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ELCPartially AllowedEnvironment & Land Case 20 of 2023· [2023] KEELC 21301 (KLR)

Maru & 5 others v Effective Construction Limited & another; County Government of Nakuru & another (Interested Parties)

Environment and Land Court
3 November 2023
3,313 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Nakuru court stopped a road construction project because the contractor had no NEMA licence or real proof of an environmental assessment.

What this practically means

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Executive summary

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Six plaintiffs, being registered proprietors and tenants of land parcels Nakuru Municipality Block 1/1227 and 1/1226 adjacent to a road construction site, moved the Environment and Land Court at Nakuru by Notice of Motion dated 13 September 2023 seeking temporary injunctions restraining Effective Construction Limited and Smooth Consult Consulting Engineers Limited from constructing the Mbugua Mbugua Road, and a mandatory order to unblock and repair drainage and sewerage systems allegedly blocked by the construction, causing sewage-mixed storm water to flood their properties. They also sought an injunction until an Environmental Impact Assessment was carried out and its report filed in court. The defendants denied being the contractors, attributed the flooding to the area's history of flooding as an act of God, denied mandate over sewerage, and asserted an EIA report existed. Applying the Giella v Cassman Brown principles as restated in Nguruman Limited v Jan Bonde Nielsen, Ombwayo J found the plaintiffs had established a prima facie case through title documents, tenancy agreements and photographic and video evidence, anchored on the Article 42 right to a clean and healthy environment. The defendants had produced no NEMA licence and no tangible evidence of an EIA. Irreparable injury was shown as storm water mixing with sewerage rendered the premises uninhabitable, and the balance of convenience favoured the plaintiffs. The court granted a temporary injunction restraining construction of the Mbugua Mbugua Road pending the hearing and determination of the main suit, with costs in the cause. The mandatory and conditional EIA-related prayers were not included in the final orders.

Key legal issues

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01

Prima facie case

Holding

Established - plaintiffs produced title documents, tenancy agreements and photographic/video evidence showing flooding and sewage on their land, and their right to a clean and healthy environment under Article 42 was threatened

Reasoning

The court found the plaintiffs attached title documents, tenancy agreements and video and photographic evidence demonstrating the defendants were undertaking the construction and that flooding and sewage were affecting their property. The constitutional right to a clean and healthy environment under Article 42, enforceable under Article 70, supported the existence of an apparently infringed legal right calling for an explanation from the defendants.

p. 5
02

Irreparable injury

Holding

Established - storm water mixing with sewerage rendered the plaintiffs' premises uninhabitable, an injury not adequately compensable in damages

Reasoning

Relying on Pius Kipchirchir Kogo v Frank Kimeli Tenai on the meaning of irreparable injury, the court agreed with the plaintiffs that the mixing of storm water with sewerage made their premises uninhabitable, threatening health and property value in ways damages could not adequately compensate.

03

Balance of convenience

Holding

Tilts in favour of the plaintiffs - the inconvenience to them from continued construction outweighs any inconvenience to the defendants

Reasoning

Applying the balance-of-convenience test from Kogo and Paul Gitonga Wanjau, the court found the plaintiffs would continue to suffer health hazards as their right to a clean and healthy environment was threatened, so the greater harm would fall on them if the injunction were withheld.

04

Defendants' environmental compliance

Holding

The defendants failed to produce a NEMA licence or tangible evidence of an Environmental Impact Assessment as required by law

Reasoning

The court noted the defendants had not produced a NEMA licence authorising the project and, although a report was produced, there was no tangible evidence that an Environmental Impact Assessment was actually carried out as required by law. This weighed in favour of the plaintiffs' case.

p. 4

Legal principles established

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  • The triple requirements for an interlocutory injunction - prima facie case, irreparable injury and balance of convenience - are separate, distinct and logical hurdles to be surmounted sequentially
  • A prima facie case in civil matters is one where a legal right has apparently been infringed so as to call for an explanation or rebuttal from the opposite party

Court orders

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  1. 1.An order of temporary injunction barring the Defendants/Respondents, their agents, employees, contractors, servants and/or whomsoever acting on their behalf from developing and/or carrying out construction works specifically of the Mbugua Mbugua Road pending the hearing and determination of the main suit
  2. 2.Costs to be in the cause

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 40 Rule 1 (a) and (b)
  • Constitution of Kenya, 2010Article 42
  • Constitution of Kenya, 2010Article 70

Cases cited (5)

  • Giella Versus Cassman Brown
    (1973) EA 358

    Settled principles for grant of temporary injunctions

  • Nguruman Limited versus Jan Bonde Nielsen & 2 others
    CA No.77 of 2012 (2014) eKLR

    Triple sequential requirements for interlocutory injunctions

  • Mrao Ltd Versus First American Bank of Kenya Ltd
    (2003) EKLR

    Definition of a prima facie case in civil cases

  • Pius Kipchirchir Kogo Vs Frank Kimeli Tenai
    (2018) eKLR

    Meaning of irreparable injury and balance of convenience

  • Paul Gitonga Wanjau Vs Gathuthis Tea Factor Company Ltd & 2 others
    (2016) eKLR

    Balance of convenience in determining interlocutory injunctions

Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act; constitutional environmental rights under Articles 42 and 70 of the Constitution of Kenya 2010

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, "Maru & 5 others v Effective Construction Limited & another; County Government of Nakuru & another (Interested Parties)", Case Analysis (2023). Environment & Land Case 20 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21301/eng@2023-11-03

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