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ELCAllowedNot stated in the judgment (suit instituted by plaint dated 11/1/2023)· [2024] KEELC 5837 (KLR)

Gichuhi (Suing on behalf of the Estate of Michael Gichuhi Muiru - Deceased) v Kenya National Highways Authority & another (Environment & Land Case E006 of 2023) [2024] KEELC 5837 (KLR)

Environment and Land Court
12 August 2024
1,352 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 plaintiff, suing on behalf of the estate of the late Michael Gichuhi Muiru, filed suit by plaint dated 11/1/2023 claiming that part of land parcel Kabete/Karura/2083, on which the deceased had built a huge hotel complex, was compulsorily acquired for construction of the Nairobi Western Bypass, and that the road works rendered the hotel inaccessible, ruining an investment valued at over Kshs 100,000 million. He sought orders compelling the defendants to open up and redesign the road to restore access and parking, plus general damages and costs. Together with the plaint he filed a notice of motion dated 11/1/2023 seeking an interlocutory mandatory order directing immediate restoration of access. The 1st defendant opposed through a replying affidavit of Eliud Munene, deposing that part of the land was acquired in 2020, works were ongoing, and the contractor had been instructed to reinstate access but awaited the plaintiff's removal of his fence. The court framed the sole question as whether the application met the criteria for a mandatory interlocutory injunction. Applying Locabail International Finance Ltd v Agro Export and the criteria restated in Malier Unissa Karim v Edward Oluoch Odumbe, the court found the plaintiff had demonstrated a clear interest in the land, a need to protect the investment pending trial, and that denial of access caused harm beyond monetary indemnification. Noting the 1st defendant's own acknowledgement of a duty to restore access, the court was satisfied the criteria were met and ordered the defendants to reinstate access to Kabete/Karura/2083 within 60 days, pending determination of the suit, with costs of the application in the cause.

Key legal issues

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01

Whether the plaintiff satisfied the criteria for a mandatory interlocutory injunction to compel reinstatement of access to the suit property

Holding

Yes. The plaintiff demonstrated a clear interest in the land, a need to protect that investment pending the suit, and that denial of access would cause harm beyond monetary loss; the 1st defendant had itself undertaken to restore access.

Reasoning

The court applied the Locabail and Kenya Breweries v Okeyo criteria: a mandatory interlocutory injunction is granted only in clear cases or where the act is simple and easily remediable. The plaintiff showed ownership and development of the land. The 1st defendant, through its deponent Eliud Munene, acknowledged a duty to reinstate access and blamed delay on the plaintiff's fence. The court found the balance of convenience favoured relief and that loss of access could not be adequately compensated in damages. The order issued tracked the defendant's own undertaking, to operate pending determination of the suit.

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02

Adequacy of damages as an alternative remedy

Holding

Damages would not be an adequate remedy because the dispute concerns access to a public road and the harm transcends monetary compensation.

Reasoning

The court noted that little submission was made on adequacy of damages, but reasoned that the loss of investment value and business at the hotel complex was not purely financial in character. Because the matter revolved around access to a public road, monetary indemnification could not restore the position, tipping the balance of convenience in favour of an interlocutory mandatory order.

p. 3

Legal principles established

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  • A mandatory injunction may be granted on an interlocutory application where the case is clear, the act is simple and easily remediable, or the defendant has stolen a march on the plaintiff.
  • The threshold for a mandatory interlocutory injunction is higher than that for a prohibitory injunction under the Giella v Cassman Brown principles.
  • Where access to land is in dispute, the harm may go beyond monetary indemnification, favouring interlocutory relief.

Court orders

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  1. 1.Pending the hearing and determination of this suit, the defendants are ordered to reinstate the access to land parcel number Kabete/Karura/2083 within 60 days from the date of the ruling
  2. 2.Costs of the application dated 11/1/2023 shall be in the cause

Authorities

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Cases cited (4)

  • Locabail International Finance Limited vs Agro Export and others
    [1986] All ER 906
  • Malier Unissa Karim vs Edward Oluoch Odumbe
    (2015) eKLR
  • Kenya Breweries Ltd vs Washington Okeyo
    (2002) EA 109
  • Giella vs Cassman Brown
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a dispute concerning land parcel Kabete/Karura/2083; no specific constitutional or statutory provision cited.

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, "Gichuhi (Suing on behalf of the Estate of Michael Gichuhi Muiru - Deceased) v Kenya National Highways Authority & another (Environment & Land Case E006 of 2023) [2024] KEELC 5837 (KLR)", Case Analysis (2024). Not stated in the judgment (suit instituted by plaint dated 11/1/2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5837/eng@2024-08-12

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