Andrew Omboto & 3 others v Mwalimu National Investment Co-operative Sacco Limited & another [2018] KEELC 2105 (KLR)

REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT NAIROBI E.L.C. CASE NO. 284 OF 2018 ANDREW OMBOTO...........................................................1 ST PLAINTIFF FREDERICK OSIRO OMONDI........................................2ND PLAINTIFF BRENDA SABWA................................................................3 RD PLAINTIFF MIKE NGWENO BARAZA................................................4 TH PLAINTIFF VERSUS MWALIMU NATIONAL INVESTMENT CO-OPERATIVE SACCO LIMITED.................................1ST DEFENDANT BOARD OF DIRECTORS MWANICOS ACADEMY......2ND DEFENDANT RULING The Plaintiffs are proprietors and residents of various properties comprised in L.R. No. Nairobi/ Block 140/088/039, 140/088/034 and 140/088/033 in Nyayo Estate, located in Embakasi, Nairobi, which is a residential area. Through the application dated 6/6/2018, they seek a conservatory order to restrain the Defendants or their agents from further constructing the buildings on L.R. No. Nairobi/ Block 140/85 until this suit is heard and determined. The application is made on the grounds that the Defendants’ are constructing a multi-storey building comprising classrooms and ablution facilities on their property which is adjacent to the Plaintiffs’ houses. The Plaintiffs contend that the Defendants failed to consult the residents of the adjoining plots and to obtain the necessary approvals for change of user of their land from residential to educational purposes. The Plaintiffs attached copies of the documents evidencing the purchase of their houses from the National Social Security Fund together with correspondence exchanged with the Defendants in an attempt to resolve the matter. The Defendants contend that they obtained approvals from the Ministry of Education, Science and Technology to run both a nursery and primary school on their land. They also aver that they duly applied for change of user of the land and put up a signboard at the site besides distributing questionnaires on the impact of their proposed development. They also advertised the change of user in two daily newspapers. The Defendants contend that they complied with the requirements of the National Environment Management Authority and the Physical Planning Act. Parties made oral submissions. The Plaintiffs main concern is that the Defendants are not only constructing toilets which will be used by the students close to the Plaintiffs’ houses but that they face their kitchens. The use of the toilets by the students will result in odours that will make it uncomfortable for the Plaintiffs to live in and enjoy the use of their homes. The court allows prayer 2 of the application dated 6/6/2018 and directs parties to set down the case for hearing within six months so that all the issues raised in the suit can be determined at a full trial. The costs of the application shall be in the cause. Dated and delivered at Nairobi this 26th day of July 2018.

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