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ELCDismissedNot stated in the extract (Constitutional Petition, Mombasa)· [2021] KEELC 3731 (KLR)

Justus Chai Mbaru & 12 others v County Government of Mombasa; National Land Commission & 2 others (Interested Parties) [2021] KEELC 3731 (KLR)

Environment and Land Court of Kenya
23 March 2021
3,552 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to stop Mombasa's Buxton Estate demolition because tenants who accepted Kshs 240,000 compensation could not claim they would suffer substantial loss.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Mombasa (Munyao Sila, J) on an application dated 4 March 2021 seeking an injunction and maintenance of status quo over Buxton Estate pending an intended appeal to the Court of Appeal against the judgment of 3 March 2021 dismissing the petitioners' constitutional petition challenging the County Government of Mombasa's Urban Renewal and Regeneration Programme. The project involved demolition of about 520 old housing units and construction of about 1,500 new units for sale, with tenants to receive an ex gratia payment of Kshs 240,000/= for alternative accommodation and a deposit of Kshs 60,000/= if they exercised a first right of purchase. The applicants argued there was an imminent threat of eviction that would render the appeal nugatory. The respondent and interested parties countered that the relief had been overtaken by events: 488 of roughly 547 tenants had voluntarily executed Tenancy Termination Agreements and collected payments, including several of the petitioners, and demolition had commenced. The court held that although the Mutunga Rules govern constitutional petitions, the mis-citation of Article 159 and Civil Procedure Act provisions was not fatal, and applied the Order 42 Rule 6(2) test of no delay, substantial loss and security. Delay was absent, but substantial loss was not demonstrated, the court finding it antithetical that applicants who had collected compensation and signed purchase agreements should seek to halt the project. The application was dismissed with costs on 23 March 2021.

Key legal issues

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01

Applicable procedural framework for applications in constitutional petitions

Holding

The Mutunga Rules strictly apply to constitutional petitions, but Civil Procedure provisions may be borrowed to fill lacunae, and misidentification of the enabling provision will not defeat a meritorious application

Reasoning

The court observed that although the petition is governed by the Mutunga Rules, Civil Procedure Rules are often applied to petitions where the Mutunga Rules have lacunae. The applicant's citation of Article 159 and Sections 1A, 1B and 3A of the Civil Procedure Act instead of Rule 32 of the Mutunga Rules was therefore immaterial; the application was determined on its merits without prejudice to any party.

p. 3
02

Test for injunction/stay pending appeal

Holding

Applicant must demonstrate no unreasonable delay, substantial loss, and security; the court borrows Order 42 Rule 6(2) of the Civil Procedure Rules

Reasoning

The court held that the principles governing stay under Order 42 Rule 6(2) of the Civil Procedure Rules apply to applications for stay or injunction pending appeal in constitutional petitions. While delay was absent (application filed a day after judgment), the crucial requirement of substantial loss was not met, making consideration of security unnecessary.

p. 3
03

Whether substantial loss was demonstrated

Holding

No substantial loss was demonstrated; relocation plan with ex gratia payment of Kshs 240,000/= mitigated any hardship, and several petitioners had themselves accepted payment and signed purchase agreements

Reasoning

The court found it antithetical for applicants to seek to stay orders they were themselves executing, having collected ex gratia payments and signed for purchase of new flats. With about 90% of tenants voluntarily paid and relocated, the disruption of moving out had already been mitigated by compensation intended to secure alternative accommodation during the project.

p. 4

Legal principles established

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  • To succeed in an application for stay or injunction pending appeal, the applicant must show that the application was made without unreasonable delay, that substantial loss will result if the order is not granted, and that the applicant is ready to provide security for due performance of the decree.
  • Compensation granted to secure alternative accommodation negates substantial loss where relocation is being executed under an agreed plan.
  • Courts should not sacrifice substance over procedure, and procedural technicalities should not render an application incompetent absent prejudice.

Court orders

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  1. 1.The application dated 4 March 2021 seeking an injunction/status quo pending appeal is dismissed
  2. 2.Costs of the application are awarded to the respondents/interested parties

Authorities

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Legislation

  • Constitution of KenyaArticle 159; Article 10
  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 42 Rule 6(2)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules)Rule 3; Rule 32
  • Public Private Partnership ActNot specified
  • Public Procurement and Asset Disposal ActNot specified
  • Environmental Management and Coordination Act (EMCA)Not specified

Cases cited (1)

  • Mombasa High Court Petition No. 36 of 2016
Jurisdiction invoked
Article 159 of the Constitution, Sections 1A, 1B and 3A of the Civil Procedure Act (Cap 21) and the inherent jurisdiction of the Court, as invoked by the applicants

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, "Justus Chai Mbaru & 12 others v County Government of Mombasa; National Land Commission & 2 others (Interested Parties) [2021] KEELC 3731 (KLR)", Case Analysis (2021). Not stated in the extract (Constitutional Petition, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3731/eng@2021-03-23

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