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ELCPartially AllowedNot stated in the extract· [2021] KEELC 1418 (KLR)

Mary Christine Wanja Karanja & another v National Environment Management Authority & 3 others; Runda Evergreen Association Limited & another (Interested Parties) [2021] KEELC 1418 (KLR)

Environment and Land Court
18 October 2021
3,057 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Applicants, registered proprietors of L.R. No. 5989/122 and L.R. No. 5989/124 at Ridgeways along Kiambu Road, moved the court by Notice of Motion dated 11th March 2019 seeking a temporary injunction restraining the Respondents from interfering with or demolishing structures they had erected on the suit properties, and an order compelling the Respondents to control storm water flowing from Runda Evergreen Estate into the properties. The application followed an Improvement Notice served on the Applicants by the 1st Respondent under section 117(3)(g) of EMCA, accusing them of constructing a culvert on a water course without approval. The 1st Respondent did not respond to the application. The 3rd Respondent opposed, contending its mandate is limited to national roads, that a stream (Water of Life/Whiskey River) flows through the properties, and that the properties sit on a wetland, urging dismissal or striking out against it. Applying Giella v Cassman Brown and the mandatory injunction principles in Locabail and Shepherd Homes, the court found a prima facie case with probability of success against the 1st Respondent, since the Applicants' claims were uncontroverted and the 1st Respondent failed to justify its notice. Irreparable harm was also shown as to the prohibitory injunction. However, no statutory duty to control storm water was shown against the 1st Respondent, and no prima facie case was established against the 2nd, 3rd and 4th Respondents. The court allowed the application in terms of prayer 3 against the 1st Respondent only and ordered costs of the application to be in the cause.

Key legal issues

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01

Prima facie case against the 1st Respondent

Holding

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

Reasoning

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.

p. 3
02

Mandatory injunction against the 1st Respondent

Holding

Refused: no demonstrated statutory duty on the 1st Respondent to control storm water

Reasoning

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.

p. 3
03

Case against the 2nd, 3rd and 4th Respondents

Holding

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

Reasoning

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.

p. 4
04

Irreparable harm as against the 1st Respondent

Holding

Established for the prohibitory injunction: the Applicants risk demolition of their storm-water control structures

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 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. 2.Costs of the application shall be in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40
  • Constitution of Kenya, 2010Fourth Schedule, Part 2, section 11
  • Environmental Management and Co-ordination Act, 1999 (referred to as EMCA, 1990)Section 3
  • Environmental Management and Co-ordination ActSections 7 and 9
  • Environmental Management and Co-ordination ActSection 41
  • Environmental Management and Co-ordination ActSection 117(3)(g)
  • Kenya Roads ActSection 4

Cases cited (10)

  • Giella v Cassman Brown & Co. Ltd
    [1973] E.A 358
  • Mahmood Shariff Ali & 10 Others v Safaricom Limited
    [2018] eKLR
  • Hosea Kiplagat & 6 Others v National Environment Management Authority (NEMA) & 2 Others
    [2018] eKLR
  • Mrao Limited v First American Bank of Kenya Limited & 2 Others
    [2003] KLR 125
  • Kyangaro v Kenya Commercial Bank Limited & Another
    [2004] 1 KLR 126
  • Patrick Waweru Mwangi & Another v Housing Finance Co. of Kenya Limited
    [2013] eKLR
  • Technomatic Limited t/a Promopack Company v Kenya Wine Agencies Limited & another
    [2014] eKLR
  • Nguruman Limited v Jan Bonde Nielsen & 2 Others
    [2014] eKLR
  • Locabail International Finance Limited v Agro-Export
    (1988) 1 All ER 901
  • Shepherd Homes Ltd. v Shandahu
    [1971] 1 Ch.304
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

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.