Sanders v Salim & another
The bottom line
#A Lamu property owner lost her bid to stop a neighbouring boatyard because she had no expert proof of pollution and no trespass claim.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff established a prima facie case for interlocutory injunction
No prima facie case established; ownership of the parcel was not in dispute, the dispute being over use of the beach front where the respondent operates a licensed business
The court held that the plaintiff's registered title to Lamu/Block IV/8 was undisputed, so ownership was not the issue. The real dispute concerned use of the beach front, where the respondent had operated a licensed fibre glass boat building business since 1974. Without proof of trespass or illegality, no prima facie case arose, ending the claim to interlocutory relief.
Whether the alleged toxicity and pollution of the boat building materials was proved
Not proved; scientific or expert evidence (e.g. from NEMA) is required
The plaintiff alleged that fibre glass boat construction used toxic substances creating a health hazard. The court found no scientific proof of toxicity or the level of pollution was adduced, holding that such allegations must be supported by evidence from NEMA or other qualified persons rather than word of mouth assertions.
Whether the absence of public participation in licensing invalidated the 1st respondent's operations
Claim doubted; the boat building site predates the plaintiff's arrival and her 2005 title
The plaintiff argued no proper public participation preceded issuance of licences. The court observed the boat building site had operated since 1974 while the plaintiff's title issued on 19th June 2005, questioning whether public participation would have been required before she came to the neighbourhood, and implying she acquiesced or came to a pre-existing state of affairs.
Legal principles established
#- An applicant for an interlocutory injunction must show a prima facie case with probability of success, irreparable injury not compensable by damages, and failing which the balance of convenience
- Failure to establish a prima facie case is fatal to any claim to interlocutory relief
- Allegations of pollution and toxicity require expert or scientific evidence, not mere assertion
Court orders
#- 1.The Notice of Motion dated 8th March 2022 is dismissed
- 2.Costs of the application awarded to the respondent
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over land use and environmental disputes (Notice of Motion dated 8th March 2022 in Civil Case E018 of 2022)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sanders v Salim & another", Case Analysis (2023). Civil Case E018 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17086/eng@2023-05-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.