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ELCDismissedNotice of Motion Application dated 4th July 2019 (suit number not stated in the judgment)· [2020] KEELC 1703 (KLR)

Racom Limited v Kenya Urban Roads Authority (KURA) & another [2020] KEELC 1703 (KLR)

Environment and Land Court
16 July 2020
2,613 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A landowner who can be paid money for storm water damage cannot stop road drainage works through his property, the Environment and Land Court has ruled.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Thika (L. Gacheru J) on a Notice of Motion dated 4th July 2019 in which the Plaintiff/Applicant, the registered owner of L.R No. 10910/198 and L.R No. 10901/356, sought a temporary injunction restraining the Defendants from channelling Garissa Road storm water through the suit properties or interfering with his peaceful possession pending the hearing of the suit. The Plaintiff contended that the channelling was unauthorised, that no wayleave was sought, that public participation was limited to Kahawa Sukari residents, and that no Environmental Impact Assessment preceded the works. The 1st Defendant, through its Deputy Director in charge of survey, countered that the project underwent public participation and stakeholder forums, was licensed by NEMA after an environmental and social impact assessment, and that a 3m storm water drainage wayleave bounds the properties per the deed plans and title memoranda. The court framed one issue: whether the Applicant met the threshold for interim orders. Applying Giella v Cassman Brown, it found a prima facie case since ownership was undisputed and storm water was being channelled into the properties. However, it held that any harm would be compensable in damages, noting the Plaintiff's own subdivision plan provided for a wayleave, so irreparable harm was not established. Since the Giella conditions are sequential, the balance of convenience limb fell away. The application was dismissed entirely with costs in the cause. The ruling was delivered virtually pursuant to COVID-19 directives.

Key legal issues

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01

Whether the Plaintiff established a prima facie case with a probability of success

Holding

Yes - the Plaintiff is the acknowledged registered owner of the suit properties and the Defendants have been channelling storm water into them, which if done illegally would infringe the Plaintiff's rights

Reasoning

The court noted that registered ownership was not disputed and that the averred channelling of storm water, if illegal, would infringe the Plaintiff's rights. On that basis it found a prima facie case with probability of success at that interim stage, without making conclusive findings on the disputed wayleave.

p. 3
02

Whether the Plaintiff would suffer irreparable loss not adequately compensable by damages

Holding

No - any harm caused can be compensated by way of damages, particularly as the Plaintiff's own subdivision plan provided for a wayleave

Reasoning

The court accepted that the NEMA licence and project documents indicated due procedure was followed, and observed that the Plaintiff's own subdivision plan provided for a wayleave. It held that harm from channelling storm water was compensable in damages, invoking Wairimu Mureithi v City Council of Nairobi.

p. 3
03

Whether the balance of convenience favours the grant of the injunction

Holding

The third limb did not arise because the Plaintiff failed on irreparable harm, the conditions being sequential

Reasoning

Relying on Kenya Commercial Finance & Co. Ltd v Afraha Education Society, the court held that the Giella conditions are sequential; having failed on the second limb, the third limb automatically failed and the application could not succeed.

p. 3
04

Whether the existence of a wayleave over the suit properties could be determined at the interlocutory stage

Holding

No - it is a disputed fact which the court cannot conclusively determine at the interlocutory stage

Reasoning

The 1st Defendant contended a 3m storm water drainage wayleave exists per the deed plans and title memoranda; the Plaintiff disputed the authenticity of the survey plans and the existence of wayleaves in its titles. The court held these disputed facts could not be resolved at the interlocutory stage, citing Airland Tours and Travel Ltd v National Industrial Credit Bank.

p. 3

Legal principles established

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  • The conditions for granting a temporary injunction are that the applicant must show a prima facie case with probability of success, irreparable injury not compensable by damages, and, if in doubt, the balance of convenience - and the conditions are sequential
  • In an interlocutory application, the court is not required to make conclusive or definitive findings of fact or law on contradictory affidavit evidence
  • No injunction should normally be granted where damages recoverable at common law would be an adequate remedy and the defendant is financially able to pay them

Court orders

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  1. 1.The Notice of Motion Application dated 4th July 2019 is dismissed entirely
  2. 2.Costs to be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 21 rule 1

Cases cited (9)

  • 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
  • Eldo City Limited …Vs… Corn Products Kenya Ltd & another
    [2013] eKLR
  • Mrao –vs- First American Bank Ltd & 2 others
    (2003) KLR 125
  • Airland Tours and Travel Ltd…Vs… National Industrial Credit Bank
    Milimani HCCC No.1234 of 2003
  • Paul Gitonga Wanjau…Vs… Gathuthi Tea Factory Co. Ltd & 2 Others
    Nyeri HCC No.28 of 2015
  • Wairimu Mureithi..Vs... City Council of Nairobi
    Civil Appeal No.5 of 1979 (1981) KLR 322
  • Kenya Commercial Finance & Co. Ltd…Vs… Afraha Education Society
    (2001) 1 EA 86
Jurisdiction invoked
Inherent jurisdiction to grant temporary injunctions pending hearing and determination of the suit (Giella v Cassman Brown principles); Civil Procedure Rules Order 21 rule 1 referenced in the delivery note

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, "Racom Limited v Kenya Urban Roads Authority (KURA) & another [2020] KEELC 1703 (KLR)", Case Analysis (2020). Notice of Motion Application dated 4th July 2019 (suit number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1703/eng@2020-07-16

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