Maru & 5 others v Effective Construction Limited & another; County Government of Nakuru & another (Interested Parties)
The bottom line
#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
#Executive summary
#Key legal issues
#Prima facie case
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
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.
Irreparable injury
Established - storm water mixing with sewerage rendered the plaintiffs' premises uninhabitable, an injury not adequately compensable in damages
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.
Balance of convenience
Tilts in favour of the plaintiffs - the inconvenience to them from continued construction outweighs any inconvenience to the defendants
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.
Defendants' environmental compliance
The defendants failed to produce a NEMA licence or tangible evidence of an Environmental Impact Assessment as required by law
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.
Legal principles established
#- 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
#- 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.Costs to be in the cause
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.