Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedELC Case (Mombasa) – three consolidated applications dated 17th September 2023, 10th November 2023 and 29th November 2023· [2024] KEELC 80 (KLR)

Vaghadia & 2 others v Darul Naeem Apartments Limited & another (Environment & Land Case E005 of 2023) [2024] KEELC 80 (KLR)

Environment and Land Court
24 January 2024
SKS. M. Kibunja
3,641 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
This ruling of the Environment and Land Court at Mombasa (S. M. Kibunja, J) determined three applications arising from a nuisance dispute between neighbouring landowners. The plaintiffs own Mombasa/Block XXI/190/MN, adjacent to the 1st defendant's plot Mombasa/Block XXI/191/MN where the 2nd defendant is constructing a fifteen-storey building. The plaintiffs complained of falling wet cement, debris and dust damaging their property and endangering occupants, and sought stoppage of construction, erection of barriers, a permanent injunction, and contempt orders. The defendants, though served, filed no replies to the applications dated 17th September 2023 and 10th November 2023. On 27th November 2023 the court, treating the contempt application as unopposed, allowed it in terms of prayer 3 and issued summons to the 2nd defendant's directors. The 2nd defendant then sought review and setting aside of those orders and leave to defend. The court held that uncontroverted affidavit evidence is taken as true, that the review threshold under Order 45 Rule 1 was not met, and that the 2nd defendant had made a deliberate decision not to defend. The first application was marked compromised with an order that the defendants continue erecting and maintaining barriers pending determination of the suit; the permanent injunction prayer was deferred to trial; the review application was dismissed; the contempt summons against the directors was suspended to allow settlement or court-annexed mediation; and costs in all three applications were left to discussion or in the cause.

Key legal issues

#
01

Effect of failure to file replies to served applications

Holding

Unchallenged sworn averments are taken as true and the application may be treated as unopposed and granted as prayed

Reasoning

The defendants were served with the applications of 17th September 2023 and 10th November 2023 but filed no replies as required under Order 51 Rule 14 of the Civil Procedure Rules. Relying on Daniel Kibet Mutai and Kennedy Otieno Odiyo, the court held that general denials do not controvert sworn averments, so the plaintiffs' averments stood unrebuted and the applications could properly be treated as unopposed.

p. 4
02

Review of the ex parte orders of 27th November 2023

Holding

The 2nd defendant failed to meet the Order 45 Rule 1 threshold and its review application was dismissed

Reasoning

To obtain review, the applicant had to establish new and important evidence not reasonably available earlier, an error apparent on the record, or other sufficient reason. The affidavits and submissions showed no such grounds, no explanation for non-filing of replies, and no draft reply for the court's assessment. The court concluded there was a deliberate decision not to defend, and no blame attached to the plaintiffs.

03

Commitment for contempt of the orders of 25th September 2023 and 27th November 2023

Holding

Summons to the directors suspended to allow settlement discussions, possibly court-annexed mediation

Reasoning

Although the defendants breached the orders, the court weighed Articles 40 and 42 rights of both sides, noted partial compliance (scaffolding and mabati canopy impeded by heavy rains), and considered that with goodwill and counsel's support the parties could agree on effective securing of the plaintiffs' property. Suspension of the summons was the fair and just course.

p. 7

Legal principles established

#
  • A permanent injunction determines the rights of the parties and is granted only upon the merits after evidence has been tendered
  • Grounds of opposition address only issues of law and cannot amount to a proper denial of sworn averments; uncontroverted averments on affidavit are taken as true
  • Review under Order 45 Rule 1 requires establishment of new and important matter, mistake or error apparent on the record, or other sufficient reason
  • A party that deliberately fails to file replies after service, without explanation, is treated as having made a deliberate decision not to defend the application

Court orders

#
  1. 1.The application dated 17th September 2023 marked compromised through an order that the defendants continue securing and safeguarding the plaintiffs' property Mombasa/Block XXI/190/MN by erecting and continuously maintaining effective and appropriate barriers on their property Mombasa/Block XXI/191/MN, pending hearing and determination of the suit
  2. 2.The 2nd defendant's notice of motion dated 29th November 2023 dismissed
  3. 3.The summons to the 2nd defendant's directors suspended to allow the parties to discuss all issues in dispute and report to court on a date to be fixed; parties may consider court-annexed mediation
  4. 4.Costs in all three applications to be an issue for discussion and, if no settlement, to be in the cause
  5. 5.A mention date to be fixed

Authorities

#

Legislation

  • Civil Procedure RulesOrder 51 Rule 14
  • Civil Procedure RulesOrder 51 Rule 15
  • Civil Procedure RulesOrder 45 Rule 1
  • Civil Procedure ActSections 1A, 1B and 3A
  • Environment and Land Court Act, No. 19 of 2011Sections 7 and 13(7)
  • Environmental Management and Coordination Act, Chapter 387Section 3(3)
  • Constitution of KenyaArticles 24(1), 40, 42 and 60(1)

Cases cited (5)

  • Kenya Power & Lightning Company Ltd v Sheriff Molan Habib
    (2018) eKLR
  • Daniel Kibet Mutai & 9 others v Attorney General
    [2019] eKLR
  • Peter O. Nyakundi & 68 others v Principal Secretary, State Department of Planning, Ministry of Devolution and Planning & another
    [2016] eKLR
  • Kennedy Otieno Odiyo & 12 Others v Kenya Electricity Generating Company Limited
    [2010] eKLR
  • Ochola Kamili Holdings Ltd v Guardian Bank Ltd
    [2018] eKLR
Jurisdiction invoked
Section 7 of the Environment and Land Court Act, No. 19 of 2011; section 3 of the Environmental Management and Coordination Act (Chapter 387); section 3A of the Civil Procedure Act; Articles 40, 42, 24(1) and 60(1) of the Constitution of Kenya

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Vaghadia & 2 others v Darul Naeem Apartments Limited & another (Environment & Land Case E005 of 2023) [2024] KEELC 80 (KLR)", Case Analysis (2024). ELC Case (Mombasa) – three consolidated applications dated 17th September 2023, 10th November 2023 and 29th November 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/80/eng@2024-01-24

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