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ELCDismissedEnvironment and Land Case Civil Suit E107 of 2022· [2022] KEELC 12750 (KLR)

Jecinta Njeri Mwangi v Lucy Muthoni, James Muturi Ngugi & Pejom Contractors Ltd

Environment and Land Court of Kenya
27 September 2022
MMM.D. Mwangi
3,488 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi landowner lost her bid to stop storm water flowing onto her property because she couldn't prove her neighbours were to blame.

What this practically means

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Executive summary

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This is a ruling by the Environment and Land Court at Nairobi (M.D. Mwangi, J) on the plaintiff's notice of motion dated 14 March 2022 seeking interlocutory injunctions during the pendency of the suit. The plaintiff, registered proprietor of LR No 12500/5 in Ceder Grove Estate, Kasarani, sought to restrain the 3rd defendant from directing the estate's storm water to her property and to stop the 1st and 2nd defendants from allowing storm water or waste to leak into her land, alleging sewer leakages, environmental and health risks, and depreciation of her property. The defendants opposed, asserting a resolved boundary dispute, denial of leakages, that the 3rd defendant built proper drainage for the estate's cabro works, and that the plaintiff had encroached on a road reserve and came to court with unclean hands. The court directed the complaint to the National Environmental Complaints Committee, which filed a report dated 25 April 2022. The court held the report admissible despite the signatory not visiting the site, since an authorised officer signed it and the institution's agent attended. Applying Giella v Cassman Brown as elaborated in Mrao and Nguruman, the court found no prima facie case: the plaintiff's property is on a lower gradient, the estate lacks a drainage channel, the 2nd respondent provided a wayleave while the plaintiff declined to do so, and the seepage source was uncertain. The injunction against the 3rd defendant was overtaken by events since construction had stopped. The application was dismissed with costs to the defendants.

Key legal issues

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01

Whether the plaintiff established a prima facie case with a probability of success

Holding

No prima facie case was established against any of the respondents

Reasoning

The court relied on the NECC report showing the applicant's property is on a lower gradient, the estate lacks a drainage channel, the 2nd respondent provided a wayleave, and the applicant declined to provide one for a permanent solution. The seepage could not be attributed to the respondents' septic tanks given several soak pits and septic tanks in the area without a sewer line.

p. 6
02

Whether the NECC report should be considered despite the signatory not having visited the site

Holding

The report is admissible and was considered

Reasoning

NECC is a legally established institution and any officer duly authorised to execute documents on its behalf may do so. The institution's agent visited the site and the findings were incorporated in the report. The court therefore admitted and relied on the report in determining the application.

p. 5
03

Whether the injunction against the 3rd respondent was still necessary

Holding

The injunction sought against the 3rd respondent was overtaken by events

Reasoning

The NECC report indicated that the 3rd respondent had stopped construction of the estate road until the arising issues were resolved, and the applicant did not dispute that position, rendering the injunction against it moot.

p. 6

Legal principles established

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  • The three Giella v Cassman Brown conditions for an interlocutory injunction are sequential hurdles; if no prima facie case is established, the court need not consider irreparable harm or balance of convenience
  • A report of a legally established institution is admissible where an authorised officer signed it, even if the signatory did not personally visit the site, provided the institution's agent attended

Court orders

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  1. 1.The plaintiff's notice of motion application dated March 14, 2022 is dismissed
  2. 2.Costs of the application awarded to the defendants

Authorities

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Legislation

  • Environmental Management and Co-ordination ActSection 32

Cases cited (5)

  • Giella vs Cassman Brown & Co Ltd
    (1973) EA 358

    Conditions for grant of an interlocutory injunction

  • Mrao Ltd v First American Bank of Kenya Ltd & 2 Others
    [2003] eKLR

    Definition of a prima facie case in civil applications

  • Nguruman Ltd v Jan Bonde Nielsen & 2 Others
    (2014)

    The three Giella conditions are sequential, distinct hurdles

  • Nicholas Njeru Muturi v Thome Dynamics Limited & another
    [2022] eKLR

    If no prima facie case, court need not consider irreparable injury

  • Stephen Kipkebut t/a Riverside Lodge and Rooms v Naftali Ogola
    (2009) eKLR

    Cited by respondents - interim orders should not grant final relief

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (interlocutory application in a land/environment dispute)

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, "Jecinta Njeri Mwangi v Lucy Muthoni, James Muturi Ngugi & Pejom Contractors Ltd", Case Analysis (2022). Environment and Land Case Civil Suit E107 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/12750/eng@2022-09-27

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