Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedELC Case No. 474 of 2010· [2021] KEELC 3408 (KLR)

Samuel Musau & 33 others v Andrew Makau & 10 others [2021] KEELC 3408 (KLR)

Environment and Land Court
28 January 2021
EOE. O. Obaga
1,399 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

A Kenyan court dismissed church members' challenge to completed construction because they offered no evidence, showing courts demand proof, not just allegations.

What this practically means

#

Executive summary

#
Thirty-four members of the Nairobi Central Corps Salvation Army Church sued fellow church members and Funan Contruction Company Limited over the construction of stalls and offices along the church's perimeter fence on LR No. 209/1951, Nairobi. The Plaintiffs alleged the project proceeded without notice to or consultation of the membership, without NEMA and City Council approvals, without competitive procurement, and infringed their constitutional right to a clean and healthy environment, besides obstructing the church exit, reducing parking and playground space, and housing businesses (including alcohol outlets) inconsistent with church doctrine. Cases against the 1st to 9th Defendants were withdrawn, leaving the 10th and 11th Defendants, who were served but neither attended nor filed submissions. The court framed five issues: the contractor's authority, the existence of requisite approvals, infringement of environmental rights, entitlement to reliefs, and costs. Relying on the documentary bundle filed by the 11th Defendant, the court found the contractor was authorized, competitively selected as lowest bidder, and had obtained both the Nairobi City Council approval and a NEMA-approved EIA Study Report. No evidence established infringement of the right to a clean and healthy environment or of freedom of worship; the dispute was characterized as rivalry between church members, and the demolished structures' approvals had been reinstated after the council was sued. Because construction had continued to completion despite an interim injunction (prompting contempt proceedings against the 11th Defendant's directors), a permanent injunction would be futile. The suit was dismissed with no order as to costs.

Key legal issues

#
01

Authority of the 11th Defendant to construct the stalls and offices

Holding

The 11th Defendant was duly authorized; it was selected from three bidders as the lowest bidder

Reasoning

Although the 11th Defendant did not testify, it filed a bundle of documents showing it was authorized to carry out construction and was competitively selected as the lowest bidder among three bidders, defeating the fraud allegations.

02

Whether requisite approvals were obtained

Holding

The project was approved by the Nairobi City Council and the EIA Study Report was approved by NEMA

Reasoning

The documentary evidence demonstrated that both the Physical Planning approval from the City Council and the Environmental Impact Assessment Study Report from NEMA were obtained, contradicting the Plaintiffs' particulars of fraud.

p. 3
03

Infringement of the right to a clean and healthy environment

Holding

No infringement proved

Reasoning

The Plaintiffs alleged noise and dust, clogged drainage and interference with air and light, but led no evidence on construction during church services or on any adverse interference; the claims were bare allegations.

p. 3
04

Entitlement to permanent injunction

Holding

Injunction refused as the construction was already complete

Reasoning

At the time of suit construction had advanced and stalls were leased; despite an interim injunction construction continued to completion, and the Defendants' directors faced contempt proceedings. Granting an injunction now would act in vain.

p. 3

Legal principles established

#
  • A party alleging infringement of the constitutional right to a clean and healthy environment must adduce evidence of the violation
  • A permanent injunction will not issue where the construction complained of has already been completed, as such an order would be futile

Court orders

#
  1. 1.The suit is dismissed
  2. 2.No order as to costs
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (as the court seized of the environmental claim); no specific provision invoked in the judgment.

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Samuel Musau & 33 others v Andrew Makau & 10 others [2021] KEELC 3408 (KLR)", Case Analysis (2021). ELC Case No. 474 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3408/eng@2021-01-28

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