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ELCAllowedNot stated in judgment (notice of motion dated 10th February 2016)· [2018] KEELC 4561 (KLR)

Manojkumar Sedani & another v William Arnold Opiyo & another [2018] KEELC 4561 (KLR)

Environment and Land Court
7 February 2018
SKS.M. Kibunja
982 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kisumu court halted construction because the developer could not produce an environmental licence, proving neighbours can stop unapproved building projects.

What this practically means

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Executive summary

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The Plaintiffs, registered proprietors of Kisumu Municipality/Block 12/208, moved the Environment and Land Court by notice of motion dated 10th February 2016 seeking a temporary injunction restraining the 1st Defendant from continuing construction works on the adjoining parcel Kisumu Municipality/Block 12/214 pending the hearing of the suit. They alleged the development lacked approval by the County Government of Kisumu (2nd Defendant), had no NEMA approval or EIA report, and that the plans were not drawn by qualified persons. The 1st Defendant opposed, producing stamped approved development plans (a 2014 set without named architect and a February 2016 set drawn by Abuga Brian and checked by Arch. J.O. Kanyangweso), and asserted an NEMA licence existed. The 2nd Defendant's Ag. Director Planning, Solomon Kijea Mwongo, also opposed. Framing two issues - prima facie case and costs - the court found the County had in fact approved the plans (confirmed by its replying affidavit and its letter of 5th February 2016), but that the 1st Defendant produced no documentary evidence of an NEMA licence; indeed his own Planning Brief stated an EIA 'shall be done before commencement of construction', yet construction had already begun. The court held the Plaintiffs established a prima facie case on the environmental ground, allowed the application in terms of prayer 3, and awarded costs in the cause. Ruling delivered by S.M. Kibunja, Judge, on 7th February 2018 at Kisumu.

Key legal issues

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01

Whether the Plaintiffs established a prima facie case with a probability of success for a temporary injunction

Holding

Yes; the Plaintiffs showed the 1st Defendant's construction on Kisumu Municipality/Block 12/214 commenced without an EIA licence, and the approval of plans by the 2nd Defendant did not cure that deficiency.

Reasoning

The Plaintiffs, registered proprietors of the adjacent parcel, showed the 1st Defendant's development lacked an EIA report or NEMA licence; the 1st Defendant asserted a licence existed but produced no documentary evidence. The County's own Planning Brief stated an EIA 'shall be done before commencement of construction', and construction had already begun. The County's approval of plans was confirmed by its own replying affidavit and letter, so the ground of unapproved plans failed, but the environmental ground succeeded.

p. 2

Legal principles established

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  • An applicant for a temporary injunction may establish a prima facie case where the respondent has commenced development without environmental impact assessment or the requisite licence.

Court orders

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  1. 1.Temporary injunction restraining the 1st Defendant, his agents, servants or any person claiming through him from carrying on with or undertaking construction works in land reference No. Kisumu Municipality/Block 12/214 pending the hearing and determination of the suit (prayer 3 of the notice of motion dated 10th February 2016)
  2. 2.Costs in the cause
Jurisdiction invoked
Environment and Land Court jurisdiction over land and environmental disputes (no specific provision cited in the judgment)

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, "Manojkumar Sedani & another v William Arnold Opiyo & another [2018] KEELC 4561 (KLR)", Case Analysis (2018). Not stated in judgment (notice of motion dated 10th February 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4561/eng@2018-02-07

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