Wabere & 4 others v Aqua Houses Ltd t/a Pearl City Apartments & 2 others (Environment & Land Case E014 of 2024) [2025] KEELC 3145 (KLR)
The bottom line
#Mombasa's Environment and Land Court stopped a Nyali high-rise development mid-construction, ruling neighbours showed enough risk to pause it until trial.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Notice of Motion dated 1st November, 2024 meets threshold required of a temporary injunction under Order 40 Rules 1 of the Civil Procedures Rules, 2010
- 2.Whether the parties herein are entitled to the reliefs sought
- 3.Who will bear the Costs of Notice of Motion application 1st November, 2024
Key legal issues
#Whether the applicants met the Order 40 Rule 1 threshold for a temporary injunction
Yes - prima facie case, irreparable injury and balance of convenience all established
The court applied the Giella principles as elaborated in Nguruman. On the material, the applicants border the suit property and showed a prima facie case with probability of success; the ongoing seven-storey construction could not be adequately compensated by damages; and the balance of convenience favoured preserving the suit property pending trial.
Whether a permanent and/or mandatory injunction could issue at the interlocutory stage
No - both refused as premature and not clear-cut
The court held a permanent injunction is a decree granted only after full hearing and evidence. The mandatory-injunction limb likewise failed, since no compelling circumstances or immediate pressing injury were shown and the case was not within the exceptional 'clear cases' category justifying a mandatory order at interlocutory stage.
Costs of the application
Costs in the cause
Although Section 27(1) of the Civil Procedure Act provides that costs follow the event, the court exercised its discretion to defer the question of costs, ordering that costs of the application be in the cause pending the outcome of the suit.
Legal principles established
#- The three Giella conditions for an interlocutory injunction are separate, sequential hurdles that must all be surmounted
- A permanent injunction cannot issue at interlocutory stage as it is a decree granted only after full hearing
- A mandatory injunction at interlocutory stage is granted only in clear cases and to restore, not establish, a state of things
Court orders
#- 1.The Notice of Motion application dated 1st November, 2024 be and is hereby found to have merit thus allowed
- 2.An order of temporary injunction restraining the 1st Defendant/Respondent by itself, its servants and/or agents from continuing with the developments on Plot Number 5256/I/MN, Nyali, pending the hearing and determination of the suit
- 3.Mention on 29th April, 2025 before Hon. Mr. Justice J. Olola for Pre-Trial Conference pursuant to Order 11 of the Civil Procedure Rules, 2010
- 4.Costs of the Notice of Motion dated 1st November, 2024 shall be in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 40 and 51 of the Civil Procedure Rules, 2010; Sections 1A, 1B and 3A of the Civil Procedure Act (Cap. 21)
Relief refused
#Permanent injunction restraining the 1st Defendant from continuing the developments
Premature at interlocutory stage; suit yet to be heard on merit
Mandatory injunction (order (ii))
Not a clear-cut case; no compelling circumstances at interlocutory stage
Prayers (c) to (h), including declarations of invalidity, cancellation/revocation of the EIA licence and approval, and general damages
Substantive prayers reserved for full hearing
Costs
Costs of the Notice of Motion application dated 1st November, 2024 shall be in the cause
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
That an order of Temporary injunction do issue restraining the 1st Defendant/Respondent by itself, its servants and/or agents from continuing with the developments on all that parcel of land known Plot Number 5256/I/MN, Nyali, along Customs Area, Nyali, Mombasa County
That the cost of the Notice of Motion application dated 1st November, 2024 shall be in the cause.
I strongly find that the Plaintifis/Applicants have met the criteria for grant of orders of temporary injunction.
it would be premature for me to grant a permanent injunction at this stage.
the present case does not fall within the category of clear-cut cases that can form a basis to grant a mandatory injunction.
Prayers numbers ( c ) to ( h ) are substantive prayers which cannot be granted at this stage until the parties submit to a full hearing
Issues in the judgment
#Costs discussion follows the events principle suggesting the successful party should get costs, yet the order defers costs to the cause without reconciling the two positions
Mention for Pre-Trial Conference is directed before Hon. Mr. Justice J. Olola whereas the ruling was delivered by Hon. Mr. Justice L. L. Naikuni
The court's issue-framing is internally inconsistent: the second listed issue is 'Whether the parties herein are entitled to the reliefs sought' but the substantive analysis re-titles the costs issue as 'Issue b)' and skips a distinct analysis of the reliefs issue
Paragraph 39 refers to 'continued threats to evict the Plaintifis out of the suit property', a fact not pleaded in the applicants' case concerning an adjacent development, suggesting copy-paste from a different matter
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wabere & 4 others v Aqua Houses Ltd t/a Pearl City Apartments & 2 others (Environment & Land Case E014 of 2024) [2025] KEELC 3145 (KLR)", Case Analysis (2025). Notice of Motion application dated 1st November, 2024 (Mombasa ELC suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3145/eng@2025-04-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.