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ELCDismissedNot stated in judgment· [2019] KEELC 3749 (KLR)

Novapeku (PK) Construction and Engineering Company Limited & 2 others v County Government of Kiambu [2019] KEELC 3749 (KLR)

Environment and Land Court
8 April 2019
LGL. Gacheru
1,511 words in judgment
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The bottom line

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The Environment and Land Court in Thika refused to order Kiambu County to return confiscated containers, saying the business owners hadn't proven their case strongly enough yet.

What this practically means

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Executive summary

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The Plaintiffs sued the Defendant (County Government of Kiambu) claiming that on 22nd September 2017, without notice or lawful excuse, it trespassed onto business premises on Kiambu/Municipality Block 11/109 and carted away semi-permanent fabricated container stalls and merchandise, and they sought among other reliefs a mandatory injunction compelling reinstatement. By a Notice of Motion dated 26th October 2018, the 1st and 2nd Plaintiffs sought interlocutory orders compelling the Defendant to return containers MSKU2355812 (20ft) and MSKU8156016 (40ft), restraining it from using them, and granting access for inspection. The Defendant, through the County Attorney John W. Wanjohi, opposed the application, contending that the Plaintiffs defied an Enforcement Notice issued under Section 38(1) of the Physical Planning Act, erected the containers without development permission, failed to exhaust statutory dispute resolution mechanisms under Section 33(3), and that the orders sought were final in effect. Applying the Giella v Cassman Brown principles, the Court found the Applicants had not established a prima facie case with probability of success as defined in Mrao Ltd v First American Bank, since there was no evidence that the Defendant was using the containers and the compliance issues required a full trial. Because the Giella conditions are sequential, the other limbs fell away. On the mandatory limb, the Court held that such orders issue at the interlocutory stage only in special and exceptional circumstances, none of which existed, and there was no attempt to steal a march. The application was dismissed entirely with costs in the cause, and the parties were directed to comply with Order 11 within 45 days of the close of pleadings and set the suit down for expeditious full trial. Dated, signed and delivered at Thika on 8th April 2019 by L. Gacheru J.

Key legal issues

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01

Whether a prima facie case was established

Holding

Not established; the disputes over compliance with the Enforcement Notice and use of the containers require a full trial

Reasoning

The Applicants alleged the Defendant was using the confiscated containers for storage but produced no evidence. The Defendant claimed the containers were confiscated for non-compliance with an Enforcement Notice under Section 38(1) of the Physical Planning Act. These contested issues could only be resolved after viva voce evidence at trial, so the Applicants failed the first Giella limb.

p. 2
02

Whether mandatory interlocutory injunction should issue to compel return of the containers

Holding

Refused; no special or exceptional circumstances shown

Reasoning

Mandatory orders at the interlocutory stage are granted only in exceptional circumstances, such as where the case is clear and ought to be decided at once, or the defendant is attempting to steal a march. Here disputed issues exist as to whether the Plaintiffs flouted the Physical Planning Act and failed to comply with Enforcement Notices, and no evidence of stealing a match was shown.

p. 2

Legal principles established

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  • The Giella conditions for interlocutory injunctions are sequential; the second and third limbs are only addressed if a prima facie case is established
  • Mandatory injunctions are granted at the interlocutory stage only in special and exceptional circumstances

Court orders

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  1. 1.The Plaintiffs/Applicants' Notice of Motion dated 26th October 2018 is dismissed entirely
  2. 2.Costs to be in the cause
  3. 3.Parties to comply with Order 11 within 45 days after the close of pleadings, then set the suit for full trial expeditiously

Authorities

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Legislation

  • Physical Planning ActSection 38(1)
  • Physical Planning ActSection 33(3)
  • Constitution of KenyaArticle 159(2)(c)
  • Civil Procedure RulesOrder 11

Cases cited (5)

  • Giella vs Cassman Brown Co. Ltd
    1973 EA 358
  • Mrao Ltd vs First American Bank of Kenya Ltd & 2 Others
    (2003) KLR 125
  • Mutanga Tea & Coffee Co. Ltd vs Shikara Ltd & Another
    (2015) eKLR
  • Kenya Commercial Finance & Co. Ltd vs Afraha Education Society
    (2001) 1EA 86
  • Kenya Breweries Ltd & Ano vs Washington O. Okeyo
    Civil Appeal No.332 of 2000; 1EA 109
Jurisdiction invoked
Original jurisdiction under the Environment and Land Court Act (suit over land parcel Kiambu/Municipality Block 11/109); not expressly stated

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, "Novapeku (PK) Construction and Engineering Company Limited & 2 others v County Government of Kiambu [2019] KEELC 3749 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3749/eng@2019-04-08

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