Maria & 5 others v Kuria & 5 others (Environment & Land Case 46 of 2021) [2022] KEELC 2925 (KLR)
The bottom line
#Malindi's Environment and Land Court refused to stop a completed Safaricom phone mast because the applicants had no expert evidence the mast would harm them.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiffs met the threshold for a temporary injunction
They did not: the BTS construction was already finalized leaving nothing to restrain, and no prima facie case supported by evidence of irreparable injury was established
The court found the construction complete, so injunctive orders would be futile. The Plaintiffs' allegations of health risk from the mast's proximity lacked any survey report or expert evidence, the map produced not even showing the suit properties. They also failed to show injury not compensable by damages, and the balance of convenience tilted against the injunction.
Whether the alleged lack of public participation and EIA licensing prior to construction vitiated the process
The court did not decide the point finally; the 3rd Defendant confirmed a license was issued in accordance with the regulations and the Plaintiffs did not establish irreparable injury
The 3rd Defendant deponed that public consultation forms were completed by immediate neighbours before the EIA license issued, and approvals were obtained from the 4th and 6th Defendants. The 4th Defendant confirmed the project began without a license but was halted pending licensing. The court, without going into merits at the interlocutory stage, found no demonstrated injury uncompensable by damages.
Whether a permanent injunction can be granted at an interlocutory stage
The court treated the application as one for temporary injunction and declined to grant the permanent injunction sought, dismissing the application
The 3rd Defendant had argued that a permanent injunction cannot issue before the hearing of the main suit. The court framed the issues around temporary injunction principles and, finding no prima facie case nor irreparable injury, dismissed the application with costs and directed parties to take directions on the hearing of the main suit.
Legal principles established
#- Courts do not issue orders in vain; an injunction restrains threatened or ongoing breaches and is never meant to prevent what has already occurred
- A party seeking a temporary injunction must establish a prima facie case with a probability of success, irreparable loss/injury, and, if in doubt, balance of convenience
- No injunction should normally be granted where damages would be an adequate remedy
- A party alleging scientific or health-based injury must table evidence of the threat, violation or injury; he who alleges must prove
Court orders
#- 1.The application for injunction dated 13th May 2021 is dismissed with costs
- 2.Parties to take directions on the hearing of the main suit
- Jurisdiction invoked
- Environment and Land Court jurisdiction over environmental claims under Articles 42 and 70 of the Constitution; interlocutory relief sought under order 40 rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Maria & 5 others v Kuria & 5 others (Environment & Land Case 46 of 2021) [2022] KEELC 2925 (KLR)", Case Analysis (2022). Notice of Motion dated 13th May 2021 (interlocutory application in the main suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2925/eng@2022-06-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.