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)
The bottom line
#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
#Executive summary
#Key legal issues
#Prima facie case with probability of success
Established - the Applicant is legal representative of an adjoining landowner and the licence conditions and rehabilitation plan show potential for breach of his rights.
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.
Irreparable harm not compensable by damages
Established - health and environmental pollution injuries cannot be compensated in damages.
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.
Balance of convenience
Not in doubt; balance of convenience favours maintaining the status quo.
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.
Mandatory injunction at interlocutory stage
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.
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.
Legal principles established
#- 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
#- 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.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.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.Application dated 22nd July 2020 allowed entirely in terms of prayers no. c, e, f and g
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.