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ELCAllowedNot stated in the judgment (Environment and Land Court at Mombasa)· [2021] KEELC 3752 (KLR)

Sosplashed Limited & another v Pwani Maoni Limited & 3 others [2021] KEELC 3752 (KLR)

Environment and Land Court
23 March 2021
MSMUNYAO SILA
2,107 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court halted a Diani Beach construction because the developer held no licences in its own name.

What this practically means

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Executive summary

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The plaintiffs sued over a high-rise apartment development by the 1st defendant on plots Kwale/Diani Beach/800 and 801, abutting the 1st plaintiff's parcel, with the 2nd defendant as contractor. They pleaded that the development lacked planning approvals and an EIA licence, that approvals had been fraudulently obtained in the names of previous owners Ravji Karsan Hirani and Kalpana Ravji Karsan, and sought declarations, a permanent injunction, demolition, cancellation of licences, special damages of about KShs. 14.6 million and general damages. Before trial, the plaintiffs applied for an interlocutory injunction to halt construction. The 1st and 2nd defendants opposed through replying affidavits sworn by Jane Mueni Musyoka, who claimed to be a director. The plaintiffs produced a CR12 showing the true directors to be Adrinus Maria Verhoef and Dorcas Waithira Kiiru, and an affidavit from the previous owners denying any consent or on-going project. The court found the deponent and the alleged directors to be strangers to the company, noted that no development or EIA licence was displayed in the 1st defendant's name, and held that sections 57(1) and 58(1) prohibit development without such licences. A prima facie case with probability of success, probable irreparable loss, and balance of convenience favouring suspension were all established. The court ordered an immediate stop to further construction on the two plots until further orders or disposal of the suit, authorised NEMA, the County Government of Kwale and the OCS Diani Police Station to enforce compliance, and awarded the plaintiffs costs of the application against all defendants.

Key legal issues

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01

Prima facie case for injunction based on absence of licences

Holding

A prima facie case was established that the 1st and 2nd defendants may be undertaking an illegal development for want of development and EIA licences in their own name.

Reasoning

The licences displayed by the 1st defendant were issued to previous owners who denied applying for them or consenting to their use. The 1st defendant displayed no licence in its own name. Under section 57(1) of the Physical Planning and Land Use Act and section 58(1) of EMCA, no development or EIA-liable project may proceed without the requisite approvals. This established a prima facie case with probability of success.

p. 2
02

Authority of deponent to represent the company

Holding

The deponent Jane Mueni Musyoka was a stranger to the 1st defendant, as the CR12 showed the actual directors to be Adrinus Maria Verhoef and Dorcas Waithira Kiiru, who gave no authority.

Reasoning

The CR12, undisputed, showed that neither Jane Mueni Musyoka nor Festus Kalii Musyoka were directors of the 1st defendant. No affidavit from the actual directors authorised Ms Musyoka to swear affidavits or represent the company, undermining the 1st and 2nd defendants' response to the application.

p. 2
03

Irreparable loss and balance of convenience

Holding

Given the lack of clarity as to what is being developed, irreparable loss is probable and the balance of convenience favours suspending the development.

Reasoning

Without valid development permission it is unclear what the defendants are developing; that uncertainty makes probable loss that damages cannot compensate. The balance of convenience tilts towards stopping the unlicensed development, and the defendants took on the risk of continuing without a licence.

p. 3

Legal principles established

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  • A person shall not carry out development within a county without development permission granted by the respective county executive committee member.
  • No person may benefit from an illegal act; construction undertaken without licences cannot be allowed to continue on grounds of cost already incurred.

Court orders

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  1. 1.Order that the 1st and 2nd defendants and/or their servants and agents forthwith stop any further construction or development on Kwale/Diani Beach Block/800 and Kwale/Diani Beach Block/801 until further orders of the court or until disposal of the suit
  2. 2.The 3rd and 4th defendants and the OCS Diani Police Station authorised to ensure compliance with the order
  3. 3.Plaintiffs awarded costs of the application as against all defendants

Authorities

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Legislation

  • Physical Planning and Land Use ActSection 57(1), Section 59(4)
  • Physical Planning Act, 2019Various sections referred to by counsel
  • Environmental Management and Coordination Act (EMCA)Section 58(1)
Jurisdiction invoked
Inherent jurisdiction of the Environment and Land Court over land use and environmental disputes (Physical Planning Act, 2019 and EMCA invoked)

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, "Sosplashed Limited & another v Pwani Maoni Limited & 3 others [2021] KEELC 3752 (KLR)", Case Analysis (2021). Not stated in the judgment (Environment and Land Court at Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3752/eng@2021-03-23

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