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ELCDismissed· [2021] KEELC 4274 (KLR)

Patrick Musimba Limited v China Railways No. 10 Engineering Group Co. Ltd & another [2021] KEELC 4274 (KLR)

Environment and Land Court
11 February 2021
3,394 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 Karen landowner lost its bid to stop a neighbour's construction because it skipped the statutory dispute process and delayed until building was complete.

What this practically means

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Executive summary

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The plaintiff, registered proprietor of L.R No. 194/33 on Acacia Drive, Karen, sued the 1st defendant (registered proprietor of the adjacent suit property, L.R No. 194/32) and the 2nd defendant, contending that the 1st defendant was constructing a commercial/administrative office complex contrary to the residential zoning under the Physical Development Plan for Zone 12 of the Nairobi City Development Ordinances. Together with the suit filed on 11th June 2019, the plaintiff sought interim relief by Notice of Motion dated 6th June 2019: a temporary injunction restraining construction, an order compelling production of approved plans and documents lodged with the 2nd defendant, and costs. The 1st defendant opposed, arguing the suit was defective (verifying affidavit commissioned by an alleged partner of the plaintiff's advocates), premature for failure to exhaust remedies under the Physical Planning Act, 1996, and that construction was complete. The 2nd defendant raised a preliminary objection on limitation and the Evidence Act. Justice S. Okong'o applied the Giella v Cassman Brown principles as refined in Nguruman and Mrao, and the mandatory injunction principles in Locabail and Shepherd Homes. He held the plaintiff failed to establish a prima facie case, had not exhausted the statutory dispute mechanism under the Physical Planning Act, could not stop the 2nd defendant from exercising its statutory power, and that the injunction was futile because construction was complete and uncontroverted. The production order was held to be a mandatory injunction with no basis in the plaint and a matter for discovery. The application was dismissed with costs to the defendants on 11th February 2021.

Key legal issues

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01

Exhaustion of statutory dispute-resolution mechanisms

Holding

The plaintiff failed to exhaust the inbuilt dispute-resolution mechanism under the Physical Planning Act, 1996 before coming to court, undermining its prima facie case

Reasoning

The court held the complaint related to a development approval under the Physical Planning Act, which contained an inbuilt mechanism for resolving disputes. Citing settled authority, it held that where a statute prescribes a procedure for redress, that procedure must be strictly followed before a party resorts to a court of law. The plaintiff had not shown it exhausted that machinery.

p. 3
02

Prima facie case for temporary injunction

Holding

The plaintiff did not demonstrate a prima facie case with a probability of success under the Giella v Cassman Brown principles

Reasoning

Applying Giella v Cassman Brown as refined in Nguruman and Mrao, the court found the plaintiff failed to show a clear and unmistakable right threatened with violation. It was unclear whether the change of use had been granted or was pending, and the court could not speculate on the outcome of the 2nd defendant's statutory consideration of the application.

p. 3
03

Futility of injunction over completed construction

Holding

Since the 1st defendant's construction was complete and uncontroverted, an injunction to restrain construction would be granted in vain

Reasoning

The 1st defendant averred in its replying and supplementary affidavits that construction works were completed. That averment was not controverted by the plaintiff. The court held there was nothing left to restrain, making the prohibitory injunction sought futile.

p. 4
04

Order for production of documents at interlocutory stage

Holding

The order sought was in the nature of a mandatory injunction, had no basis in the plaint, and was properly a matter for discovery

Reasoning

The court agreed with the 1st defendant that the prayer for production of approved plans and lodged documents was in the nature of a mandatory injunction which must have a basis in the plaint. No such order was sought in the plaint, and production of documents can be dealt with during discovery, so the court need not grant it at interlocutory stage.

05

Validity of the verifying/commissioning affidavit

Holding

The validity of the affidavit commissioned by a person sharing the plaintiff advocates' address was in doubt, to be determined at trial

Reasoning

The affidavit was commissioned by Andrew Oluoch Oduor using the same postal and e-mail address as the firm on record for the plaintiff, despite grounds of opposition alleging he was a partner in that firm. The court found no reasonable explanation for continued use of the firm's addresses and held whether he had resigned could only be determined at trial.

p. 4

Legal principles established

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  • Where there is a clear procedure for redress of a grievance prescribed by the Constitution or an Act of Parliament, that procedure must be strictly followed before resorting to court
  • A mandatory injunction at interlocutory stage requires special circumstances and a unusually strong and clear case

Court orders

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  1. 1.The Notice of Motion application dated 6th June, 2019 is dismissed
  2. 2.Costs of the application to the defendants

Authorities

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Legislation

  • Physical Planning Actgeneral (now repealed)
  • Evidence ActChapter 80 Laws of Kenya
  • Access to Information ActSection 11
  • Local Government Actgeneral

Cases cited (8)

  • Giella v Cassman Brown & Co. Ltd.
    [1973] E.A 358
  • Nguruman Limited v Jan Bonde Nielsen & 2 Others
    [2014] eKLR
  • Mrao Limited v First American Bank of Kenya Limited & 2 Others
    [2003] KLR 125
  • Locabail International Finance Limited v Agro-Export
    (1988) 1 All ER 901
  • Shepherd Homes Ltd. v Shandahu
    [1971] 1 Ch.304
  • Narok County Council v Trans Mara County Council and Another
    CA No. 25 of 2000
  • Secretary, County Public Service Board & another v Hulbhai Gedi Abdille
    CA No. 202 of 2015 [2017] eKLR
  • Speaker of the National Assembly v James Njenga Karume
    Civil Application No Nai 92 of 1992 (Nai. 40/92 Ur)
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over the suit property dispute; no specific constitutional provision invoked in the ruling

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, "Patrick Musimba Limited v China Railways No. 10 Engineering Group Co. Ltd & another [2021] KEELC 4274 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4274/eng@2021-02-11

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