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ELCDismissedEnvironment & Land Case 173 of 2019· [2023] KEELC 20364 (KLR)

Ramogo & another v Integrity Holdings Limited

Environment and Land Court
25 September 2023
BEB M Eboso
3,597 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to stop a neighbour's building because the complainants' own structure also broke planning laws.

What this practically means

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Executive summary

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The two plaintiffs, co-proprietors of Dagoretti/Kinoo/6181 with a block of 32 residential apartments, sued Integrity Holdings Limited, owner of the abutting parcel Dagoretti/Kinoo/5214, over the defendant's construction of flats. They sought a permanent injunction restraining continued construction, Kshs 140,000 per month from filing suit until the defendant corrected its development, general and aggravated damages, an order directing the area OCS to enforce court orders, and costs. They alleged the defendant's building blocked natural light, invaded privacy, leaned dangerously on and cracked their building, and caused water seepage, leading to tenants vacating. The defendant countered that its development complied with County Government of Kiambu architectural approvals and blamed the plaintiffs' own illegal construction and poor workmanship. At trial, each side's witness conceded exceeding approved floors: the plaintiffs were approved for five floors but built six; the defendant was approved for five but built seven. Neither party exhibited NEMA/environmental impact assessment approvals or led expert evidence. The court found both developments illegal under physical planning, land use and environmental laws. It held the plaintiffs, whose own structure was unlawful, did not deserve the equitable remedy of injunction, and that their damages claims failed because the structure was itself a transgression and quantum was unproved. The suit was dismissed with each party bearing their own costs, and the judgment was referred to the Kiambu County CEC for Physical Planning and the NEMA Director General for necessary action to protect the public.

Key legal issues

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01

Whether both developments violated planning and environmental laws

Holding

Both structures were illegal - each party was approved for five floors but erected six and seven floors respectively, with no development approvals for the extra floors and no NEMA approvals exhibited

Reasoning

PW1 conceded approval was for five floors yet six were erected; DW1 admitted approval for five floors but erected seven. Neither party exhibited environmental impact assessment licences or led expert evidence. The court found both developments contravened mandatory physical, land use planning and environmental management requirements.

p. 6
02

Whether permanent injunction should issue

Holding

Refused - plaintiffs, having built in contravention of the law, do not deserve equitable relief

Reasoning

Injunction is an equitable remedy. The plaintiffs sought protection for a development they themselves erected in breach of planning laws. The court held they must first ensure compliance with the relevant laws before seeking the court's protection.

p. 6
03

Whether special and general damages were merited

Holding

Refused wholly - the structure was itself illegal and quantum was not proved

Reasoning

Two reasons: the structure for which damages were sought exists as a transgression against planning and environmental laws; and PW1 conceded in cross-examination she did not know the quantum of loss suffered, so the court could not assess the monthly rental loss claimed.

p. 6
04

Costs

Holding

Each party to bear their own costs as both were in breach of the law

Reasoning

The court departed from the principle that costs follow the event because both parties disregarded physical planning, land use and environmental management laws; neither deserved an award of costs.

p. 7

Legal principles established

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  • A party whose own development contravenes physical planning and environmental laws does not deserve equitable relief of injunction until they regularise their development
  • Damages cannot be awarded where quantum is not proved; the court will not pluck figures from the air
  • Where both parties are in breach of the law, neither deserves an award of costs

Court orders

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  1. 1.Suit dismissed for lack of merit
  2. 2.Each party to bear their respective costs
  3. 3.Copy of the judgment to be given to the Kiambu County Executive Committee Member in Charge of Physical and Land Use Planning and the Director General of NEMA to enable them take necessary steps to protect the general public
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land use planning and environmental disputes relating to land (Article 162(2)(b) and ELC Act)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Ramogo & another v Integrity Holdings Limited", Case Analysis (2023). Environment & Land Case 173 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20364/eng@2023-09-25

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