Mavoko Water & Sewerage Company Limited v Safaricom Staff Pension Scheme Registered Trustees & another [2022] KEELC 422 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff established a prima facie case for interlocutory injunction
No prima facie case established; the alleged injuries were speculative given the depth of the sewer line and the KENHA and County approvals obtained by the 1st Defendant.
Applying Giella v Cassman Brown and the Mrao definition of a prima facie case, the court noted the Plaintiff did not deny its sewer line runs under Quarry 39 Road with traffic, did not dispute the 4.5 metre depth of the line, and produced no evidence challenging the KENHA and Machakos County Government approvals or showing how the box culvert interferes with the sewer line. Its claims of harm rested on engineering opinion and speculation rather than proof of a threatened violation of a clear right.
Whether the ex parte orders issued on 14th July, 2021 should be set aside
Set aside, because having failed the first Giella limb the Plaintiff could not sustain the interim orders.
Associating itself with Nguruman, the court held that where the first limb of the injunction test fails, the remaining limbs need not be considered. Since the Plaintiff failed to demonstrate a prima facie case, the ex parte injunctions in place since 14th July 2021 could not stand and were set aside.
Legal principles established
#- Where a party fails to prove the first limb of the Giella test for injunction, the court need not and will not consider the remaining limbs.
Court orders
#- 1.The ex parte orders of injunction issued on 14th July, 2021 are set aside.
- 2.The Notice of Motion dated 14th July, 2021 is disallowed as unmerited.
- 3.The Notice of Motion dated 19th October, 2021 is allowed as merited.
- 4.The parties to organize a site visit with the Deputy Registrar of the court.
- 5.Costs of the two applications to be in the cause.
- Jurisdiction invoked
- Order 40 Rules 1 & 4 and Order 51 Rules 1 & 15 of the Civil Procedure Rules, 2010; Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act; Sections 18 and 19 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mavoko Water & Sewerage Company Limited v Safaricom Staff Pension Scheme Registered Trustees & another [2022] KEELC 422 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/422/eng@2022-04-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.