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ELCAllowedPetition cited as relating to the Estate of Charles Mugane Njubi, L.R No. Kabete/Lower Kabete/523 (Thika ELC Petition)· [2020] KEELC 709 (KLR)

Charles Mugane Mbugua ( Suing as the Administrator/ Legal Representative of the Estate of Charles Mugane Njubi)(Deceased) v China Road & Bridge Corporation & 3 others [2020] KEELC 709 (KLR)

Environment and Land Court
5 November 2020
3,303 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Environment and Land Court stopped a company's quarrying next to a family's land, ruling that health and environmental damage can't be fixed with money later.

What this practically means

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Executive summary

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This is a ruling by the Environment and Land Court at Thika (L. Gacheru J) on a Notice of Motion dated 22nd July 2020 filed by the Petitioner/Applicant, the legal representative of the Estate of the Late Charles Mugane Njubi, registered owner of L.R No. Kabete/Lower Kabete/503, which borders the suit property L.R No. Kabete/Lower Kabete/523. The Applicant sought interlocutory injunctions restraining the 1st Respondent from quarrying, blasting and rock mining on the suit property, and a mandatory injunction compelling it to erect a secure fence and safety warning signage, pending determination of the Petition. The Applicant contended the quarrying was unlicensed, irregular, destructive to the environment, devalued his land, endangered beneficiaries and the public, and breached NEMA licence conditions including signage, operating hours and zoning. The 1st Respondent, a contractor on the Nairobi Western Bypass, countered that it leased the land as a licensed borrow pit with NEMA approval and a rehabilitation plan, that no activities were currently ongoing, that damages would suffice, and that the bypass served the greater public good. The Court applied the Giella v Cassman Brown conditions sequentially. It found a prima facie case, held that health and environmental pollution injuries are irreparable and not compensable in damages, found the balance of convenience favours the status quo, and held that public safety constituted special circumstances justifying a mandatory injunction. The Court found the application merited and allowed it entirely, quoting prayers c, e, f and g.

Key legal issues

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01

Prima facie case with probability of success

Holding

Established - the Applicant is legal representative of an adjoining landowner and the licence conditions and rehabilitation plan show potential for breach of his rights.

Reasoning

The Applicant is the legal representative of the registered owner of L.R 503, bordering the suit property. The Court noted the NEMA licence requires signage and other conditions, and the Rehabilitation Plan admits quarrying leaves hazardous water pods threatening public health. Given the apprehended devaluation of the Applicant's property and interference with peaceful enjoyment, there is a likelihood of breach of his rights.

p. 4
02

Irreparable harm not compensable by damages

Holding

Established - health and environmental pollution injuries cannot be compensated in damages.

Reasoning

The Court acknowledged that land degradation could be compensated in damages, but held that the health and environmental pollution concerns raised in the Rehabilitation Plan are injuries of a kind that cannot be adequately compensated by an award of damages, satisfying the second Giella limb.

p. 4
03

Balance of convenience

Holding

Not in doubt; balance of convenience favours maintaining the status quo.

Reasoning

The Court held it was not in doubt on the third limb, but noted that in any event the balance of convenience tilts in favour of maintaining the status quo. On this basis the interlocutory injunction orders were found to be deserved.

p. 4
04

Mandatory injunction at interlocutory stage

Holding

Granted - special circumstances exist because warning signage concerns public safety and the 1st Respondent failed to prove it had erected signage or secured the site.

Reasoning

Relying on Kenya Breweries Ltd v Washington O. Okeyo, the Court held mandatory injunctions at the interlocutory stage require special circumstances. The licence required warning signage; the 1st Respondent merely asserted the site was secured, which photographs disproved, and produced no evidence of signage. Public safety concerns constituted the special circumstances justifying the order.

p. 4

Legal principles established

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  • The three Giella v Cassman Brown conditions for an interlocutory injunction are sequential and must all be established.
  • Injuries concerning health and pollution of the environment cannot adequately be compensated by damages and amount to irreparable harm.
  • A mandatory injunction may be granted at the interlocutory stage where special circumstances exist, such as where public safety is at stake.

Court orders

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  1. 1.Injunction restraining the 1st Respondent, its agents, servants and/or employees from engaging in quarrying activities or otherwise dealing with L.R No. Kabete/Lower Kabete/523 pending hearing and determination of the Petition
  2. 2.Injunction restraining the 1st Respondent from engaging in blasting or other rock mining methods on L.R No. Kabete/Lower Kabete/523 pending determination of the Petition
  3. 3.Mandatory injunction compelling the 1st Respondent to erect a secure fence and mount safety warning signage around the quarry site pending determination of the Petition
  4. 4.Application dated 22nd July 2020 allowed entirely in terms of prayers no. c, e, f and g

Authorities

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Legislation

  • Constitution of KenyaNot specified (rights to clean and healthy environment, quiet possession referenced)
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (6)

  • Giella Vs Cassman Brown Co Ltd
    (1973) EA 358
  • Kibutiri Vs Kenya Shell
    Nairobi High Court Civil Case No. 3398 of 1980 (1981) KLR
  • E.A Industries Vs Trufoods
    (1972) EA 420
  • Mrao Ltd Vs First American Bank of Kenya Ltd & Others
    (2003) KLR
  • Paul Gitonga Wanjau Vs Gathuthi Tea Factory Co. Ltd & 2 Others
    Nyeri HCC No. 28 of 2015
  • Kenya Breweries Ltd & Ano Vs Washington O. Okeyo
    Civil Appeal No. 332 of 2000, 1 EA 109
Jurisdiction invoked
Not expressly stated; determined under the Court's civil and environmental jurisdiction at an interlocutory stage (Giella v Cassman Brown test)

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, "Charles Mugane Mbugua ( Suing as the Administrator/ Legal Representative of the Estate of Charles Mugane Njubi)(Deceased) v China Road & Bridge Corporation & 3 others [2020] KEELC 709 (KLR)", Case Analysis (2020). Petition cited as relating to the Estate of Charles Mugane Njubi, L.R No. Kabete/Lower Kabete/523 (Thika ELC Petition). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/709/eng@2020-11-05

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