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ELCDismissedNot stated in the judgment as extracted· [2022] KEELC 2949 (KLR)

Kariuki & another v Nairobi City County & another (Environment & Land Case E170 of 2021) [2022] KEELC 2949 (KLR)

Environment and Land Court
12 May 2022
LKL. Komingoi
1,735 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

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A Kenyan court dismissed a request to protect a public toilet management deal because the contract had expired, leaving the operators with no legal right to defend.

What this practically means

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Executive summary

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The plaintiffs/applicants, operating through Friends of Muthurwa Self Help Group, moved the court by notice of motion dated May 18, 2021 seeking a temporary injunction restraining the defendants from interfering with their management of the Haile Selassie Roundabout MM8 public toilet, pursuant to a management agreement dated October 1, 2018 with the 1st defendant, Nairobi City County. The 1st defendant admitted the agreement but explained that by a deed of transfer executed February 25, 2020 and gazetted under Gazette Notice No. 1609, management of public toilets was transferred to the 2nd defendant. The 2nd defendant raised a preliminary objection contending that the dispute is purely contractual and lies outside the ELC's jurisdiction under Article 162(2)(b) and section 13 of the ELC Act. The court directed that the objection and motion be heard together with written submissions. The court framed three issues: the merit of the preliminary objection, the injunction threshold, and costs. Relying on the Co-operative Bank v Njuguna explanation, the court held that the toilet management contracts relate to and substantially concern the use of land and are not mere commercial contracts, so the preliminary objection failed. On the injunction, applying Giella v Cassman Brown as restated in Nguruman and Mrao, the court found the three-year management contract expired on October 2, 2021 without renewal, leaving the applicants no legal right capable of infringement. The application was dismissed with costs to abide the outcome of the main suit.

Key legal issues

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01

Whether the ELC has jurisdiction over a dispute concerning a public toilet management contract

Holding

The preliminary objection fails; the toilet management contracts relate to the use of land and fall within the ELC's jurisdiction under section 13 of the ELC Act.

Reasoning

Applying the Court of Appeal's explanation in Co-operative Bank v Njuguna, the court examined the context of the toilet management contracts. The contract permitted the applicants to use the suit land and substantially concerned use of land; they are not mere commercial contracts. Jurisdiction over disputes connected to use of land therefore lies with the ELC despite the contractual nature of the dispute.

p. 4
02

Whether the applicants met the Giella v Cassman Brown threshold for a temporary injunction

Holding

No. The three-year management contract expired on October 2, 2021 and was not renewed, so there is no prima facie case.

Reasoning

The applicants' claimed right rested on the management agreement dated October 1, 2018, whose term was three years. There was no evidence of renewal, so no legal right remained capable of being infringed. Without a prima facie case, the first and foundational hurdle in the Giella/Nguruman sequential test fails and the injunction cannot issue.

p. 4

Legal principles established

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  • Contracts permitting occupation and use of land are within the jurisdiction of the ELC under section 13 of the ELC Act where they substantially concern use of land.
  • An applicant for an interlocutory injunction must establish a prima facie case with a legal right capable of being infringed; where the underlying contract has expired and was not renewed, no such right exists.

Court orders

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  1. 1.The 2nd defendant's preliminary objection on jurisdiction is dismissed (it has no merit).
  2. 2.The notice of motion application dated May 18, 2021 seeking a temporary injunction is dismissed.
  3. 3.Costs of the application to abide the outcome of the main suit.

Authorities

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Legislation

  • Constitution of Kenya (2010)Article 40
  • Constitution of Kenya (2010)Article 162(2)(b)
  • Civil Procedure ActSections 1A, 3A & 3B
  • Civil Procedure Rules (2010)Order 40
  • Environment and Land Court ActSection 13

Cases cited (9)

  • Giella v Cassman Brown
    [1975] EA 558
  • Mrao Limited v First American Bank of Kenya Limited
    [2003] eKLR
  • Ecotact Limited t/a Iko Toilets v Nairobi City County
    [2018] eKLR
  • Julius K. Atunga v Naumy Jebyegon Kemboi
    [2014] eKLR
  • Co-operative Bank Limited v Patrick Kangethe Njuguna & 5 others
    (2017) eKLR
  • Suzanne Butler & 4 Others v Redhill Investments & another
    [2017] eKLR
  • Sinai Vision Limited & another v Nairobi County Government & another
    (2018) eKLR
  • Gregory Kitonga Wambua & 2 others v County Government of Kiambu
    (2019) eKLR
  • Nguruman Limited v Jan Bonde Nielsen & 2 others
    CA No.77 of 2012 (2014) eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution and section 13 of the Environment and Land Court Act

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, "Kariuki & another v Nairobi City County & another (Environment & Land Case E170 of 2021) [2022] KEELC 2949 (KLR)", Case Analysis (2022). Not stated in the judgment as extracted. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2949/eng@2022-05-12

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