Mussukuya v Musoi & 3 others (Environment and Planning Civil Case E019 of 2025) [2026] KEELC 5287 (KLR)
The bottom line
#A Nairobi court stopped a neighbour from running a cleaning business in a residential property pending trial, but refused orders that would shut the business down completely.
What this practically means
#Executive summary
#Key legal issues
#Whether a prima facie case was established
Yes - the Applicant's concerns about noise pollution and blocked access affecting quiet possession, with the Respondent admitting no change of user had issued, established a prima facie case with probability of success
The court noted it was undisputed that the 1st Defendant was operating a carpet-cleaning business in a residential area without a change of user, though lawfulness was left for trial. The Applicant raised legitimate concerns about noise and blocked access affecting quiet possession, sufficient for a prima facie case.
Whether irreparable harm not compensable by damages was shown
Yes - wastewater discharge, sewer interference, blocked access, health hazards and security risks were continuous injuries unquantifiable in damages
Relying on Nguruman and Justus Irungu Githae, the court found photographic evidence of continuous injuries (wastewater flow, sewer interference, blocked access, security risks) that could not be adequately compensated by damages.
Whether a mandatory injunction should issue at the interlocutory stage
No - no special circumstances demonstrated; granting the orders would amount to closing the Respondent's business before trial
Applying Locabail and Nation Media Group v Mwau, the court held mandatory injunctions at interlocutory stage require special circumstances and a high sense of assurance. The orders sought would shut down the business pre-trial, risking injustice if the suit were ultimately dismissed.
Legal principles established
#- The Giella v Cassman Brown test governs interim injunctions: prima facie case with probability of success, irreparable harm not compensable by damages, and balance of convenience if in doubt
- An interlocutory mandatory injunction requires special circumstances and a higher standard than a prohibitory injunction
- Continuous injuries cannot be quantified or assessed in terms of damages
Court orders
#- 1.A temporary injunction is issued restraining the 1st Respondent and/or his servants or agents from continuing any construction and/or commercial activity on any part of L.R. No. 1/764 and from placing any materials in the shared entrance and common area adjoining the Applicant's premises pending the hearing and determination of the suit.
- 2.The Plaintiff/Applicant shall have costs of the application.
- Jurisdiction invoked
- Articles 40 and 159 of the Constitution of Kenya, 2010; Sections 57 and 72 of the Physical and Land Use Planning Act, 2019; Sections 3 and 58 of the Environment Management and Coordination Act (EMCA) 1999; Sections 1A, 1B, 3, 3A and 63 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mussukuya v Musoi & 3 others (Environment and Planning Civil Case E019 of 2025) [2026] KEELC 5287 (KLR)", Case Analysis (2026). ELC.E019.2025-NBI. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5287/eng@2026-08-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.