Maina & another v Nairobi City County & another (Environment & Land Case E167 of 2021) [2022] KEELC 2294 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed it can hear disputes over public toilet management contracts and protected the operators with a temporary injunction.
What this practically means
#Executive summary
#Key legal issues
#Whether the ELC has jurisdiction over a dispute concerning a public toilet management contract
The preliminary objection lacked merit; the toilet management contracts relate to the use of land as contemplated by Section 13 of the ELC Act, so the ELC has jurisdiction
Relying on the Court of Appeal's explanation in Co-operative Bank of Kenya Ltd v Patrick Kangethe Njuguna, the court examined the context of the toilet management contracts. The contracts permitted the Applicants to use the suit land and substantially concerned use of land, not mere commercial transactions. The predominant purpose was use of land, bringing the dispute within the ELC's jurisdiction under Section 13 of the ELC Act and Article 162(2) of the Constitution.
Whether the Applicants met the threshold for a temporary injunction
The Applicants established a prima facie case and demonstrated loss, warranting a temporary injunction
Applying Giella v Cassman Brown as reiterated in Nguruman Limited v Jan Bonde Nielsen, the court found the Applicants had a valid management contract dated 5th October 2018 with a 4-year term, constituting a prima facie case. They had heavily invested in the management contract and demonstrated continued harassment. The 1st Defendant's claim that it had transferred functions to the 2nd Defendant did not defeat the application, guided by Ecotact Limited v Nairobi City County.
Whether the expiry of the contract affects the continuation of the suit
The court found the 4-year term of the contract still valid, rejecting the 1st Defendant's submission that the subject matter no longer existed
The 1st Defendant relied on Julius K. Atunga v Naumy Jebyegon Kemboi to argue that since the 3-year contract expired on 4th October 2021 and was not renewed, the matter could not proceed. The court instead found the contract term to be 4 years and still valid, effectively rejecting the contention that the suit was rendered otiose by expiry of the contract.
Legal principles established
#- Toilet management contracts permitting occupation and use of land substantially concern the use of land and fall within the jurisdiction of the Environment and Land Court under Section 13 of the ELC Act
- Where a preliminary objection fails, the court proceeds to consider the interlocutory application on its merits using the Giella v Cassman Brown principles
Court orders
#- 1.A temporary injunction restraining the Defendants/Respondents, their officers, agents, or anybody claiming any right or interest through them from closing, entering, occupying, dealing, developing, transferring, leasing, granting any other person the right to run and/or occupy or in any way interfering with the Plaintiffs/Applicants management of OTC Jack & Jill Toilets pending the hearing and determination of the suit
- 2.The OCS Kamukunji Police Station to ensure compliance of the orders
- 3.Costs of the application to abide the outcome of the main suit
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Maina & another v Nairobi City County & another (Environment & Land Case E167 of 2021) [2022] KEELC 2294 (KLR)", Case Analysis (2022). Not stated in the judgment (Notice of Motion dated 19th May 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2294/eng@2022-05-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.