David Gachoki Njogu & 5 others v Sino Nydro Corporation Ltd & another [2021] KEELC 1239 (KLR)
The bottom line
#The Environment and Land Court in Nyahururu dismissed landowners' bid to stop a sewer project on their land, finding no expert evidence placed it on private parcels.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiffs established a prima facie case with a probability of success
No prima facie case established; no surveyor or expert report placed the sewer line on the Plaintiffs' parcels
The court accepted the Plaintiffs' registration as proprietors of the suit parcels but noted the real dispute was whether the sewer project ran through private land or the riparian reserve claimed by the Defendants. The court, without deciding conclusively, found no expert or surveyor evidence locating the sewer line relative to the parcels, and held planting trees and crops did not prove ownership. The first Giella principle therefore failed.
Whether the Plaintiffs demonstrated irreparable damage
No irreparable damage demonstrated; any loss is quantifiable in damages
Applying the Nguruman formulation of irreparable injury, the court held the Plaintiffs failed to show the nature and extent of any irreparable loss, that the loss could not be quantified in monetary terms, or that damages would be inadequate. It was not contended that the Defendants were impecunious or unable to meet an award of damages, so the second Giella principle also failed.
Whether a mandatory injunction could issue at the interlocutory stage
No; mandatory injunctions at interim stage require a very strong, clear and exceptional case
The court held that having failed the first two principles, the Plaintiffs were not entitled to the interim injunction, and in any event a mandatory injunction ordering removal of structures and restoration is a major relief reserved for clear and exceptional cases with a high probability of success, and must await trial.
Legal principles established
#- A mandatory injunction at the interlocutory stage is granted only in very clear and exceptional cases where the applicant has a very strong case with a high probability of success at trial.
- Planting trees and crops on contested land is not necessarily evidence of private ownership; expert survey evidence is required to locate a works project in relation to registered parcels.
Court orders
#- 1.The Plaintiffs' notice of motion dated 1st February, 2021 and amended on 26th March, 2021 is dismissed with costs to the Defendants.
- Jurisdiction invoked
- Section 63(c) & (e) of the Civil Procedure Act (Cap. 21)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "David Gachoki Njogu & 5 others v Sino Nydro Corporation Ltd & another [2021] KEELC 1239 (KLR)", Case Analysis (2021). Notice of motion dated 1st February, 2021, amended 26th March, 2021 (ELC suit, Nyahururu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1239/eng@2021-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.