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ELCDismissedNot stated in the judgment (Notice of Motion dated 27.05.2024 within a petition)· [2025] KEELC 5253 (KLR)

Muoka & another v Mombasa Water Supply and Sanitation Co Ltd & 2 others (Environment and Land Petition E013 of 2024) [2025] KEELC 5253 (KLR)

Environment and Land Court, Mombasa
10 July 2025
YAY. M. Angima
1,559 words in judgment
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The bottom line

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Mombasa's Environment and Land Court refused to stop a water pipeline project because the applicants couldn't prove their property would actually be harmed.

What this practically means

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Executive summary

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The petitioners moved the court by notice of motion dated 27.05.2024 seeking an interim order stopping the installation of water pipes through their business premises, Thwake Resort at Chaani in Mombasa County, pending hearing of their petition. They deposed that they had leased the premises for three years from 06.09.2023, apprehended that the respondents' water project would adversely affect their business, and contended that other affected residents had been compensated while they had not, which they termed discriminatory and unconstitutional. The 1st respondent conceded an ongoing water project but asserted that all project-affected persons had been identified and compensated and that the petitioners were not affected persons. The 3rd respondent, an employee of the 1st respondent in the waste water department, sought to be struck out as wrongly joined. The court framed three issues: entitlement to the interim injunction, whether the 3rd respondent should be struck out, and costs. On the injunction, the court found no credible evidence identifying the property or its registered proprietor, no joinder of the alleged landlords, and no supplementary affidavit countering the 1st respondent's assertion; it held the petitioners had failed to establish even a prima facie case under Order 40 Rule 1 and the Giella principles. The 3rd respondent was found wrongly and improperly sued as an agent of a disclosed principal and was struck out with costs assessed at Kshs. 20,000/=. The application was dismissed in its entirety with costs to the 1st and 3rd respondents, and the petition was fixed for pre-trial directions on 14.10.2025.

Key legal issues

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01

Entitlement to interim injunction under Order 40 Rule 1

Holding

The petitioners failed to establish a prima facie case with probability of success; the application failed at the first Giella hurdle

Reasoning

The property was not identified by parcel number, sub-division number or CR number; the registered proprietor was not established; the alleged landlords were not joined or shown to be aware of the petition; and no supplementary affidavit was filed to counter the 1st respondent's assertion that the petitioners were not project-affected persons.

p. 3
02

Whether the 3rd respondent should be struck out of the proceedings

Holding

Yes; he was wrongfully and improperly sued, being an employee/agent of a disclosed principal with no involvement in the project

Reasoning

The 1st respondent's replying affidavit showed it was undertaking the water project. The 3rd respondent deposed he worked in the waste water department, uninvolved in the project, and the petitioners filed no supplementary affidavit to dispute this. Suing an agent of a disclosed principal in his personal capacity disclosed no reasonable cause of action.

p. 3
03

Costs of the application

Holding

Costs awarded to the 1st and 3rd respondents, costs following the event under Section 27 of the Civil Procedure Act

Reasoning

The court applied the general rule that costs follow the event, citing Hussein Janmohamed & Sons v Twentsche Overseas Trading Co Ltd, and found no good reason to depart from it since the application was dismissed and the 3rd respondent was improperly joined.

p. 4

Legal principles established

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  • Costs follow the event; a successful party should ordinarily be awarded costs unless the court for good reason directs otherwise
  • An agent of a disclosed and well-known principal ought not to be sued in his personal capacity; there is no reasonable cause of action against him

Court orders

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  1. 1.The Notice of Motion dated 27.04.2023 is dismissed in its entirety with costs
  2. 2.The 3rd Respondent is struck off the proceedings and the petitioners shall pay his costs assessed at Kshs. 20,000/=
  3. 3.The petition shall be mentioned on 14.10.2025 for pre-trial directions

Authorities

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Legislation

  • Constitution of KenyaArticle 159
  • Civil Procedure Act (Cap. 21)Sections 1, 1A, 3A, 63(e), 80, 27
  • Civil Procedure RulesOrder 40 Rule 1

Cases cited (2)

  • Giella vs Cassman Brown & Co Ltd
    [1973] EA 358
  • Hussein Janmohamed & Sons –vs- Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
Jurisdiction invoked
Article 159 of the Constitution of Kenya; Sections 1, 1A, 3A, 63(e) and 80 of the Civil Procedure Act (Cap. 21); Order 40 Rule 1 of the Civil Procedure Rules

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, "Muoka & another v Mombasa Water Supply and Sanitation Co Ltd & 2 others (Environment and Land Petition E013 of 2024) [2025] KEELC 5253 (KLR)", Case Analysis (2025). Not stated in the judgment (Notice of Motion dated 27.05.2024 within a petition). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5253/eng@2025-07-10

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