Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNotice of Motion dated 20th April 2020 (suit on LR No.7158/81 v LR No.7158/447)· [2020] KEELC 1040 (KLR)

Zoa Limited v Arvind Mani & 2 other [2020] KEELC 1040 (KLR)

Environment and Land Court
15 October 2020
EOE. O. OBAGA
1,031 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

The Environment and Land Court refused to stop construction because the developer had all approvals and the neighbour never challenged them before the proper tribunals.

What this practically means

#

Executive summary

#
The Plaintiff/Applicant, registered owner of LR No.7158/81, moved the Environment and Land Court by a Notice of Motion dated 20th April 2020 seeking an injunction restraining the 1st Defendant/Respondent from continuing construction on the adjacent LR No.7158/447, alleging that the Respondent lacked the requisite approvals and that the County approval ignored zoning regulations. The Nairobi City County and NEMA were also sued. The parties had earlier entered a consent under which the Respondent agreed to stop construction until all approvals were obtained, and he paid throw-away costs of Kshs.261,000/-. The consent was never adopted as a court order. The Respondent opposed the application, asserting he had County approval from December 2019 for construction of a single dwelling house (no change of user being required, the previous owner's application having been abandoned), and that pursuant to the consent he later obtained NEMA and National Construction Authority approvals before resuming construction. Justice E. O. Obaga framed a single issue: whether the Applicant had demonstrated a prima facie case for an injunction. Holding that the Respondent had obtained all requisite approvals, the court found no basis to stop the construction. The court held that the only consequence of commencing construction without development permission is a fine not exceeding Kshs.500,000 or two months' imprisonment under section 57 of the Physical and Land Use Planning Act, enforceable by the authorities, not the civil court. Grievances over the grant of approvals were for the National Environment Tribunal or the County Physical and Land Use Planning Liaison Committee. Applying Deepak Harakch v Anmol Limited, the application was dismissed with costs to the Respondent.

Key legal issues

#
01

Whether the Applicant demonstrated a prima facie case warranting an injunction against continued construction

Holding

No prima facie case was made out because the 1st Respondent had obtained all requisite approvals before resuming construction; the application was dismissed with costs.

Reasoning

The court noted the 1st Respondent had County approval from December 2019 and, pursuant to the consent with the Applicant, obtained NEMA and National Construction Authority approvals before continuing. Any grievance about the manner in which the approvals were granted lay before statutory tribunals, not the civil court at this stage. Commencement without permission attracted only a statutory penalty under section 57 of the Physical and Land Use Planning Act, which the court could not itself enforce. Following Deepak Harakch v Anmol Limited, an injunction was refused where statutory mechanisms were not exhausted.

p. 2

Legal principles established

#
  • The only sanction for commencing construction without development permission is a statutory fine or imprisonment, enforceable by the authorities, not by way of civil injunction once approvals are regularised
  • A party dissatisfied with grant of planning approvals and licences must first exhaust the statutory mechanisms (National Environment Tribunal and County Physical and Land Use Planning Liaison Committee) before seeking a civil injunction

Court orders

#
  1. 1.The Applicant's Notice of Motion dated 20th April 2020 is dismissed
  2. 2.Costs of the application awarded to the Respondent

Authorities

#

Legislation

  • Physical and Land Use Planning Actsection 57
  • Physical Planning Act (Now repealed)

Cases cited (1)

  • Deepak Harakch & another Vs Anmol Limited & 4 others
    (2018) e KLR
Jurisdiction invoked
Civil jurisdiction of the Environment and Land Court over disputes relating to development on land (Physical and Land Use Planning Act)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (5)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Zoa Limited v Arvind Mani & 2 other [2020] KEELC 1040 (KLR)", Case Analysis (2020). Notice of Motion dated 20th April 2020 (suit on LR No.7158/81 v LR No.7158/447). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1040/eng@2020-10-15

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