Maanzoni Owners Association (Suing through his officials Isaac Kimilu-Chairman, Robert Mugo Wa Karanja-Treasurer & Susan Wanjiku Ngigi – Secretary) v Pamela Tutui & 2 others [2021] KEELC 4538 (KLR)

The court applied the Giella v Cassman Brown test as explained in Mrao v First American Bank. The Plaintiff alleged a 1994 zoning as low-density residential and the existence of a wildlife corridor, but produced no evidence of a designated zone or gazetted corridor. The title permitted residential use, and the 1st Defendant held a 2019 approval for a single dwelling. Without proof of an apparent infringement of a right, the injunction could not issue.

Orders of injunction would bind all co-owners, some of whom had pending change-of-user applications. Since the unjoined proprietors would be directly affected without an opportunity to be heard, the court held the anomaly fatal and declined to grant injunctive relief against the 1st Defendant alone.

Relying on Speaker of National Assembly v Karume, Muthinja Kabiru and Mui Coal Basin, the court held that where a statute provides a dispute resolution mechanism, it must be exhausted first. The change-of-user application was still pending before the 2nd Defendant, and any aggrieved party may appeal to the Liaison Committee under section 78 within sixty days.