Mwaura & 3 others v Cabinet Secretary Ministry of Land, Public Works Housing and Development & 3 others (Environment & Land Petition E003 of 2024) [2024] KEELC 6101 (KLR)
The bottom line
#The Environment and Land Court in Thika refused to stop a housing project on disputed land because the applicants produced no real evidence, only assertions.
What this practically means
#Executive summary
#Key legal issues
#Competence of the 3rd Respondent's Replying Affidavit
Struck out as incompetent for non-compliance with Section 5 of the Oaths and Statutory Declarations Act, being sworn in Kiambu but commissioned in Nakuru.
The affidavit stated it was sworn at Kiambu but was commissioned in Nakuru before a commissioner for oaths. If the deponent signed before a commissioner in Kiambu, the commissioner ought to have signed in Kiambu. The court found the affidavit did not conform with Section 5 and struck it out.
Prima facie case
Not established; no evidence tendered to demonstrate the suit land is community land as claimed.
Apart from maps showing location of the suit land, no evidence demonstrated that the land is community land. No proof that Mbari ya Mutego submitted memoranda to the 1932 Land Enquiry Commission or that their claim was validated. Questions of ownership and surrender of land are reserved for trial.
Irreparable harm
Not established; alleged risks are compensable in damages.
The petitioners cited risks of air pollution and adverse climate change from the housing project, and non-compliance with EMCA. The court found these risks capable of calculation of monetary compensation and did not amount to irreparable injury.
Balance of convenience and overall discretion
The court was not persuaded to exercise its discretion in favour of the applicants.
Having failed on prima facie case and irreparable harm, and being unconvinced on balance of convenience, the court declined to exercise discretion for the applicants and dismissed the application with costs.
Legal principles established
#- An applicant for temporary injunction must establish prima facie case, irreparable injury, and balance of convenience sequentially as distinct hurdles.
- A party must place material before the court to establish a prima facie case; mere assertion is insufficient.
Court orders
#- 1.The 3rd Respondent's Replying Affidavit sworn 15/4/2024 struck out for non-compliance with Section 5 of the Oaths and Statutory Declarations Act
- 2.The Notice of Motion dated 19/2/2024 dismissed with costs to the Petitioners
- Jurisdiction invoked
- Original petition jurisdiction of the Environment and Land Court under the Constitution and the Environment and Land Court Act; interim relief sought under Order 40 rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwaura & 3 others v Cabinet Secretary Ministry of Land, Public Works Housing and Development & 3 others (Environment & Land Petition E003 of 2024) [2024] KEELC 6101 (KLR)", Case Analysis (2024). Notice of Motion dated 19/2/2024 (Petition at Environment and Land Court, Thika). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6101/eng@2024-09-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.