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ELCDismissedNot stated in the extract· [2021] KEELC 4001 (KLR)

Zenith Gardens Management Limited & Anthony Praxedes D’costa v Nairobi Metropolitan Services & Nairobi City County Government (Environment & Land Case E056 of 2021) (Environment and Land) [2021] KEELC 4001 (KLR)

Environment and Land Court
8 March 2021
BEB M Eboso
747 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi court refused to suspend a vacation order for a structurally flawed apartment block, prioritizing public safety over the residents' request for more time.

What this practically means

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Executive summary

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The 1st defendant issued an enforcement notice on 10/2/2021 requiring immediate vacation of Block C of Zenith Gardens on LR Number 1870/111/549, Brookside Gardens Drive, Westlands, Nairobi, citing structural failures. Together with the plaint, the plaintiffs filed a notice of motion dated 16/2/2021 seeking a conservatory order staying the enforcement notice pending trial. Counsel for the applicants, Mr Ogari, argued the applicants merely needed time to engage a structural engineer and comply, noting the 1st defendant is a management company with 24 shareholders. Mr Allan Kamau, for the 1st defendant, opposed, relying on a National Construction Authority report and photographs showing cracks and sinking, asserting the building endangered the public. The court framed a single issue: whether the applicants had satisfied the criteria for conservatory orders. Applying the Supreme Court's test in Peter Gatirau Munya vs Dickson Mwenda Kithinji, the court noted conservatory orders turn on inherent merit, public interest and constitutional values rather than the private-law injunction tests. Observing the dispute should have gone to the Physical and Land Use Planning Act liaison committee, but that body was not operationalized, the court exercised original jurisdiction under Section 13 of the Environment and Land Court Act. Because the NCA report showed structural flaws and the applicants produced no structural engineer's report demonstrating safety, the court deferred to the NCA report to avert loss of lives and declined the application, with costs in the cause.

Key legal issues

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01

Whether the criteria for grant of a conservatory order were satisfied

Holding

They were not; the court declined to grant a stay of the enforcement notice because the NCA report showed structural flaws and no structural engineer's report demonstrated safety

Reasoning

Applying the Supreme Court's Munya criteria, the court weighed public interest and constitutional values. The NCA report found structural flaws and recommended the building remain vacant until remedial measures were enacted. The applicants offered no contrary technical report showing the block was safe for occupation. Granting a conservatory order risked loss of lives, so public interest weighed against relief.

p. 2
02

Whether the court could exercise original jurisdiction despite the primary dispute framework in the Physical and Land Use Planning Act, 2019

Holding

Yes, because the relevant physical and land use liaison committee had not been constituted or operationalized

Reasoning

The dispute ought to have been adjudicated within the PLUPA framework, but the parties agreed the liaison committee was not fully constituted or operationalized. This failure left no primary forum, justifying the ELC's exercise of original jurisdiction under Section 13 of the Environment and Land Court Act.

p. 1

Legal principles established

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  • Conservatory orders are granted on the inherent merit of a case bearing in mind public interest and constitutional values, not on the interlocutory injunction tests of irreparable harm and prima facie case
  • Where a technical authority's report indicates danger to the public, the court will defer to it absent a contrary technical report

Court orders

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  1. 1.Notice of motion dated 16/2/2021 declined
  2. 2.Costs in the cause

Authorities

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Legislation

  • Physical and Land Use Planning Act2019 (primary dispute adjudication framework)
  • Environment and Land Court ActSection 13

Cases cited (1)

  • Peter Gatirau Munya vs Dickson Mwenda Kithinji & 2 others
Jurisdiction invoked
Section 13 of the Environment and Land Court Act (original jurisdiction), the Physical and Land Use Planning Act, 2019 liaison committee not being operationalized

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, "Zenith Gardens Management Limited & Anthony Praxedes D’costa v Nairobi Metropolitan Services & Nairobi City County Government (Environment & Land Case E056 of 2021)  (Environment and Land) [2021] KEELC 4001 (KLR)", Case Analysis (2021). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4001/eng@2021-03-08

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