Josiah Job Irungu Ngechu & another v Michael Kahare Waichinga & 4 others [ [2021] KEELC 3650 (KLR)
The bottom line
#Kenya's Environment and Land Court stopped construction of Ruiru apartments pending appeal, but refused to jail the builders for contempt because the proof fell short.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicants established a prima facie case for temporary injunction
The judgment and decree of 31st August 2020 establishing that the apartments were erected illegally for want of approvals was prima facie proof the substratum of the suit property would be interfered with; the Applicants established a prima facie case with probability of success.
Applying Giella v Cassman Brown and the Mrao definition of a prima facie case, the court found the lower court's judgment - that the multi-dwelling apartments were erected illegally for want of approvals and that approvals were null and void - constituted prima facie proof that the substratum of the suit property would be interfered with pending trial.
Irreparable harm and balance of convenience
If the Respondents were allowed to proceed and the Applicants succeeded at trial, the loss would be irreparable and not adequately compensable in damages; the balance of convenience favoured maintaining the status quo.
The court relied on Olympic Sports House Ltd that a party cannot be condemned to take damages in lieu of a crystallised right protectable by injunction, and on Wambui Ougo that on serious conflicts of fact the status quo should be maintained until trial, finding the status quo meant no construction until the suit was determined.
Whether stay of execution pending appeal should issue
There was no inordinate delay (memorandum filed 15th September 2020, application 16th September 2020, judgment 31st August 2020) and substantial loss was shown; but the Applicants were silent on security.
Applying Order 42 Rule 6(2) and the Halal & Thornton criteria (substantial loss, no unreasonable delay, security), the court found no inordinate delay and substantial loss via violation of the right to a clean environment, but noted the Applicants were silent on the issue of security of costs.
Whether the 1st and 2nd Respondents were in contempt of the decree of 31st August 2020
The material was insufficient to prove contempt, which is quasi-criminal and requires proof beyond reasonable doubt of knowledge and intention to disobey.
Relying on Mary Wamaitha Makumi v Phylis Nduta Ngugi, the court held contempt is akin to a criminal offence carrying penal consequences, so the standard of proof is beyond reasonable doubt and the contemnor must have knowledge and intention to disobey; the facts before the court did not meet that threshold, so the contempt prayer failed.
Legal principles established
#- To justify a temporary injunction there must be evidence of immediate danger to property or sale or other disposition
- A court on an interlocutory application makes no conclusive findings of fact or law
- Where there are serious conflicts of facts, the trial court should maintain the status quo until the dispute is decided at trial
- Contempt of court must be proved beyond reasonable doubt, with knowledge and intention to disobey the order
Court orders
#- 1.Temporary injunction restraining the 1st and 2nd Respondents from continuing construction of the multi-dwelling apartment on L.R NO. RUIRU WEST BLOCK 3/2542 (prayer 1, inter-parties)
- 2.Order of temporary injunction pending the hearing and determination of the appeal (prayer 3)
- 3.Order restraining the 3rd, 4th and 5th Respondents from issuing approvals, permits and licences for the development (prayer 4)
- 4.Prayer 5 allowed
- 5.Costs of the application to the Applicants (prayer 7)
- 6.Appellants directed to file and serve the Record of Appeal within 30 days and cause the matter to be listed before the Judge for directions under Section 79B of the Civil Procedure Act
- On appeal from
- Ruiru Senior Principal Magistrate's Court
- RUIRU SPMC ELC NO 166 OF 2019
- Jurisdiction invoked
- Sections 13, 16 and 19 of the Environment and Land Court Act; Order 40, Order 42 Rule 6 and Order 51 of the Civil Procedure Rules; Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act; Articles 19, 22, 23, 31, 42, 159(1) and 165 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Josiah Job Irungu Ngechu & another v Michael Kahare Waichinga & 4 others [ [2021] KEELC 3650 (KLR)", Case Analysis (2021). Notice of Motion dated 16th September 2020 (Ruiru ELC Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3650/eng@2021-04-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.