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ELCPartially AllowedNot stated in the judgment· [2020] KEELC 3807 (KLR)

Michae L Gatuma & 19 others v Victor Karithi & another [2020] KEELC 3807 (KLR)

Environment and Land Court
29 January 2020
LMLucy N. Mbugua
2,458 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Meru's Environment and Land Court dismissed residents' bid to stop the Athwana Market, ruling that technical affidavit errors don't sink a petition—but injunctions need real evidence.

What this practically means

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Executive summary

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The petitioners, residents of Karamene within Athwana Ward, sought temporary and permanent injunctions restraining construction of the Proposed Athwana Market on public land No. 215 Athwana/Akithi Section, alleging absence of change of user, lack of public participation, want of NEMA approvals, irregular subdivision and allocation of the land, and risk of pollution of the Waso Mara river. The respondents raised a preliminary objection that the petition and application were supported by a jointly sworn affidavit in breach of Order 19 Rule 5 of the Civil Procedure Rules and Section 16 of the Oaths and Statutory Declarations Act, and asserted that only a public toilet under the Ward Development Fund was being constructed, with no market allocated in the 2019/2020 budget. The court dismissed the preliminary objection, holding that striking out pleadings for procedural non-compliance is draconian given Article 159's command to administer justice without undue regard to technicalities, and that an affidavit may lawfully be sworn by two or more deponents in the first person plural. On the injunction, the court applied Giella v Cassman Brown and found no prima facie case: the documents showed only a toilet and fencing, no project proponent for a Karamene market existed, and the EIA report was merely advisory. The authorities cited by the petitioners were distinguished because a demonstrable project existed in each. Both the preliminary objection and the application were dismissed, with each party bearing their own costs.

Key legal issues

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01

Whether a jointly sworn affidavit or absence of a supporting affidavit renders a petition and application incurably defective

Holding

No - the preliminary objection fails; defects of form are curable and an affidavit may be drawn in the first person plural

Reasoning

Article 159 requires justice without undue regard to technicalities. Striking out pleadings for non-compliance with rules is draconian. The Court of Appeal in Francis Kariu Gakumbi held an affidavit may be sworn by two persons, and Waweru J in Moses Mukuria permitted first person plural affidavits. The petition lacked a supporting affidavit but attached a verifying affidavit, a curable defect.

p. 2
02

Whether the petitioners met the Giella v Cassman Brown criteria for an interlocutory injunction

Holding

They did not establish a prima facie case, so the injunction could not issue

Reasoning

The evidence showed only a public toilet and fencing under the Ward Development Fund, not a market. The budget extract mentioned a livestock market, not the Karamene market; the EIA report was merely advisory with no identified project proponent. The authorities relied on by the petitioners were distinguishable because in those cases a project existed and had been approved or stopped by NEMA.

p. 3

Legal principles established

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  • An affidavit may be sworn and drawn in the first person plural by two or more deponents; non-compliance with rules on form does not render pleadings incurably defective given Article 159's override of technicalities
  • An applicant for an interlocutory injunction must prove infringement of a legal right, and failure to establish a prima facie case ends the inquiry under Giella v Cassman Brown

Court orders

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  1. 1.The Preliminary Objection is hereby dismissed.
  2. 2.The Application dated 18.6.2019 is hereby dismissed.
  3. 3.Each party to bear their own costs of the application and the preliminary objection.

Authorities

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Legislation

  • Civil Procedure RulesOrder 19 Rule 5
  • Civil Procedure RulesOrder 19 Rule 7
  • Oaths and Statutory Declarations ActSection 16
  • Constitution of Kenya, 2010Article 159
  • Constitution of Kenya, 2010Article 23(3)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms), Practice and Procedure Rules 2013Not specified
  • Indian Code of Civil Procedure (Allahabad)O.19 Rule 7
  • Supreme Court Practice 1997O.41 Rule 2

Cases cited (12)

  • Patrick Ochieno Abachi & 6 Others v Kenya Anti-Corruption Commission
    [2010] eKLR
  • Duncan Gakuna Kionga & 2 others v Timboroa Hotels Limited
    (2008) eKLR
  • Francis Kariu Gakumbi & Another v Piliska Njoki Maina
    (2008) eKLR
  • Peter Kimonye and Others v Barclays Bank of Kenya Limited and 2 others
    HCC No. 403 of 2004
  • Nyayo Embakasi Residents Association suing through its registered officials George Ochola & 3 others v National Social Security Fund & another
    (2015) eKLR
  • Moses G. Mukuria (t/a Modana Pharmaceuticals & 4 others) v Madatali Chatur (t/a Chatur Radio Service)
    [2007] eKLR
  • Re Estate of Mwangi Nganga (deceased)
    (2005) eKLR
  • Mrao Limited v First American Bank of Kenya
    [2003] KLR 125
  • Giella v Cassman Brown & Company Ltd
    [1973] EA 358
  • Yellow Horse Inns Limited v Nduachi Company Limited & 2 others
    [2017] eKLR
  • Daniel Ngumba Karanja v Beatrice Wambui Mbogo
    [2006] eKLR
  • Hosea Kiplagat & 6 Others v National Environment Management Authority (NEMA) & 2 others
    [2015] eKLR
Jurisdiction invoked
Constitution of Kenya, 2010 (petition under the Constitution of Kenya (Protection of Rights and Fundamental Freedoms), Practice and Procedure Rules 2013)

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, "Michae L Gatuma & 19 others v Victor Karithi & another [2020] KEELC 3807 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3807/eng@2020-01-29

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