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ELCOtherEnvironment & Land Petition E001 of 2023· [2023] KEELC 17711 (KLR)

Otieno & another v Homabay County Water and Sanitation Company Limited & 2 others; County Director of Nema (Homabay) County (Interested Party)

Environment and Land Court
31 May 2023
GOGMA Ongondo
435 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Homa Bay refused to grant a temporary injunction because the other side had not yet been heard.

What this practically means

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Executive summary

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This is an interlocutory ruling by GMA Ongondo, J of the Environment and Land Court at Homa Bay in Environment & Land Petition E001 of 2023, in which petitioners Michael Kojo Otieno and another seek environmental-related relief against Homabay County Water and Sanitation Company Limited, Lake Victoria South Water Works Agency, and the County Executive Committee Member for Environment, Water and Sanitation, with the County Director of NEMA (Homa Bay) as interested party. The ruling dealt solely with prayer number 2 of the petitioners' Notice of Motion dated April 19, 2023, seeking a temporary injunction. The 1st respondent's counsel sought time to file and serve a response and submissions, to which the petitioners did not object. The 3rd respondent and interested party, though duly served, did not appear. Holding that none of the respondents had yet filed responses and submissions, and invoking Articles 48 and 50(1) of the Constitution and James Kanyiita Nderitu v Marios Philotas Ghikas [2016] eKLR, the court declined to grant the temporary injunction at that stage, reasoning it would be contrary to the interest of justice to do so without hearing all parties. It directed the respondents to file responses and submissions, the petitioners to effect service, fixed the application for further directions on July 26, 2023, and encouraged the parties to explore Alternative Dispute Resolution. No costs order was made.

Key legal issues

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01

Whether a temporary injunction could issue before all respondents filed responses and submissions

Holding

The court declined to grant the injunction at that stage, holding that hearing all parties is required in the interest of justice

Reasoning

The court noted that none of the respondents had yet filed and served responses and submissions on the application or the petition. Relying on Articles 48 and 50(1) of the Constitution and the decision in James Kanyiita Nderitu v Marios Philotas Ghikas, it reasoned that granting an interlocutory injunction without hearing all parties would offend fair hearing rights. It therefore deferred the application to a further directions date.

Legal principles established

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  • An interlocutory temporary injunction should not be granted before all parties, including those served but absent, have been heard

Court orders

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  1. 1.Declined to grant a temporary injunction at this stage of the application
  2. 2.1st respondent to file and serve response to the applicant; 2nd respondent, 3rd respondent and interested party to file and serve submissions on the application within the same period
  3. 3.Petitioners to serve the 3rd respondent and the interested party
  4. 4.Application fixed for further directions on July 26, 2023
  5. 5.Parties encouraged to embrace Alternative Dispute Resolution methods
Jurisdiction invoked
Constitution of Kenya, 2010 (Articles 48 and 50(1) invoked); Environment and Land Court jurisdiction over the petition

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, "Otieno & another v Homabay County Water and Sanitation Company Limited & 2 others; County Director of Nema (Homabay) County (Interested Party)", Case Analysis (2023). Environment & Land Petition E001 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17711/eng@2023-05-31

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