Joseph Kamau v The National Construction Authority, The Nairobi City County Government & Abroc Limited
The bottom line
#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 3rd Respondent's replying affidavit is fatally defective?
- 2.Whether the Applicant is entitled to the injunctive orders sought?
Key legal issues
#Whether the 3rd Respondent's replying affidavit was fatally defective
The affidavit was not struck out; the discrepancy in the deponent's description of the company and his authority are evidential matters requiring clarification at trial
The deponent described himself as a director of 'Abroc Construction Company Limited' while the joined party is Abroc Limited, and a CR12 showed a different sole director. However, the annexed documents concerned the impugned parcel and the deponent admitted receiving the suspension letter. Striking out would prematurely determine a disputed evidential issue and exclude relevant material.
Whether the Applicant was entitled to the mandatory interlocutory orders against the 1st Respondent
No - the relief was overtaken by events since the 1st Respondent had inspected the site, issued a suspension order and referred the breach to its Enforcement Unit
The court applied the settled principles on interlocutory mandatory injunctions requiring special circumstances or a clear case. The 1st Respondent had already performed the very acts sought (inspection and suspension), and a second inspection and re-suspension followed. Repeating acts already performed would serve no practical utility, and the court cannot dictate the regulator's enforcement mechanism.
Whether a mandatory order should issue against the 2nd Respondent to produce approved plans and permits
No - the 2nd Respondent filed no response, and the burden of proving approved development plans falls on the developer once works are stopped
The court could not assume the 2nd Respondent approved the plans when it did not participate. Since the development had been stopped by the 1st Respondent, the developer bears the burden of demonstrating that it obtained development permission; it is not for the 2nd Respondent to state whether it approved the plans.
Whether the Petition was moot or barred by the doctrine of exhaustion
No - the suspension only addressed part of the complaint, and Article 70 permits direct recourse to the court for threatened environmental violations alongside other remedies
The regulatory suspension did not determine the substantive constitutional questions, including access to information and a clean environment, and the Petition sought declarations, compensation and restorative relief beyond the regulator's action. Article 70 expressly allows court access in addition to other legal remedies.
Legal principles established
#- A mandatory injunction may be granted on an interlocutory application only in the absence of special circumstances will it not normally be granted; special circumstances or a clear case are required
- A mandatory injunction compels performance of an act; where the act sought has already been performed, there is no practical utility in directing its repetition
- Article 70 permits a person alleging a threatened environmental violation to approach the court in addition to other remedies, so such a petition is neither moot nor barred by exhaustion
- It is not for the court to prescribe the particular enforcement mechanism a statutory regulator must employ
Court orders
#- 1.The Notice of Motion dated 12th October 2025 is found to be unmerited and dismissed
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 20, 21, 22, 23, 50(1), 159(2), 162(2)(b) & (3) and 258 of the Constitution of Kenya; Sections 4, 13, 18 and 19 of the Environment and Land Court Act
Relief refused
#Mandatory order compelling the Respondents to stop further construction pending confirmation of the building's safety
The 1st Respondent had already inspected the site and issued a Suspension of Works Order; the relief was overtaken by events
Order compelling the 1st Respondent to produce the names of the developer and professionals overseeing the project
The developer's identity had been disclosed and the court cannot compel production of information the 1st Respondent does not possess
Order compelling the 2nd Respondent to produce approved plans and/or permits
The 2nd Respondent did not respond; the burden of showing approved plans lies on the developer once works are stopped
Striking out of the 3rd Respondent's replying affidavit sworn by Paul Njenga
Striking out would prematurely determine a disputed evidential issue and exclude potentially relevant material
Costs
The Notice of Motion dated 12th October, 2025 is dismissed with no order as to costs.
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.
In the result, and for the reasons I have given herein, the Notice of Motion dated 12th October, 2025 is found to be unmerited. The same is dismissed with no order as to costs.
A mandatory injunction can be granted on an interlocutory application as well as at the hearing, but, in the absence of special circumstances, it will not normally be granted.
before granting a mandatory interlocutory injunction the court had to feel a high degree of assurance that at the trial it would appear that the injunction had rightly been granted, that being a different and higher standard than was required for a prohibitory injunction.
The Petition is therefore neither moot nor barred by the doctrine of exhaustion.
It is not for the court, to prescribe the particular enforcement mechanism that the Authority must employ or to assume the functions entrusted to it by statute.
Issues in the judgment
#Duplicated issue in the framed issues: affidavit-defect question appears twice (i and iii)
3rd Respondent's deponent names 'Abroc Construction Company Limited' while the joined party is Abroc Limited
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Kamau v The National Construction Authority, The Nairobi City County Government & Abroc Limited", Case Analysis (2026). ELC EP PET NO. E041 OF 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6261/eng@2026-10-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.