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ELCPartially AllowedNot stated in judgment· [2025] KEELC 3457 (KLR)

Bamrah v Botrack Limited (Environment & Land Case E073 of 2025) [2025] KEELC 3457 (KLR)

Environment and Land Court
28 April 2025
COChristine Ochieng
2,774 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi court stopped a neighbour's apartment excavation because it was damaging an adjacent home, ruling that project approvals don't excuse construction damage.

What this practically means

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Executive summary

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The Plaintiff, registered owner of a half-acre residential property on Title Nairobi/Block 25/76 along Arboretum Drive, Kileleshwa, moved the Environment and Land Court by Notice of Motion dated 26 February 2025 seeking an interlocutory injunction restraining the Defendant, owner of the adjoining plot LR No. 209/1509, from continuing excavations for a proposed sixteen-level, 197-unit apartment development with basement parking. He relied on a structural engineer's report attributing heavy vibrations, noise and air pollution to weakening of his house foundations and boundary wall, part of which had already collapsed. The Defendant, through its Project Manager's replying and further affidavits, countered that it holds a NEMA EIA licence, undertook public participation in which the Plaintiff took part, carried out shoring, shotcrete, geotechnical testing, fencing repairs, and insurance cover, and that stopping the project would cause it substantial loss. In its supplementary affidavit the Plaintiff maintained the licence did not exempt the Defendant from strict liability in tort. The court framed a single issue: whether the Plaintiff met the threshold for an interlocutory injunction. Applying Giella v Cassman Brown and Mrao v First American Bank, and associating itself with the authorities on excavation damage and noise pollution, the court found a prima facie case: the perimeter wall was interfered with, noise levels were affecting the family, and the harm was irreparable and not compensable in damages. The court granted the restraining injunction pending hearing of the suit and ordered costs of the application to be in the cause. Judgment delivered virtually at Nairobi on 28 April 2025 by Christine Ochieng, J.

Key legal issues

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01

Whether the Plaintiff met the Giella v Cassman Brown threshold for an interlocutory injunction

Holding

The Plaintiff established a prima facie case and irreparable harm not compensable by damages, warranting an injunction restraining continued excavations

Reasoning

Applying Giella v Cassman Brown and Mrao Ltd v First American Bank, the court noted the unchallenged Structural Engineer's report attributing vibration damage to the Plaintiff's perimeter wall and house foundation. The Defendant did not deny the excavations caused damage and admitted repairs. Noise levels were interfering with the Plaintiff's family, and such harm could not adequately be compensated in damages, so the balance favoured interim restraint.

p. 6
02

Whether the Defendant's NEMA licence and project approvals excuse it from protecting the adjacent property

Holding

Licensing of the project does not obviate the Defendant's obligation to protect the neighbouring parcel from excavation damage; compliance with pollution limits was not demonstrated

Reasoning

The court juxtaposed the authorities on excavation damage and noise regulation. It noted the Plaintiff's expert evidence of vibration damage and the Defendant's admission of damage and repairs to the perimeter wall. While the Defendant relied on its EIA licence and asserted permissible noise levels, it did not demonstrate compliance with sound and air pollution standards or disprove the risk of irreparable harm, so approvals did not defeat the prima facie case.

p. 5

Legal principles established

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  • A plaintiff who demonstrates interference with his property and exposure to noise and vibration likely to cause harm not compensable in damages satisfies the threshold for an interlocutory injunction

Court orders

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  1. 1.Pending hearing and determination of the suit, a temporary order of injunction issued restraining the Defendant, whether by itself or through its contractors or whatsoever, from carrying out or continuing with excavations for its proposed residential development of apartments and basement parking on Plot LR 209/1509 along Arboretum Drive in Kileleshwa, thereby causing nuisance, sound and air pollution and vibration threatening destruction of the Plaintiff's residential house and boundary fence on Title Nairobi/Block 25/76
  2. 2.Costs of the application to be in the cause
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court (interlocutory application in a pending suit); no specific 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, "Bamrah v Botrack Limited (Environment & Land Case E073 of 2025) [2025] KEELC 3457 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3457/eng@2025-04-28

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