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ELCDismissedNotice of Motion dated 13.5.2019 (arising from Tigania ELC No. 207 of 2018)· [2020] KEELC 3625 (KLR)

George Kiramana Abuaba v Kenya National Highway Authority [2020] KEELC 3625 (KLR)

Environment and Land Court
12 February 2020
LMLucy N. Mbugua
1,621 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court refused to stop KeRRA demolishing a wall built on a road reserve, saying public interest outweighed private loss that money could compensate.

What this practically means

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Executive summary

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The applicant, George Kiramana Abuaba, moved the Environment and Land Court at Meru by Notice of Motion dated 13.5.2019 seeking a temporary injunction restraining the Kenya Rural Roads Authority from demolishing his perimeter wall on LR NO. ATHING'A/ATHANJA/5400, where his home, rentals, posho mill and shop stand, pending the hearing of his application and appeal from Tigania ELC No. 207 of 2018, where interim orders had been vacated on 28/3/2019. The respondent, through Brenda Rao's replying affidavit, countered that the applicant had encroached on the road reserve, that a notice had been issued after a site visit on 29/10/2018, that any loss was quantifiable in damages, and that it was lawfully exercising its statutory mandate to reclaim the public road reserve. The court first expunged the applicant's further supporting affidavit filed out of time, but declined to expunge the annextures, holding that their failure to be dated by the commissioner for oaths was a curable irregularity under Article 159(2) of the Constitution, distinguishing Mbalanya. Applying the Giella principles and the Court of Appeal's guidance in Joseph Wainaina Kinyanjui, the court held that a public body reclaiming a road reserve should not be enjoined by private citizens, that public interest superseded the applicant's private interest, and that the wall had already been demolished, rendering the injunction spent. The application was dismissed with costs to abide the outcome of the appeal.

Key legal issues

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01

Whether a temporary injunction should issue restraining the respondent from demolishing the applicant's perimeter wall

Holding

The application for a temporary injunction was dismissed as unmerited

Reasoning

Applying Giella v Cassman Brown, the applicant failed to demonstrate a prima facie case with probability of success. The respondent is a public body reclaiming a public road reserve from encroachment; the Court of Appeal in Joseph Wainaina Kinyanjui warns against enjoining such public duties. The wall had already been demolished, so the injunction was spent, and any damage is compensable in damages.

p. 2
02

Whether undated affidavit annextures are fatally defective

Holding

No - the defect is curable under Article 159(2) of the Constitution

Reasoning

Distinguishing Francis A. Mbalanya v Cecilia N. Waema, where annextures were completely unsealed and unmarked, the court noted the present documents were sealed and marked but not dated. Relying on the Supreme Court's explanation of Article 159(2)(b) in Raila Odinga, procedural prescriptions should not trump substantive justice.

p. 2

Legal principles established

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  • A public body mandated to build and protect public roads should not be hindered by injunctions granted to private citizens where there is encroachment on a road reserve, and the encroacher can adequately be compensated in damages
  • Failure by a commissioner for oaths to date affidavit annextures, where the documents are otherwise sealed and marked, is a curable irregularity under Article 159(2) of the Constitution

Court orders

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  1. 1.The applicant's further supporting affidavit filed on 24/7/2019 stands expunged from the record
  2. 2.The failure to date the annextures by the commissioner of oaths is cured by Article 159(2) of the Constitution and the annextures were not expunged
  3. 3.The Notice of Motion dated 13.5.2019 is dismissed
  4. 4.Costs shall abide the outcome of the appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rules 1, 2 & 3
  • Civil Procedure ActSections 1A, 1B, 3 & 63(e)
  • Constitution of Kenya 2010Article 159(2)(b)
  • Oaths and Statutory Declarations RulesRule 8

Cases cited (5)

  • Giella v Cassman Brown & Co. Ltd
    [1973] E.A 358
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 others
    [2003] eKLR
  • Francis A. Mbalanya v Cecilia N. Waema
    [2017] eKLR
  • Joseph Wainaina Kinyanjui & another v Kenya National Highways Authority
    [2018] eKLR
  • Raila Odinga and Others v Independent Electoral and Boundaries Commission and Others
    Nairobi Petition No. 5 of 2013 [2013] eKLR
On appeal from
Magistrates' Court (Tigania)
Tigania ELC No. 207 of 2018
Jurisdiction invoked
Order 40 Rules 1, 2 & 3 of the Civil Procedure Rules; Sections 1A, 1B, 3 & 63(e) of the Civil Procedure Act (Cap 21); Constitution of Kenya 2010

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, "George Kiramana Abuaba v Kenya National Highway Authority [2020] KEELC 3625 (KLR)", Case Analysis (2020). Notice of Motion dated 13.5.2019 (arising from Tigania ELC No. 207 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3625/eng@2020-02-12

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