Judy Nyaruai Muhoro v Nairobi City County Government & 6 others [2019] KEELC 4752 (KLR)

Environment and Land Court

23 January 2019

KBK. BOR

853 words in judgment

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The bottom line

A Nairobi court stopped short of protecting a Loresho perimeter wall, instead freezing the situation for six months so compliance with planning approvals can be tested.

What this practically means

Executive summary

The Plaintiff, registered proprietor of LR Nairobi/Block 90/126, Loresho, instituted a suit by plaint filed on 3rd October 2018 together with a Notice of Motion seeking a temporary injunction to restrain the Defendants from demolishing or interfering with a perimeter wall she had erected around the Suit Property. She contended that in February 2016 she presented a development plan to the 1st Defendant (the county government), paid the requisite approval fees, obtained approval, and complied with a six-metre riparian reserve measured from the river's high-water mark before constructing the masonry wall, which in August 2018 was earmarked for demolition. The 1st Defendant, through its Chief Officer in charge of Urban Planning, admitted granting approval but on conditions - notably that the fence bordering the twelve-metre riparian reserve be chain link to allow free flow of the river - conditions allegedly breached by the masonry wall. The 5th Defendant (NEMA) stated the wall was not registered with it for approval. The 3rd, 4th, 6th and 7th Defendants filed grounds of opposition relying on Article 69 of the Constitution, asserting the wall sat on riparian land identified for reclamation by a multi-agency team. Applying the settled principles for interlocutory injunctions - prima facie case, inadequacy of damages, and balance of convenience - the court declined to grant the injunction in the terms sought. Instead, citing the wall's continued existence, it ordered the parties to maintain the status quo for six months, within which the suit must be set down for hearing on whether the Plaintiff complied with the legal requirements and whether the wall ought to be brought down. Each party was to bear its own costs. Judgment was delivered at Nairobi on 23rd January 2019 by K. Bor, Judge.

Key legal issues

Prima facie case for temporary injunction against demolition of perimeter wall

Holding

The court found the wall had been in existence for some time and that the just course was preservation of the status quo rather than granting or refusing the injunction outright, leaving compliance with approval conditions for trial

Reasoning

The court applied the settled Giella-type principles: prima facie case, adequacy of damages, and balance of convenience. Because the wall was already erected and its lawfulness (compliance with riparian reserve requirements and Section 38 of the Physical Planning Act) was contested, the court chose interim preservation of the status quo for six months with expedited hearing rather than a final-looking interlocutory determination.

p. 2

Legal principles established

The principles for an interlocutory injunction are that the applicant must show a prima facie case with probability of success, that damages would not be an adequate remedy, and if in doubt the court decides on a balance of convenience

Court orders

1.Temporary injunction to restrain the Defendants or their agents from demolishing or interfering with the perimeter wall not expressly granted; instead status quo ordered
2.Parties to maintain the status quo for six months, during which the suit must be set down for hearing on whether the Plaintiff complied with the legal requirements in erecting the wall and whether the wall ought to be brought down
3.Each party to bear its own costs

Authorities

Legislation

Constitution of Kenya, 2010Article 69
Physical Planning ActSection 38

Jurisdiction invoked: Original civil jurisdiction under the Environment and Land Court Act over land and environment disputes concerning LR Nairobi/Block 90/126, Loresho

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Judy Nyaruai Muhoro v Nairobi City County Government & 6 others [2019] KEELC 4752 (KLR)", Case Analysis (2019). Not stated in the judgment provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4752/eng@2019-01-23

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