Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedPetition filed 13.11.2018 at Meru (number not stated in the judgment)· [2019] KEELC 1374 (KLR)

Little Sisters of St. Therese of the Child Jesus – Registered Trustees v China National Aero – Technology International Engineering Corporation Limited & 2 others [2019] KEELC 1374 (KLR)

Environment and Land Court
9 October 2019
802 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
This was a constitutional petition lodged on 13th November 2018 at the Environment and Land Court, Meru, by Consolata Mathari Mission Hospital, supported by the affidavit of Sister Mary Agnes Nkatha. The hospital, situated on low-lying ground prone to flooding, had constructed a drainage channel draining towards Kiirua Ruiri Road. During the upgrading of the Kisima-Kibirichia-Kiirua-Ruiri road by the 3rd respondent through the 1st respondent, with the 2nd respondent as resident engineer, the hospital's drainage system was interfered with and ultimately blocked by stone pitching. In March 2018 the parties discussed a solution; on 28th March 2018 the 2nd respondent proposed remedial measures which the petitioner accepted, but nothing was implemented and no further communication followed. The petitioner sought declarations that the respondents' actions violated Articles 25, 26, 40 and 43(1)(a) of the Constitution, and a mandatory injunction to reinstate the drainage channel or alternatively to compel execution of the 28th March 2018 recommendations. The respondents, though served, failed to enter appearance. Relying on Sangram Singh v. Election Tribunal, Koteh on the right to be heard, the court found the petition proven on a balance of probability, noting that an interim mandatory injunction had already issued on 17th December 2018. Judgment was delivered by Lucy N. Mbugua, ELC Judge, on 9th October 2019. The court declared the respondents' actions unconstitutional, arbitrary, wrongful, null and void, confirmed the mandatory injunction, and ordered each party to bear its own costs.

Key legal issues

#
01

Whether the petitioner proved a constitutional violation by the respondents' interference with its drainage

Holding

The court held the petitioner proved its case on a balance of probability, finding the respondents' blocking of the drainage unconstitutional, arbitrary, wrongful, null and void

Reasoning

The petitioner showed that its medical services would be affected by the blocked drainage. The 2nd respondent had, by letter dated 28th March 2018, proposed a solution the petitioner accepted, but the respondents thereafter took no action and made no communication. The court weighed this non-performance against the petitioner's demonstrated risk of flooding, disruption of services and destruction of hospital property, concluding the petition was proven on a balance of probability and warranted both declaratory and mandatory relief.

p. 2
02

Treatment of a petition undefended after service

Holding

Despite service, the respondents failed to enter appearance; the court proceeded to hear the petitioner, stressing the right to be heard and natural justice

Reasoning

The court noted that the respondents were served with the suit papers but failed to enter an appearance. Invoking the Supreme Court of India in Sangram Singh, it emphasised that procedure is grounded on natural justice: parties should not be condemned unheard or have proceedings continue behind their backs. Nonetheless, the court did not grant relief automatically; it examined the petitioner's evidence and satisfied itself that the claim was proven on a balance of probability before granting the declarations and mandatory injunction sought.

p. 2
03

Confirmation of interim mandatory injunction

Holding

The mandatory injunction granted interim on 17.12.2018 was confirmed at the determination of the suit

Reasoning

A ruling dated 17.12.2018 had already granted a mandatory injunction compelling the respondents to restore the hospital's drainage, to last until determination of the suit. At the final determination, having found the petition proven, the court confirmed that order, requiring the respondents to immediately reinstate the drainage channel as it was, or in the alternative to execute the recommendations in the letter dated 28th March 2018. This preserved the interim position and made it final.

p. 2

Legal principles established

#
  • Unrepresented parties are still entitled to the rules of natural justice; proceedings affecting life and property should not continue in their absence, but where served and absent, the petitioner need only prove its case on a balance of probability
  • Blocking a hospital's drainage system, contrary to an agreed remedial proposal, is unconstitutional, arbitrary, wrongful, null and void and engages the petitioner's constitutional rights

Court orders

#
  1. 1.Declared that the 1st, 2nd and/or 3rd respondents' actions of blocking the petitioner's drainage system are unconstitutional, arbitrary, wrongful, null and void and should be stopped forthwith
  2. 2.Confirmed the order of mandatory injunction issued on 17.12.2018 compelling the respondents to immediately reinstate the hospital's drainage channel as it then was, or in the alternative execute the recommendations in the letter dated 28th March 2018
  3. 3.Ordered that each party cater for their own costs of the suit

Authorities

#

Legislation

  • Constitution of Kenya 2010Article 25
  • Constitution of Kenya 2010Article 26
  • Constitution of Kenya 2010Article 40
  • Constitution of Kenya 2010Article 43(1)(a)

Cases cited (1)

  • Sangram Singh v. Election Tribunal, Koteh
    AIR 1955 SC 664
Jurisdiction invoked
Petition under the Constitution of Kenya 2010 invoking Articles 25, 26, 40 and 43(1)(a)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

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 [2019] KEELC 1374 (KLR)", Case Analysis (2019). Petition filed 13.11.2018 at Meru (number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1374/eng@2019-10-09

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