Lydia Kaguna Japeth & 2 others v Mbesa Investment Limited & 2 others [2021] KEELC 421 (KLR)
The bottom line
#Mombasa's Environment and Land Court has halted Mbesa Investments' three-tower beachfront development while neighbours' environmental challenge and a related NEMA licence appeal are decided.
What this practically means
#Executive summary
#Key legal issues
#Whether the threshold for conservatory orders was met
The Court found the Petitioners satisfied all the principles for grant of conservatory orders
Applying the Munya principles, the Court held the Petitioners demonstrated an arguable prima facie case with likelihood of success; that absent conservatory orders they would suffer prejudice from the ongoing construction; that granting the orders would enhance constitutional values; that denial would render the petition nugatory; and that public interest favoured granting the orders given the alleged regulatory irregularities in the approvals, change of user and EIA processes.
Effect of the earlier ruling on the preliminary objection and the pending NET appeal
The Court held the earlier ruling impliedly stayed the proceedings pending the NET's decision in NET Appeal No. 30 of 2020 on the legality of the EIA licence
The Court construed its own earlier ruling dismissing the preliminary objection (which had relied on Benson Ambuti Adega v Kibos Distillers on the ELC's jurisdiction) as implying a stay of proceedings pending the NET's determination of the EIA licence issue. It therefore directed that the Petition be stayed pending the NET outcome, after which the ELC would hear the Petition.
Legal principles established
#- In a conservatory order application the court makes no definitive findings of fact or law but assesses whether a prima facie case exists and whether prejudice will ensue
- An applicant for conservatory orders must demonstrate an arguable prima facie case with likelihood of success, prejudice if denied, enhancement of constitutional values, that the petition would be rendered nugatory, and public interest
Court orders
#- 1.Conservatory order restraining the 1st Respondent from proceeding with the construction of Towers A, B and C comprising 126 units, swimming pools, underground water tanks, sea wall and associated facilities on LR MN/1/5503, MN/1/5504 and MN/1/3412 pending hearing and determination of the Petition
- 2.Stay of the hearing and determination of the Petition pending the final outcome of NET Appeal No. 30 of 2020 (Mbesa Investment Limited v NEMA) on the legality of the EIA licence
- 3.Thereafter, depending on the outcome of the NET decision, the Court to proceed to hear the issues raised in the Petition
- 4.Mention on 3rd March 2022 to ascertain progress and outcome of the NET proceedings
- 5.Petition to be heard by viva voce evidence and reliance on pleadings and written submissions
- 6.Costs to be in the cause
- Jurisdiction invoked
- Articles 22, 23, 70 and 162(2)(b) of the Constitution; Sections 4 and 13 of the Environment and Land Court Act; Section 3 of EMCA
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lydia Kaguna Japeth & 2 others v Mbesa Investment Limited & 2 others [2021] KEELC 421 (KLR)", Case Analysis (2021). Not stated in the judgment (Petition and Notice of Motion dated 9th July 2020, filed 9th July 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/421/eng@2021-12-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.