Mary Christine Wanja Karanja & another v National Environment Management Authority & 3 others; Runda Evergreen Association Limited & another (Interested Parties) [2021] KEELC 1418 (KLR)
The bottom line
#A Nairobi court blocked enforcement of an environmental notice the agency failed to justify, showing unchallenged statutory notices can be defeated in Kenyan courts.
What this practically means
#Executive summary
#Key legal issues
#Prima facie case against the 1st Respondent
Established: the uncontroverted assertion that no natural water course passes through the suit properties and the 1st Respondent's failure to respond or justify its Improvement Notice rendered the notice legally baseless
The suit followed service of an Improvement Notice under section 117(3)(g) of EMCA accusing the Applicants of constructing a culvert on a water course without approval. The 1st Respondent did not respond to the application, leaving the Applicants' averments uncontroverted. The court held the burden lay on the 1st Respondent to justify the notice, and in its absence concluded the notice lacked legal basis, satisfying the prima facie case threshold.
Mandatory injunction against the 1st Respondent
Refused: no demonstrated statutory duty on the 1st Respondent to control storm water
Although a prima facie case on the notice's legality was made out, the mandatory limb sought to compel the 1st Respondent to control storm water. The court found no statutory duty on the 1st Respondent to control storm water, so the higher threshold for a mandatory injunction, requiring special circumstances and a high degree of assurance, was not met. Only the prohibitory injunction preserving the structures was justified.
Case against the 2nd, 3rd and 4th Respondents
Not established; no evidence they interfered with the Applicants' works or threatened demolition, and no evidence of a constitutional or statutory duty to control storm water as against the 3rd and 4th
The court found no evidence that these Respondents interfered with construction or threatened demolition. While the 2nd Respondent has the mandate to manage storm water drainage, the Applicants did not show an obligation to intervene in this case, and appeared to have addressed the problem themselves. The 3rd Respondent's contradictory position did not persuade the court the suit was baseless, but no prima facie case was shown against it.
Irreparable harm as against the 1st Respondent
Established for the prohibitory injunction: the Applicants risk demolition of their storm-water control structures
Having found a prima facie case against the 1st Respondent, the court considered irreparable harm. The Improvement Notice demanded removal of the culverts, and the 1st Respondent had threatened demolition. Damages could not adequately compensate for loss of the protective structures, so the prohibitory injunction restraining interference pending trial was warranted, with costs in the cause.
Legal principles established
#- A party served with a statutory notice that fails to respond or justify the notice leaves the court to conclude the notice lacks legal basis
- A temporary mandatory injunction requires a stronger case than a prohibitory injunction
- Where no prima facie case is established, the court need not consider the other Giella conditions
Court orders
#- 1.Applicants' application dated 11th March 2019 allowed in terms of prayer 3 (temporary injunction restraining interference, demolition, destruction or alteration of structures on L.R. No. 5989/122 and L.R. No. 5989/124) but as against the 1st Respondent only
- 2.Costs of the application shall be in the cause
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over land and environmental disputes (EMCA and environment/land use); not expressly stated in the extract
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kinyua (Suing on his behalf and as the legal representative of the Estate of his Late Brother Edward P Gitonga Nkari - Deceased) v Intex Construction Company Ltd[2023] KEELC 20398 (KLR)27 Sept 2023applied
Cite this brief
#Cite this brief
Caselaw, "Mary Christine Wanja Karanja & another v National Environment Management Authority & 3 others; Runda Evergreen Association Limited & another (Interested Parties) [2021] KEELC 1418 (KLR)", Case Analysis (2021). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1418/eng@2021-10-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.