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ELCPartially AllowedNot stated in judgment (Petitioners' Notice of Motion dated 12/04/2024)· [2024] KEELC 5240 (KLR)

Mallo & another v Nairobi City County & another (Environment & Land Petition E010 of 2024) [2024] KEELC 5240 (KLR)

Environment and Land Court
8 July 2024
2,482 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Petitioners/Applicants moved the Environment and Land Court at Nairobi by Notice of Motion dated 12/04/2024 seeking, pending the hearing of their Petition, an injunction restraining the Respondents from continuing construction on Plot No. 36/1/790 Eastleigh, a declaration that the 2nd Respondent was constructing on the wrong parcel, police enforcement of orders, and costs. The application was founded on the Civil Procedure Act, Articles 10, 42 and 70 of the Constitution, EMCA and the Environment and Land Court Act. The 1st Respondent had filed a preliminary objection without filing a Notice of Appointment and did not oppose the application; no submissions were filed. The Court restated the Giella v Cassman Brown tripartite test and the Nguruman and Mrao formulations of a prima facie case, noting the applicants' complaint that the Aziz Towers construction had encroached on a pedestrian walkway, blocked Galole Street Road and interfered with storm discharge and sewerage systems. Rather than adjudicating the triple test, the Court analysed the nature of status quo orders, holding that they are ancillary preservation orders distinct from injunctions, may originate from the court's own motion under its general jurisdiction (Section 3A), do not require proof of a prima facie case, and must clearly describe the state of affairs preserved. The Court ordered maintenance of status quo - cessation of all further construction on Plot No. 36/1/790, peace at the suit property, police enforcement - with costs in the cause. Mogeni J delivered the ruling on 8 July 2024.

Key legal issues

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01

Principles for grant of temporary injunction

Holding

Temporary injunctions require establishment of a prima facie case, irreparable injury not compensable in damages, and, if in doubt, balance of convenience (Giella v Cassman Brown; Nguruman).

Reasoning

The Court restated the tripartite Giella test as modified by Nguruman, and the Mrao definition of a prima facie case. It cautioned itself against holding a mini-trial or examining the merits closely. However, rather than granting a formal injunction, the Court framed its relief as a status quo order under its inherent jurisdiction under Section 3A and Order 40 Rule 1(a), so the strict triple test was not the operative basis of the orders made.

p. 2
02

Nature and scope of status quo orders

Holding

Status quo orders are ancillary preservation orders distinct from injunctions; they may issue on the court's own motion for case management and to prevent prejudice, and must clearly describe the state of affairs preserved.

Reasoning

Relying on Palm Homes, KALPA, Fatuma Abdi Jillo and Thugi River Estate, the Court held that a status quo order preserves the existing state of affairs pending determination, does not require proof of a prima facie case, and that the court must describe with specificity the state of affairs to be frozen. This reasoning directly grounded the orders made: cessation of construction on Plot No. 36/1/790 and maintenance of peace pending the Petition.

p. 5

Legal principles established

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  • A status quo order is an ancillary order for preservation of the existing situation, distinct from an injunction, and does not depend on proof of a right or prima facie case
  • A court may originate a status quo order on its own motion in exercise of its general or statutory jurisdiction, as a case management strategy
  • Where the court originates a status quo order, it must clearly describe the state of affairs to be preserved

Court orders

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  1. 1.An order for status quo to be maintained on Plot No. 36/1/790 Eastleigh, with no further construction or construction activities until the Petition is heard and determined
  2. 2.No further constructions or developments by the Respondents on the suit property; ongoing construction by the 2nd Respondent to forthwith cease
  3. 3.Maintenance of peace and tranquility by all parties and their agents at the suit property during the pendency of the Petition
  4. 4.The officer in charge of the nearest police station to ensure compliance with the court orders
  5. 5.Costs in the cause

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure Rules 2010Order 40 Rule 1(a)
  • Constitution of KenyaArticles 10, 42, 70
  • Environment Management & Coordination ActSection 3(3)
  • Environment & Land Court ActSections 13(2), 7

Cases cited (8)

  • Giella vs. Cassman Brown & Co. Ltd
    1973 E.A 358
  • Nguruman Ltd v. Jan Bonde Nielsen & 2 Others
    [2014] eKLR
  • Mrao Ltd v. First American Bank of Kenya Ltd & 2 Others
    [2003] eKLR
  • Republic v National Environment Tribunal, Ex-parte Palm Homes Limited & Another
    [2013] eKLR
  • Kenya Airline Pilots Association (KALPA) v Co-operative Bank of Kenya Limited & another
    [2020] eKLR
  • Fatuma Abdi Jillo v Kuro Lengesen & another
    [2021] eKLR
  • Thugi River Estate Limited & another v National Bank of Kenya Limited & 3 others
    [2015] eKLR
  • Saifudeen Abdullahi & 4 Others in Mombasa High Court Misc. Civil Cause No. 11 of 2012
Jurisdiction invoked
Sections 1A, 1B & 3A of the Civil Procedure Act; Articles 10, 42 & 70 of the Constitution; Section 3(3) of the Environment Management & Coordination Act; Sections 13(2) & 7 of the Environment & Land Court Act; Order 40 Rule 1(a) Civil Procedure Rules 2010

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mallo & another v Nairobi City County & another (Environment & Land Petition E010 of 2024) [2024] KEELC 5240 (KLR)", Case Analysis (2024). Not stated in judgment (Petitioners' Notice of Motion dated 12/04/2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5240/eng@2024-07-08

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