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ELCPartially AllowedPetition dated 18th May 2021 (court file number not stated in the judgment)· [2021] KEELC 2724 (KLR)

Francis Mugarami Kamau & 6 others v Sycamore Pine Limited & 2 others; National Environment Management Authority & another (Interested Parties) [2021] KEELC 2724 (KLR)

Environment and Land Court
14 June 2021
LGL. Gacheru
739 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan court halted construction at Migaa Golf Estate until it decides whether it has jurisdiction, warning that building without approvals or an environmental assessment is risky.

What this practically means

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Executive summary

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The Petitioners filed a Petition dated 18th May 2021 seeking, among other reliefs, a declaration that the Respondents had breached Articles 40 and 42 of the Constitution by allowing and/or carrying out unlawful construction on unit No. CC01 on LR No. 29059 within the Migaa Integrated Golf Estate, Kiambu County. Simultaneously they filed a Notice of Motion dated 20th May 2021 seeking conservatory orders to restrain the 1st Respondent from constructing, selling and advertising 1959 low-cost apartments on the suit property, or in the alternative maintenance of status quo. The Respondents filed Notices of Preliminary Objection contending that the Court lacked jurisdiction and that the Petitioners should have first engaged alternative dispute resolution mechanisms, including the Liaison Committee of the Kiambu Executive Committee. The 2nd Interested Party, Migaa Integrated Golf Estate Residents Association, supported the grant of conservatory orders, arguing that financial implications were insufficient ground to refuse them. The Court noted that construction had commenced, that the 3rd Respondent confirmed no development approvals had yet been issued, and that there was no evidence of an Environmental Impact Assessment from the 1st Interested Party. Finding that the jurisdictional question had to be determined before the application could proceed, the Court held that status quo needed to be maintained in the meantime. It allowed the application in terms of Prayer (c), ordering that no further construction take place on the subject property pending hearing and determination of the Preliminary Objection. The primary conservatory orders sought were not granted. No costs order was made. The ruling was delivered virtually under COVID-19 directions.

Key legal issues

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Whether conservatory orders or maintenance of status quo should issue at the interlocutory stage

Holding

The Court granted the alternative relief of maintenance of status quo, restraining further construction pending determination of the Preliminary Objection on jurisdiction

Reasoning

The Court observed that construction of the alleged low-cost apartments had commenced, that the 3rd Respondent confirmed no development approvals had been issued, and that there was no evidence of an Environmental Impact Assessment from the 1st Interested Party. Because a jurisdictional question had to be resolved first, the Court preserved the position by ordering status quo rather than granting the primary conservatory orders sought.

p. 2

Legal principles established

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  • Where a question of jurisdiction remains undetermined, the Court may preserve the substratum of the matter by ordering maintenance of status quo pending determination of the preliminary objection

Court orders

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  1. 1.Status quo to be maintained, with no further construction on the subject property (unit No. CC01 on LR No. 29059, Migaa Integrated Golf Estate, Kiambu County) pending the hearing and determination of the pending Preliminary Objection
  2. 2.The Notice of Motion Application dated 20th May 2021 allowed in terms of Prayer No. (c) only

Authorities

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Legislation

  • Civil Procedure RulesOrder 21 rule 1
Jurisdiction invoked
Articles 40 and 42 of the Constitution of Kenya, 2010

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, "Francis Mugarami Kamau & 6 others v Sycamore Pine Limited & 2 others; National Environment Management Authority & another (Interested Parties) [2021] KEELC 2724 (KLR)", Case Analysis (2021). Petition dated 18th May 2021 (court file number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2724/eng@2021-06-14

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