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ELCDismissedELC Case No. 30 of 2014 (O.S.)· [2024] KEELC 3350 (KLR)

Green Square Limited v Sheladia Associates Inc & 2 others (Environment and Land Case 55 of 2014) [2024] KEELC 3350 (KLR)

Environment and Land Court
25 April 2024
9,323 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~37 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Plaintiff filed suit by a Plaint dated 10th October 2014 (amended 10th August 2016) seeking a permanent injunction against interference with its proprietorship rights over land parcel L.R No. 631/1033 (I.R. No. 66379), an order that the Defendants redesign and shift the Mau Summit-Kericho-Nyamasaria road where it abuts its property in conformity with surveyor findings, and payment of survey fees, costs and interest. The 1st and 2nd Defendants, engineering consultants under Contracts RD-0421 and RD-0422, and the 3rd Defendant, the contractor, denied the claim, asserting their employer was KeNHA, that the Plaintiff's fence had obstructed the road reserve, and that the road had since been redesigned and built outside the Plaintiff's property. The court framed five issues and found that the project had been completed and handed over to KeNHA without harm to the Plaintiff's property, rendering the injunction and redesign prayers moot and overtaken by events. The claim for survey fees of Kshs. 68,000/= failed as special damages must be specifically pleaded and strictly proved; invoices are not conclusive proof of expenditure and no receipts were produced, contrary to Sections 107-109 of the Evidence Act. Notably, KeNHA, the employer, was never joined. The Plaintiff's own testimony that it was satisfied with the joint survey outcome and the situation as it stood sealed the fate of the suit. The court dismissed the suit with costs on 25th April 2024.

Key legal issues

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01

Whether a permanent injunction could issue against the Defendants

Holding

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

Reasoning

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.

p. 14
02

Whether the Defendants should be ordered to redesign and shift the road

Holding

The prayer failed as moot; the road had already been re-designed following the joint survey, constructed outside the Plaintiff's property and completed

Reasoning

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.

p. 14
03

Whether the Plaintiff was entitled to survey fees of Kshs. 68,000/= as special damages

Holding

The claim failed because the survey fees were not strictly proved; only invoices, not receipts of payment, were exhibited

Reasoning

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.

p. 14
04

Whether the Plaintiff's case had been overtaken by events (mootness)

Holding

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

Reasoning

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.

p. 15

Legal principles established

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  • 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

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  1. 1.The Plaintiff's suit dismissed with costs

Authorities

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Legislation

  • Civil Procedure CodeSections 1A, 3 & 3A
  • Evidence ActSections 107-109

Cases cited (10)

  • Nguruman Limited v Jan Bonde Nielsen & Others
    Civil Appeal No. 77 of 2012 [2014] eKLR
  • Principles of Injunctions, (1987) Interlocutory or Permanent by Richard Kuloba
  • China Wu Yi Limited & another v Irene Leah Musau
    [2022] eKLR
  • Jogoo Kimakia Bus Services Ltd v Electrocom International Ltd
    [1992] KLR 177
  • Joseph Kipkorir Rono v Kenya Breweries Limited & Another
    Kericho HCCA No. 45 of 2003
  • Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others
    [2014] eKLR
  • Kenya Power & Lighting Co. Limited v Sheriff Molana Habib
    [2018] eKLR
  • Hahn vs. Singh
    Civil Appeal No. 42 of 1983 [185] KLR 716
  • Zacharia Waweru Thumbi vs. Samuel Njoroge Thuku
    [2006] eKLR
  • Daniel Kaminja & 3 others (Suing as Westland Environmental Caretaker Group) vs. County Government of Nairobi
    [2019] eKLR
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

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.