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ELCPartially AllowedNot stated in the judgment· [2019] KEELC 2285 (KLR)

Chuka Igamba Ng’ombe Development Association v County Government of Tharaka Nithi [2019] KEELC 2285 (KLR)

Environment and Land Court of Kenya at Chuka
23 July 2019
PNP. M. Njoroge
1,314 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Chuka court temporarily stopped the Tharaka Nithi county government from altering a townspeople's monument, proving residents can protect public landmarks through the courts.

What this practically means

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Executive summary

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This is an ex parte interlocutory ruling delivered on 23rd July 2019 at Chuka in an application dated 23rd July 2019 brought by the Chuka Igamba Ng'ombe Development Association against the County Government of Tharaka Nithi under Order 40 Rules 1 and 4(1) of the Civil Procedure Rules, Sections 3A and 63(c) of the Civil Procedure Act and Articles 22, 23, 40 and 159(2) of the Constitution. The plaintiff sought interim injunction orders restraining the defendant from interfering with the Centenary Celebrations Monument erected at Chuka town, which the plaintiff said it had initiated and erected through the Chuka Town Centenary Celebrations Committee (later converted into the Association by minute MIN.131/4Cs/2014) to commemorate 100 years of Chuka town, and which was unveiled by President Uhuru Kenyatta. The plaintiff, through the affidavit of Gitari Kea, alleged that the County Government, without public participation, had embarked on redesigning, remodelling, defacing and disfiguring the monument, and had continued construction works at night on 19th, 20th and 21st July 2019 despite an undertaking given by the County Executive member for Lands at a meeting mediated by the County Commissioner on 17th July 2019 that works would cease. Counsel for the plaintiff urged that unless the orders issued, the suit would be rendered nugatory. The court declined to certify the matter urgent but directed a priority hearing; it granted prayer 2, restraining interference with the monument pending hearing and determination of the application, in terms of Section 63(e) of the Civil Procedure Act, noting the court was going on recess the following week. The plaintiff was ordered to serve the application and orders within two days, and the matter was fixed for hearing and directions on 30th July 2019.

Key legal issues

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01

Whether interim injunctive relief was warranted to restrain interference with the monument

Holding

The court granted prayer 2 on an interim basis under Section 63(e) of the Civil Procedure Act, restraining the defendant from interfering with the monument pending hearing and determination of the application

Reasoning

The plaintiff had established, through the affidavit of Gitari Kea and annexed minutes and photographs, that it initiated and erected the monument and that the defendant was allegedly continuing construction works at night despite a mediated undertaking to cease. With the court going on recess the following week, the court granted the interim injunction to preserve the position until the application could be heard inter partes on 30th July 2019.

p. 3
02

Whether the application merited certification as urgent and ex parte hearing

Holding

The court declined to certify the matter as urgent but directed that it be heard on a priority basis

Reasoning

Although the plaintiff sought urgency certification, dispensation of service and ex parte hearing, the court instead granted the substantive interim protection while preserving the defendant's right to be served and heard, fixing the inter partes hearing within days. The urgency prayer was not certified, and service of the application and interim orders was ordered within two days.

p. 3

Legal principles established

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  • An interim injunction may issue under Section 63(e) of the Civil Procedure Act to preserve the subject matter pending hearing of the application, particularly where the court is about to go on recess

Court orders

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  1. 1.Matter is NOT certified urgent but is to be heard on priority basis
  2. 2.Prayer 2 is granted pending hearing and determination of the application in terms of Section 63(e) of the Civil Procedure Act
  3. 3.The plaintiff is ordered to serve the application and the orders issued herein within 2 days
  4. 4.The parties to come to court for hearing of the application and/or other directions on 30th July, 2019

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rules 1 and 4(1)
  • Civil Procedure Act, Cap. 21 Laws of KenyaSection 3A
  • Civil Procedure Act, Cap. 21 Laws of KenyaSection 63(c)
  • Civil Procedure Act, Cap. 21 Laws of KenyaSection 63(e)
  • Constitution of Kenya, 2010Article 22(b), (c) and (d)
  • Constitution of Kenya, 2010Article 23
  • Constitution of Kenya, 2010Article 40
  • Constitution of Kenya, 2010Article 159(2)(a), (b), (d) and (e)
Jurisdiction invoked
Order 40 Rules 1 and 4(1) of the Civil Procedure Rules, Sections 3A and 63(c) of the Civil Procedure Act, Cap. 21, and Articles 22, 23, 40 and 159(2) of the Constitution of Kenya, 2010

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, "Chuka Igamba Ng’ombe Development Association v County Government of Tharaka Nithi [2019] KEELC 2285 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2285/eng@2019-07-23

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