Riech & 2 others v Maloba & 3 others
The bottom line
#A Nairobi court halted construction of apartment blocks in a single-dwelling zone, ruling residents' rights cannot simply be paid off with money later.
What this practically means
#Executive summary
#Key legal issues
#Prima facie case
The Applicants established an apparent infringement of their rights by the construction of multiple dwelling units in an area zoned for single dwellings
The Applicants are residents of Delta Drive Court and owners of the bordering Plot 377; they contend the 1st Defendant is constructing multiple dwelling units contrary to zoning policies allowing only single dwellings, and that petitions to the regulatory defendants bore no fruit. This discloses a right apparently infringed, calling for rebuttal at the hearing.
Irreparable injury
If the Applicants' rights are infringed, no amount of money can compensate; damages would be inadequate
The Court reasoned that the construction of multiple dwelling units may burden shared facilities of water, sewerage, parking and garbage collection, evidence of which would be provided at the trial. Relying on Olympic Sports House and Niaz Mohammed Janmohammed, the Court held a crystallised right cannot be equated to compensation by damages.
Balance of convenience
The balance of convenience tilts in favour of maintaining the status quo existing before the alleged unlawful construction
The Court noted construction had commenced and stopping it would cost money and time, but equally demolition would take time and money if the Plaintiffs ultimately succeeded. The status quo to be preserved is that existing before the 1st Defendant's alleged unlawful actions, per Agnes Adhiambo Ojwang v Wycliffe Odhiambo Ojijo.
Legal principles established
#- A party cannot be condemned to take damages where a crystallised right can be protected by an injunction
- The status quo to be preserved by an injunction is that which existed before the wrongful act
Court orders
#- 1.Temporary injunction restraining the Defendants from constructing, developing, building or dealing with Plot No 376, Harambee Sacco Estate pending inter partes hearing of the application and the Plaintiffs' main case
- 2.Orders suspending any further construction and development on Plot No 376, Harambee Sacco Estate by the 3rd and 4th Defendants
- 3.The order to be executed through the OCS Donholm Police Station
- 4.Costs of the application to the Plaintiffs
- Jurisdiction invoked
- Order 40 Rules 1(a) and 2(1)(2) of the Civil Procedure Rules; Constitution of Kenya; Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Riech & 2 others v Maloba & 3 others", Case Analysis (2022). Environment and Land Case Civil Suit E003 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15121/eng@2022-11-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.