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ELCPartially AllowedELC.E019.2025-NBI· [2026] KEELC 5287 (KLR)

Mussukuya v Musoi & 3 others (Environment and Planning Civil Case E019 of 2025) [2026] KEELC 5287 (KLR)

Environment and Land Court
14 August 2026
2,908 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 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

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Executive summary

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The Plaintiff, registered proprietor of Maisonette No. 4 on L.R. No. 1/764, Nairobi, moved the court by Notice of Motion dated 26/5/2026 seeking a temporary injunction restraining the 1st Respondent, owner of adjoining Maisonette No. 3, from continuing construction and commercial activity on the property, a mandatory injunction compelling removal of debris and equipment from shared areas, and a mandatory order compelling the 2nd to 4th Respondents (regulatory authorities) to enforce compliance. She alleged the Respondent operated a carpet-cleaning business ('Infinite, the Home Clean Experts') on residential premises without change of user, causing noise pollution, wastewater discharge, blocked access, sewer interference and security risks. The 1st Respondent denied the claims, asserting compliance including a pending change-of-user application and regularisation under the Nairobi City County Regularisation of Unauthorised Developments Act 2025. Applying Giella v Cassman Brown and Mrao, the court found a prima facie case with probability of success, noting the Respondent's admission that change of user had not issued. Relying on Nguruman and Justus Irungu Githae, it found continuous injuries unquantifiable in damages, and held the balance of convenience favoured the injunction. Applying Locabail and Nation Media Group v Mwau, it refused the interlocutory mandatory injunctions for want of special circumstances, holding they would close the business pre-trial. The application was partially allowed: a temporary injunction issued restraining construction and commercial activity pending hearing of the suit, with costs to the Plaintiff. The matter proceeds to trial.

Key legal issues

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01

Whether a prima facie case was established

Holding

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

Reasoning

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.

p. 7
02

Whether irreparable harm not compensable by damages was shown

Holding

Yes - wastewater discharge, sewer interference, blocked access, health hazards and security risks were continuous injuries unquantifiable in damages

Reasoning

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.

p. 8
03

Whether a mandatory injunction should issue at the interlocutory stage

Holding

No - no special circumstances demonstrated; granting the orders would amount to closing the Respondent's business before trial

Reasoning

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.

p. 9

Legal principles established

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  • 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

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  1. 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. 2.The Plaintiff/Applicant shall have costs of the application.

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 40, 159
  • Physical and Land Use Planning Act, 2019Sections 57, 72
  • Environment Management and Coordination Act (EMCA) 1999Sections 3, 58
  • Nairobi Zoning Regulations
  • Nairobi City County Regularisation of Unauthorised Developments Act 2025Section 13
  • Civil Procedure ActSections 1A, 1B, 3, 3A, 63
  • Civil Procedure Rules 2010Order 40 Rule 1, Order 51 Rules 1 and 3

Cases cited (6)

  • Giella v Cassman Brown
    [1973] EA
  • Mrao Ltd –vs- First American Bank of Kenya Ltd & 2 Others
    (2003) eKLR
  • Nguruman Limited Vs Bonde Nielsen & 2 Others
    (2014) eKLR
  • Justus Irungu Githae & 12 Others v Attorney General & 4 others
    [2016] eKLR
  • Locabail International Finance Ltd –v- Agro – Export & Another
    (1986) I ALLER 901
  • Nation Media Group & 2 others vs John Harun Mwau
    (2014) eKLR
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

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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, "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.