Green Square Limited v Sheladia Associates Inc & 2 others (Environment and Land Case 55 of 2014) [2024] KEELC 3350 (KLR)
The bottom line
#A landowner's decade-old road dispute was dismissed because the problem was already fixed and no receipts proved the claimed costs.
What this practically means
#Executive summary
#Key legal issues
#Whether a permanent injunction could issue against the Defendants
No permanent injunction could issue because the road project had been completed and handed over to KeNHA without harm to the Plaintiff's property; the claim was overtaken by events
The court applied the principle that a permanent injunction is a decree granted on the merits after evidence, to protect a plaintiff's rights threatened or violated. Here the uncontroverted evidence, including the Certificate of Completion and handing over notes, showed the project was finished, handed over to KeNHA, and the Plaintiff's land was unaffected. There was thus no live threat of interference to restrain.
Whether the Defendants should be ordered to redesign and shift the road
The prayer failed as moot; the road had already been re-designed following the joint survey, constructed outside the Plaintiff's property and completed
Following a re-survey by the Government and private surveyors, it was found the road reserve encroached into the Plaintiff's property at two points by 0.7m and 1.6m. The County Surveyor advised a re-design, which the consultant produced and the contractor implemented, so the road was ultimately built outside the Plaintiff's property. The court found nothing remained to order.
Whether the Plaintiff was entitled to survey fees of Kshs. 68,000/= as special damages
The claim failed because the survey fees were not strictly proved; only invoices, not receipts of payment, were exhibited
Relying on Hahn v Singh, Jogoo Kimakia and Zacharia Waweru Thumbi, the court held special damages must be specifically pleaded, particularized and strictly proved. Invoices merely evidence a demand, not payment. No payment receipts were produced, and Sections 107-109 of the Evidence Act place the burden of proving asserted facts on the party alleging them.
Whether the Plaintiff's case had been overtaken by events (mootness)
Yes; the principal prayers were moot as the road had been re-designed, constructed, completed, handed over to KeNHA and was in use without interfering with the Plaintiff's property
Applying Black's Law Dictionary's definition of a moot case and Mativo J's formulation in Daniel Kaminja, the court held that courts act in vain on academic or hypothetical issues. The Plaintiff himself testified he was satisfied with the joint survey results and with the situation as it stood, confirming no live controversy remained.
Legal principles established
#- A permanent injunction fully determines the rights of the parties, is a decree of the court granted upon the merits after hearing, and requires proof that the plaintiff's right has been infringed, violated or threatened
- Special damages must be specifically pleaded and strictly proved; invoices are not conclusive proof of expenditure but merely show that payment has been demanded
- A matter is moot where events have removed any actual controversy between the parties such that any ruling would have no practical effect
Court orders
#- 1.The Plaintiff's suit dismissed with costs
- Jurisdiction invoked
- Original jurisdiction under Articles 162(2)(b) of the Constitution and the Environment and Land Court Act, with powers under Sections 1A, 3 & 3A of the Civil Procedure Code
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kipeen v Adan & 2 others (Environment & Land Case 722 of 2017) [2025] KEELC 3701 (KLR)[2025] KEELC 3701 (KLR)5 May 2025
Cite this brief
#Cite this brief
Caselaw, "Green Square Limited v Sheladia Associates Inc & 2 others (Environment and Land Case 55 of 2014) [2024] KEELC 3350 (KLR)", Case Analysis (2024). ELC Case No. 30 of 2014 (O.S.). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3350/eng@2024-04-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.