Watamu Association & another v 1st Respondent & others (temporary injunction application)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Petitioners established a prima facie case for a temporary injunction
Yes - the official survey report showed the 1st Respondent's construction is 9 metres within the riparian zone reserved for government purposes.
The court relied on the survey report ordered on 13th February 2023, produced by the Ministry of Lands & Physical Planning, which found the construction encroached 9 metres into the riparian zone. On that material, the Petitioners demonstrated a clear and unmistakable right threatened by the construction, satisfying the first Giella hurdle without the court conducting a mini-trial on the merits.
Whether the Petitioners would suffer irreparable loss if the injunction is not granted
Yes - destruction of the riparian ecosystem and violation of the right to a clean and healthy environment cannot be compensated in damages.
The court grounded the irreparable-injury analysis in Chapter 5 of the Constitution on land and environment, noting that land must be used sustainably and that sound conservation of riparian reserves entails protection of wetlands. Waste of such a resource would be irreparable and not compensable by damages, satisfying the second Giella hurdle and making a temporary injunction necessary.
Whether the interim orders of 13th February 2023 should be discharged on grounds of lack of locus standi
No - the application lacks merit and the locus standi issue is res judicata, having been determined by Odeny J on 13th July 2023.
The court found it improper to relitigate the Petitioners' capacity, which had already been addressed in a prior ruling of Odeny J delivered on 13th July 2023. Having upheld the injunction on the merits, the court saw no basis to discharge the interim orders and dismissed the 1st Respondent's motion under Order 40 rule 7.
Legal principles established
#- An applicant for an interlocutory injunction must sequentially establish a prima facie case, irreparable injury, and that the balance of convenience lies in his favour.
- Destruction of a riparian reserve / wetland ecosystem constitutes irreparable loss that cannot be adequately compensated by damages.
Court orders
#- 1.The notice of motion dated 30th January 2023 is allowed - temporary injunction granted pending hearing and determination of the petition
- 2.The 1st Respondent's notice of motion dated 15th September 2023 (seeking discharge of the temporary injunction issued on 13th February 2023) is dismissed
- 3.Costs of the two motions shall be in the cause
- Jurisdiction invoked
- Original petition jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution (land and environment); Order 40 Civil Procedure Rules for injunction and discharge applications
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Watamu Association & another v 1st Respondent & others (temporary injunction application)", Case Analysis (2024). Not stated in the judgment (Petition filed 2nd February 2023; notice of motion dated 30th January 2023; notice of motion dated 15th September 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1236/eng@2024-03-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.