Racom Limited v Kenya Urban Roads Authority (KURA) & another [2020] KEELC 1703 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Plaintiff established a prima facie case with a probability of success
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
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.
Whether the Plaintiff would suffer irreparable loss not adequately compensable by damages
No - any harm caused can be compensated by way of damages, particularly as the Plaintiff's own subdivision plan provided for a wayleave
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.
Whether the balance of convenience favours the grant of the injunction
The third limb did not arise because the Plaintiff failed on irreparable harm, the conditions being sequential
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.
Whether the existence of a wayleave over the suit properties could be determined at the interlocutory stage
No - it is a disputed fact which the court cannot conclusively determine at the interlocutory stage
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.
Legal principles established
#- 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
#- 1.The Notice of Motion Application dated 4th July 2019 is dismissed entirely
- 2.Costs to be in the cause
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.