Nyokabi v Kali (Environment & Land Case E252 of 2024) [2025] KEELC 719 (KLR)

Analysis and Determination 4. From the Surveyor’s report, it is apparent that the Plaintifi has blocked the road reserve, which is a public utility thereby blocking vehicular access to the Defendant’s premises and denying the Defendant and his tenants access to his property. The Surveyor’s report contradicts the allegations in the Plaintifi’s application dated 20th June 2024. It agrees with the Defendant’s application. 5. Considering the principles for the grant of interlocutory injunctions, it is the Defendant who stands to stands to sufier irreparable injury as a result of denial of access to his property. The findings further demonstrates that the Defendant has a prima facie case; ‘a clear and unmistakable right that needs to be protected and which is directly threatened by an act sought to be restrained.’ 6. Consequently and having considered the application by the Plaintifi and the one by the Defendant, I disallow the Plaintifi’s application dated 20th June 2024. I will allow the Defendant’s application dated 9th July 2024 in order to allow him access to his property. 7. The Defendant’s second prayer is in the nature of a mandatory injunction which is granted only in rare cases where there are compelling circumstances and where the injury complained of is immediate and pressing and is likely to cause extreme hardship as set out in the case of Locabail International Finance Limited v Agro-Export (1988) 1 All ER 901, in the following words: “ A mandatory injunction ought not to be granted on an interlocutory application in the absence of special circumstances, and then only in clear cases either where the Court thinks that the matter ought to be decided at once or where the injunction was directed at a simple and summary act which could be easily remedied or where the defendant has attempted to steal a match on the Plaintifi. Moreover, before granting a mandatory 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 difierent and higher standard that was required for a prohibitory injunction.” 8. The Court of Appeal made a similar holding in the case of Kenya Breweries Limited & Another vs. Washingtone O. Okeyo Civil Appeal No. 332 of 2000 [2002] 1 EA 109 stating that “ 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. However if the case is clear and one which the Court thinks it ought to be decided at once, or if the act done is a simple and summary one which can be easily remedied, or if the defendant attempted to steal a march on the plaintifi, a mandatory injunction will be granted on an interlocutory application…A mandatory injunction ought not to be granted on an interlocutory application in the absence of special circumstances, and then only in clear cases either where the Court thought that the matter ought to be decided at once or where the injunction was directed at a simple and summary act which could be easily remedied or where the defendant had attempted to steal a march on the plaintifi.” [Emphasis added] 9. This is one such case in the court’s opinion that qualifies for a temporary mandatory injunction. 10. The upshot is that the Defendant’s application dated 9th July 2024 is hereby allowed in the following terms;a. Pending the hearing and determination of this suit, an order of interlocutory injunction is hereby issued restraining the Plaintifi from erecting any further or other structures heaping https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/719/eng@2025-02-20 2

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construction materials on the common road frontage/reserve or in any manner whatsoever from interfering with the common road frontage of land parcel No. Nrb/Block 82/6171. 11. b. Pending the hearing and determination of this suit, the Plaintifi is ordered to remove metallic posts and curb-stones erected on the common road frontage/reserve and the heaps of construction materials placed on the common road frontage/reserve in front of land parcel no. Nrb/Block 82/6171. c. The Defendant shall have the costs of both applications. For the avoidance of any doubts, the Plaintifi’s application dated June 20, 2024 is dismissed It is so ordered. DATED SIGNED AND DELIVERED AT KAJIADO VIRTUALLY THIS 20TH DAY OF FEBRUARY 2025 M.D. MWANGI JUDGE In the virtual presence of: N/A by the Parties Court assistant: Mpoye M.D. MWANGI JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/719/eng@2025-02-20 3

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