Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in the judgment· [2022] KEELC 1900 (KLR)

Galot Holdings Limited v Adsite Limited & another [2022] KEELC 1900 (KLR)

Environment and Land Court
26 January 2022
1,750 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

A Kenyan court dismissed a billboard dispute because ordinary civil conflicts cannot be dressed up as constitutional rights cases, and an unopposed application must still be proven.

What this practically means

#

Executive summary

#
The Petitioner, owner of L.R No. 24092 on Mombasa Road, Nairobi, where it operates a textile plant, moved the court by Notice of Motion seeking a prohibitory injunction restraining the 1st Respondent from erecting a billboard blocking the 18-metre access road between L.R No. 24092 and L.R No. 21919, and a mandatory injunction compelling removal of a billboard erected on 16th January 2016. The Petitioner framed the claim as a violation of rights under Articles 22, 27, 28, 40, 42 and 70 of the Constitution. The Respondents did not respond to the petition or the application. The court set out the principles governing conservatory orders from Kevin K. Mwiti, Kenya Association of Manufacturers, Gatirau Peter Munya (Supreme Court), Giella v Cassman Brown and the Court of Appeal's guidance in Joseph Kaloki on mandatory injunctions. Although the application was unopposed, the court held the Petitioner still had to satisfy the conditions for conservatory relief. It found no prima facie case of threatened or actual constitutional violation: the suit property has direct access to Mombasa Road, the access road was not in vehicular use, and the billboard had not obstructed traffic. The court observed the dispute was a straightforward civil dispute over an alleged obstruction of a public road and should not have been brought as a constitutional petition. The prohibitory injunction was overtaken by events since the billboard was already erected, and no exceptional circumstances justified a mandatory injunction. The application was dismissed with no order as to costs.

Key legal issues

#
01

Whether a prima facie case of threatened or actual constitutional violation was established

Holding

No prima facie case was established; the dispute was a civil dispute over obstruction of a public road and the suit property has direct access to Mombasa Road

Reasoning

The court reviewed the maps and photographs produced by the Petitioner and found that the suit property enjoys direct access to Mombasa Road, so the disputed access road is unnecessary. The photographs also showed the access road was unused by vehicles and that the billboard had not obstructed traffic. The complaint was characterised as an ordinary civil dispute, not a constitutional grievance, and the rights alleged under Articles 27, 40, 42, 47, 50 and 70 were found neither violated nor threatened.

p. 2
02

Whether the prohibitory and mandatory injunctions sought could issue

Holding

Neither could issue: the prohibitory relief was overtaken by events and the mandatory relief lacked exceptional circumstances

Reasoning

The court noted that a prohibitory injunction cannot restrain an act already completed, since the billboard was already erected. As for the mandatory injunction, it reiterated the principle from the Court of Appeal authorities that mandatory injunctions at the interlocutory stage are granted only where the applicant establishes special or exceptional circumstances, which the Petitioner failed to demonstrate on the material before the court.

p. 3

Legal principles established

#
  • A party seeking conservatory orders must satisfy the conditions for their grant even where the application is unopposed
  • An interlocutory mandatory injunction is granted only in exceptional circumstances
  • Straightforward civil disputes should not be brought by way of constitutional petition

Court orders

#
  1. 1.The Notice of Motion application dated 26th February 2015 (sic) fails and is dismissed
  2. 2.No order as to costs

Authorities

#

Legislation

  • Constitution of KenyaArticles 22, 23, 27, 28, 40, 42, 47, 50, 70, 159
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Not specified

Cases cited (7)

  • Kevin K. Mwiti & Others v Kenya School of Law & Others
    [2015] eKLR
  • Kenya Association of Manufacturers & 2 others v Cabinet Secretary Ministry of Environment and Natural Resources & 3 others
    [2017] eKLR
  • Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others
    [2014] eKLR
  • Giella v Cassman Brown & Co. Ltd.
    [1973] E.A 358
  • Joseph Kaloki t/a Royal Family Assembly v Nancy Atieno Ouma
    [2020] eKLR
  • Kenya Breweries Limited & another vs. Washington O. Okeyo
    [2002] eKLR
  • Shariff Abdi Hassan vs. Nadhif Jama Adan
    [2006] eKLR
Jurisdiction invoked
Articles 22, 23 and 159 of the Constitution and the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Galot Holdings Limited v Adsite Limited & another [2022] KEELC 1900 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1900/eng@2022-01-26

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