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ELCAllowedNot stated in the judgment (Notice of Motion dated 21st July 2021)· [2021] KEELC 1881 (KLR)

Home Bridge Limited v Tatu City Limited [2021] KEELC 1881 (KLR)

Environment and Land Court
24 September 2021
4,207 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A Kenyan court allowed a developer to continue building near-completed homes despite a stop order, protecting buyers who purchased before completion.

What this practically means

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Executive summary

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The Plaintiff, a lessee of units within Precinct 4B-2 forming part of L.R 28867/1 (Tatu City), moved the Court by Notice of Motion dated 21st July 2021 seeking a temporary injunction restraining the Defendant from interfering with the construction, sale, occupation and quiet possession of Block 18 – Lifestyle Heights Estate. The Plaintiff contended it had obtained Development Control Committee (DCC) approvals in 2016 and, for amended plans adding a floor, in February 2019, plus Kiambu County Government approval, and that the Defendant's Stop Order of 9th March 2021 was issued in bad faith after construction was 90% complete and units sold off-plan to third parties. The Defendant, through the DCC Chairman, opposed the application, asserting the Plaintiff breached the Master Declaration and Lease by constructing ground floor plus four floors contrary to approved plans, which did not permit the additional floors and required protection of the neighbouring Kijani Ridge precinct. The court, applying Giella v Cassman Brown, held at the interlocutory stage it could not resolve contradictory affidavit evidence on which plans were approved. It found a prima facie case since the Plaintiff's leasehold right to construct was apparently infringed; found irreparable harm given off-plan sales to third parties and the state of construction; and found the balance of convenience favoured the Plaintiff, since the Defendant could be remedied by a demolition order at trial. The Notice of Motion was allowed entirely with costs to the Plaintiff.

Key legal issues

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01

Whether the Plaintiff/Applicant established a prima facie case with a probability of success

Holding

Yes - as lessee of the suit property with DCC and County approvals granted, an apparent right to construct was infringed by the Stop Order

Reasoning

The court accepted, without deciding disputed facts, that the Plaintiff is a lessee of the suit property and therefore holds an interest in it. Approvals were undisputedly granted by the DCC and the Kiambu County Government; the extent of those approvals is a trial matter. On the Mrao definition, an apparent infringement of the right to construct was shown.

p. 4
02

Whether the Plaintiff would suffer irreparable harm not compensable by damages

Holding

Yes - the off-plan units sold to third parties, and halting a 90%-complete construction, would cause loss not adequately compensable in damages

Reasoning

The Plaintiff's off-plan sales to third parties were unrebutted, as was the fact that construction was 90% complete. The court took judicial notice of construction costs, wear and tear of stalled buildings, and the financial and emotional impact on third-party purchasers. Damages would be inadequate if the construction were stopped.

p. 4
03

Where the balance of convenience lies

Holding

With the Plaintiff - the Defendant could be remedied by an order to demolish an extra floor if it ultimately succeeds

Reasoning

The court weighed the prejudice to each party. Halting the project would cause the Plaintiff and third parties substantial loss, whereas if the Defendant prevailed at trial, its rights could be vindicated by an order compelling demolition of any non-conforming floors, causing it no comparable prejudice.

p. 5

Legal principles established

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  • At interlocutory stage the court makes no conclusive findings of fact or law on contradictory affidavit evidence
  • The Giella test for temporary injunctions: prima facie case, irreparable harm, balance of convenience

Court orders

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  1. 1.Temporary injunction restraining the Defendant/Respondent, its Directors, Servants or Agents from interfering with the construction, sale, occupation and quiet possession of Block 18 – Lifestyle Heights Estate erected on a portion of Precinct 4B-2 forming part of L.R No. 28867/1 pending the hearing and determination of the suit
  2. 2.Costs of the application to the Plaintiff/Applicant

Authorities

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Cases cited (10)

  • Airland Tours and Travel Ltd vs National Industrial Credit Bank
    Milimani HCCC No.1234 of 2003
  • Giella vs Cassman Brown Co Ltd
    (1973) EA 358
  • Kibutiri vs Kenya Shell
    Nairobi High Court Civil Case No.3398 of 1980 (1981) KLR
  • E.A Industries vs Trufoods
    (1972) EA 420
  • Mrao Ltd vs First American Bank of Kenya Ltd & Others
    (2003) KLR
  • The Ledersachsen
    [1983] 2 Lloyd's Rep 600
  • Gitonga Wanjau vs Gathuthi Tea Factory Co. Ltd & 2 Others
    Nyeri HCC No.28 of 2015
  • Niaz Mohammed Janmohammed vs Commissioner for Lands & 4 Others
    (1996) eKLR
  • Muiruri vs Bank of Baroda (Kenya) Ltd
    (2001) KLR 183
  • Pius Kipchirchir Kogo vs Frank Kimeli Tenai
    (2018) EKLR
Jurisdiction invoked
Original civil jurisdiction over the suit; interlocutory application under the plaintiff's Notice of Motion dated 21st July 2021 (specific statutory basis not stated in the judgment)

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, "Home Bridge Limited v Tatu City Limited [2021] KEELC 1881 (KLR)", Case Analysis (2021). Not stated in the judgment (Notice of Motion dated 21st July 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1881/eng@2021-09-24

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