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ELCPartially AllowedELC Case of Malindi· [2025] KEELC 3093 (KLR)

Chania Logistics Limited v Karanja & 3 others (Environment & Land Case E129 of 2024) [2025] KEELC 3093 (KLR)

Environment and Land Court
27 March 2025
3,524 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court ordered a landowner to remove asbestos roofing and structures blocking a public access road before the case is even heard.

What this practically means

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Executive summary

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The Plaintiff, registered owner of L.R. No. MN/III/11745 north of Mtwapa Creek, sought interlocutory mandatory injunctions compelling the 1st Defendant to remove a gate and structures erected with asbestos roofing at the intersections of beacons P2 and P34, obstructing a designated public access road separating its parcel from parcels L.R. Nos. 3083-3094, and to safely dispose of the asbestos under NEMA supervision. The 1st Defendant opposed, contending her three consolidated parcels were never surveyed or designated as a road but only a proposed feeder road, that the Plaintiff had alternative access, that ownership was contested in Malindi ELC No. E038 of 2023, and that the Sub-County Surveyor's report was fabricated since no survey occurred on 13 January 2025. Framing the issue as whether a mandatory injunction could issue at that stage and who should bear costs, the court found a prima facie case with likelihood of success: the 1st Defendant did not contest constructing with hazardous asbestos, and NEMA's report recommended immediate removal given cancer risks under Article 42 of the Constitution; the authenticated survey report of 13 January 2025 confirmed a designated public access road entirely blocked by her houses and flower trees, with no contrary evidence tendered. Applying authorities that mandatory injunctions issue interlocutorily in clear cases where the respondent is on the wrong, the court issued mandatory injunctions requiring asbestos removal within 30 days and removal of the wall section, houses and flower trees blocking the access road within 90 days, and awarded costs to the Applicant.

Key legal issues

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01

Whether a mandatory injunction could issue at the interlocutory stage

Holding

Yes - both the asbestos removal and the road obstruction were established by expert and regulatory evidence, so the 1st Defendant was clearly on the wrong and a mandatory order was justified without a full hearing

Reasoning

The court applied the rule that mandatory injunctions are granted interlocutorily only in clear cases or where the party is plainly on the wrong. The 1st Defendant did not contest constructing with asbestos, and NEMA recommended immediate removal. The 2nd Defendant's authenticated survey report confirmed a designated public access road wholly blocked by her structures. No contrary evidence was tendered.

p. 6
02

Whether the disputed parcel lies on a designated public access road

Holding

Yes - the Sub-County Surveyor's authenticated report of 13 January 2025 confirmed a designated public access road which the 1st Defendant had entirely obstructed

Reasoning

The 1st Defendant contended her land was only a proposed, unsurveyed feeder road. The court preferred the survey report of the 2nd Defendant, noting the Director of Surveys is the principal authority on land surveying, and that the report was authenticated by the Survey of Kenya. The 1st Defendant tendered no contrary evidence.

p. 6
03

Whether the hazardous asbestos construction engaged the constitutional right to a clean and healthy environment

Holding

Yes - Article 42 guarantees the right to a clean and healthy environment and the 1st Defendant's unchallenged use of asbestos supported the mandatory removal order

Reasoning

NEMA's site inspection report confirmed the asbestos structures posed life-threatening risks and required removal and safe disposal. The 1st Defendant did not contest using hazardous asbestos. The court invoked the constitutional environmental right in supporting the mandatory order.

p. 6

Legal principles established

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  • Mandatory injunctions may be granted at the interlocutory stage where the party against whom it is sought is clearly on the wrong
  • Where the defendant's act is unlawful, adequacy of damages need not be considered; a wrongdoer cannot retain an advantage gained by flouting the law
  • It is the trespasser who should give way pending determination of the dispute

Court orders

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  1. 1.Pending the hearing and determination of the suit, a mandatory injunction pursuant to the NEMA Improvement Orders dated 13th January 2025 that the 1st Respondent, at her costs, immediately removes the asbestos roofing on the offending building and disposes of the same within 30 days following the guidelines contained in those orders, under supervision of the 3rd Respondent; in default the Applicant may undertake the same and bill the 1st Respondent
  2. 2.Pending the hearing and determination of the suit, pursuant to the Survey Report dated 13th January 2025 by Lee Dzoro, Sub-County Surveyor Kilifi, a mandatory injunction directing removal of a section of the wall between beacon MM1 & P2, removal of the permanent house, semi-permanent house and flower trees that fall within and have blocked the access road as per sketch map LD8, within 90 days; orders to be signed and affixed to the offending structures
  3. 3.Costs of the application awarded to the Applicant to be borne by the 1st Respondent

Authorities

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Legislation

  • Interpretation and General Provisions ActCap 2
  • Environmental Management and Co-ordination (Waste Management) Regulations2006
  • Constitution of KenyaArticle 42

Cases cited (7)

  • Sharifi Abdi Hassan v Nadhif Jama Adan
    [2006] KECA 268 (KLR)
  • Mwangi v Erdermann Property Limited
    (Civil Appeal E064 of 2021) [2023] KEHC 17271 (KLR)
  • County Government of Kitui v Sonata Kenya Limited & 2 others
    [2023] KEELC 16543 (KLR)
  • Almed v Manasseh Benga & another
    [2019] eKLR
  • Locabail International Finance Ltd v Agro-Export and Another
    [1986] 1 ALL ER 901
  • Kamau Mucuha v The Ripples Ltd
    [1993] eKLR
  • Jaj Super Power Cash and Carry Ltd v Nairobi City Council and two others
    Civil Appeal No. 111 of 2002
Jurisdiction invoked
Article 42 of the Constitution; Environment and Land Court jurisdiction over interlocutory injunctive relief in land disputes

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, "Chania Logistics Limited v Karanja & 3 others (Environment & Land Case E129 of 2024) [2025] KEELC 3093 (KLR)", Case Analysis (2025). ELC Case of Malindi. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3093/eng@2025-03-27

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