted use to one private dwelling house, and the 1st Defendant's rights were not absolute. Damages would not adequately compensate the loss to amenities and environmental management, and the balance of convenience favoured preserving the status quo before the construction. Doubt was also cast on the Notification of Approval, which originally referenced 'Mangu'. The application was allowed entirely in terms of prayers No.4 and 5, with costs to the Plaintiffs/Applicants.

Key legal issues

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01

Whether the Applicants established a prima facie case

Holding

Yes - the lease special condition restricts the area to one private dwelling house

Reasoning

The Court examined the lease for Thika Municipality Block 22, whose Special Condition No.3 restricts use to one private dwelling house not covering more than 50% of the land. The 1st Defendant's multi-dwelling flats were contrary to this. Though the 2nd Defendant did not participate, its defence showed it issued an enforcement notice which was quashed. The Court held the Applicants' right to own property in a single-dwelling zone had apparently been infringed.

p. 6
02

Irreparable loss

Holding

Yes - construction would strain amenities and environmental management, inadequately compensable by damages

Reasoning

The Court found multi-dwelling units would restrain social amenities and affect environmental management of the area, applying Olympic Sport House Ltd v School Equipment Centre Ltd on damages not being a substitute for breach of law.

p. 6
03

Balance of convenience

Holding

Tilts in favour of maintaining the status quo existing before the disputed construction

Reasoning

Applying Agnes Adhiambo Ojwang v Wycliffe Odhiambo Ojijo, the purpose of an injunction is to preserve the status quo that existed before the wrongful act, here before the 1st Defendant began constructing the disputed flats.

p. 7
04

Validity of the Notification of Approval

Holding

Doubt exists whether it was for 'Mangu' or Ngoingwa Block 22/113; to be addressed by a witness from the 2nd Defendant

Reasoning

The Notification of Approval dated 10th February 2014 originally indicated 'Mangu', cancelled to read Ngoingwa Block 22/113. The Court held the explanation of typographical error should come from the 2nd Defendant, not the 1st Defendant.

p. 6

Legal principles established

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  • Property rights are subject to zoning and special conditions in the lease; an owner cannot insist on exercising rights without regard to others
  • Quashing of an enforcement notice is not a licence to continue development contrary to zoning

Court orders

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  1. 1.Injunction issued against the Defendants from continuing construction of multi-dwelling residential units (flats) on LR.No.Ngoingwa Block 22/113 (Thika Municipality Block 22/113) pending hearing and determination of the suit, and from interfering with the Plaintiffs' quiet possession and enjoyment of their properties
  2. 2.Officer Commanding Thika Police Station directed to assist and ensure compliance with the Court's orders
  3. 3.Costs of the application to the Plaintiffs/Applicants

Authorities

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Legislation

  • Physical Planning Actunspecified
  • Environmental Management and Co-ordination Actunspecified

Cases cited (8)

  • Giella v Cassman Brown & Company Ltd
    1973 EA 358
  • Edwin Kamau Muriu v Barclays Bank of Kenya Ltd
    Nairobi HCCC No. 1118 of 2002
  • Kibutiri v Kenya Shell
    Nairobi High Court Civil Case No.3398 of 1980 (1981) KLR
  • E.A Industries v Trufoods
    (1972) EA 420
  • Mrao Ltd v First American Bank of Kenya Ltd & Others
    (2003) KLR
  • Kiriinya M. Mwenda v Runda Water Ltd & Another
    (2014) eKLR
  • Olympic Sport House Ltd v School Equipment Centre Ltd
    HCC No. 190 of 2012
  • Agnes Adhiambo Ojwang v Wycliffe Odhiambo Ojijo
    Kisumu HCCC No.205 of 2000
Jurisdiction invoked
Original jurisdiction under the Environment and Land Court Act; interlocutory application in an ELC suit

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, "James Irungu Mwangi & 2 others v Laban Macharia Muiruri & another [2018] KEELC 2857 (KLR)", Case Analysis (2018). ELC Case (Thika) - Notice of Motion dated 29th December 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2857/eng@2018-06-25

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