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ELCDismissedNot stated in judgment (Notice of Motion dated 24th September 2020)· [2022] KEELC 1600 (KLR)

Jesus is Alive Ministries Registered Trustees & 3 others v Kenya Railways Corportation & 3 others [2022] KEELC 1600 (KLR)

Environment and Land Court
10 February 2022
2,534 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Nairobi by L. Komingoi J on a Notice of Motion dated 24th September 2020 brought by three Plaintiffs under Order 40 rules 1, 2, 3 and 4 of the Civil Procedure Rules. The Plaintiffs, owners of LR Nos 209/16778, 209/1254, 209/1253 and 209/1077, sought temporary injunctions restraining the Defendants from obstructing their access to Railway Lane, Exchange Lane, Weruga Lane and Haile Sellassie Avenue, and mandatory injunctions compelling the 1st Defendant to demolish a wall and remove gates or barriers said to block access to Railway Lane. The 1st Defendant raised a preliminary objection under Section 87 of the Kenya Railways Corporation Act (no notice of intention to sue, and suit filed out of the statutory limitation), while the 2nd Defendant confirmed the works were sanctioned by national and county development plans. The court framed four issues. First, it dismissed the preliminary objection, following Joseph Nyamamba, Kenya Bus Services and Catherine Njeri Majani that the failure to issue the 30 days' notice under Section 87(a) is not fatal in light of Article 48's guarantee of access to justice. Second, applying Giella v Cassman Brown and Mrao Ltd, it found no prima facie case, noting the Plaintiffs' own material showed the wall was on the 1st Defendant's property, and that the balance of convenience favoured the 1st Defendant. Third, applying Locabail via Kenya Breweries v Okeyo, it refused the mandatory injunction for want of special circumstances. The application was dismissed with costs to abide the outcome of the main suit.

Key legal issues

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01

Whether the preliminary objection under Section 87 of the Kenya Railways Corporation Act was merited

Holding

Dismissed - failure to give notice was not fatal to the suit

Reasoning

The court relied on Court of Appeal authority in Joseph Nyamamba and decisions of Majanja J and Angote J holding that Section 87(a)'s notice requirement, read against Article 48's guarantee of access to justice, does not defeat a suit where notice was not issued. Following those authorities, the omission was not fatal and the preliminary objection lacked merit.

p. 4
02

Whether the Plaintiffs established a prima facie case for a temporary injunction

Holding

No prima facie case established

Reasoning

Applying Giella v Cassman Brown and Mrao Ltd, the court found the Plaintiffs' own material showed the wall was being constructed on the 1st Defendant's property, not on a public road, so no legal or equitable right requiring protection was demonstrated, and the balance of convenience favoured the 1st Defendant as property owner.

p. 4
03

Whether a mandatory injunction should issue to compel demolition of the wall

Holding

Refused - no special circumstances

Reasoning

Relying on Kenya Breweries Ltd v Washington O. Okeyo quoting Locabail International Finance Ltd v Agroexport, the court held that a mandatory injunction on an interlocutory application requires special circumstances and a higher degree of assurance, none of which the Plaintiffs demonstrated.

p. 4

Legal principles established

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  • Failure to issue the 30 days' notice under Section 87(a) of the Kenya Railways Corporation Act is not fatal to a suit, given Article 48 access to justice
  • A mandatory injunction will not issue on an interlocutory application absent special circumstances and a clear case

Court orders

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  1. 1.The preliminary objection dated 24th November 2020 is dismissed
  2. 2.The Notice of Motion dated 24th September 2020 is dismissed
  3. 3.Costs to abide the outcome of the main suit
Jurisdiction invoked
Order 40 rules 1, 2, 3 and 4 of the Civil Procedure Rules

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, "Jesus is Alive Ministries Registered Trustees & 3 others v Kenya Railways Corportation & 3 others [2022] KEELC 1600 (KLR)", Case Analysis (2022). Not stated in judgment (Notice of Motion dated 24th September 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1600/eng@2022-02-10

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