Mahindi v Ndichu & 4 others

2. 3. b. THAT pending the hearing and determination of the Suit herein or until further Orders, this Honourable Court be pleased to issue an Order of temporary injunction to restrain the Defendants, whether acting by themselves, or through servants, agents or anyone claiming under them from excavating, constructing, building or undertaking any other or further development activities on the property known as Dagoretti/ Mutuini/1808 or the access road thereof. c. THAT the Honourable Court be pleased to issue an Order of Interim Injunction restraining the Defendants, whether acting by themselves or d. THAT costs of the Application be borne by the Defendants. The application is supported by the grounds annexed thereto and the adavit of the Plainti sworn on even date. The deponent states thus; a. The Plainti is the registered owner of the Dagoreti/Mutuini /1108, located in Karinde, Dagoreti sub-county, within Nairobi City County. b. The 1st Defendant owns the adjacent property, Dahorti/Mutuini /1808, which is fully developed with a residential apartment block and a bungalow in which he resides. c. The 1st and 2nd Defendants have excavated on the land intended to serve as a road access measuring 9 m by 60 m, which connects to the main road, and have failed and/or neglected to provide any permits, approvals, development permissions, and licences from the 3rd Defendant, NEMA and NCA, respectively. d. The works on the site are in breach of the setback provisions set out in the Building Code, to the extent that the Plainti's wall and the apartment block may collapse. e. The Defendants commenced excavation works on the suit land without prior notice to the Plainti and the neighbours, and in breach of the law. f. Inquiries regarding the approvals were met with no response, leading to the ling of the current suit. g. The development site lacks any signage in the vicinity that would inform the public about the developer, owner, or proponent, as well as details regarding the nature of the proposed development on such a narrow strip of land, and whether any approvals have been issued, including the relevant agencies responsible. h. Inter alia, the development will severely impede the habitability of the Plaintis' property and, accordingly, the illegal construction activities will adversely aect the health and living conditions of the Plaintis' property. When the matter was placed before this Court on 13/4/26, the parties requested time to discuss a compromise of the application, which the Court granted. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5403/eng@2026-09-09 2

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4. On 26/5/2026, the parties presented a consent, which, upon perusal by the Court, appeared to make declarations regarding the alleged illegalities in the dispute. In the view of the Court, these matters can only be determined after a full hearing. The Court therefore, on that ground, rejected the consent and directed the parties to le their written submissions thereon. 5. At the time of writing this ruling, none of the parties, including the Plainti, have led any written submissions. That said, the Court nds that the application is not contested but will nevertheless determine it on its merits. Analysis and determination 6. Having considered the application, the grounds upon which it is premised, and the pleadings, where applicable, the key issue is whether the application is merited. 7. The purpose of a temporary injunction as stated in Order 40 Rule 1 of the Civil Procedure Rules, 2010 is to stay and prevent the wasting, damaging, alienation, the sale, removal or disposition of the suit property. The Order provides that; “ 1. Where in any suit it is proved by adavit or otherwisea. That any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree, or b) That the Respondents threatens or intends to remove or dispose of his property in circumstances aording reasonable probability that the Plainti will or may be obstructed or delayed in the execution of any decree that may be passed against the Respondents in the suit, The Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property as the Court thinks t until the disposal of the suit or until further orders”. 8. 9. The principles that guide the Court in determining an application of such nature are found in the celebrated case of Giella vs Cassman Brown & Co Ltd [1973] EA 358 as follows: a. First, the Applicant must show a prima facie case with a probability of success. b. Secondly, an interlocutory injunction will not normally be granted unless the Applicant might otherwise suer irreparable harm which would not be adequately compensated by an award of damages. c. Thirdly, if the Court is in doubt, it will decide an application on a balance of convenience. Has the Applicant established a prima facie case with a probability of success? A prima facie case was dened by the Court of Appeal in Mrao Ltd vs First American Bank of Kenya Ltd & 2 Others (2003) eKLR as follows: “ a prima facie case in a civil application includes but is not conned to a genuine and arguable case”. It is a case which, on the material presented to the Court, a tribunal properly directing https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5403/eng@2026-09-09 3

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itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.” 10. It is not in dispute that the Plaintis' and the 1st and 2nd Defendants' lands are adjacent, as shown on the plan annexed to the application. It is also not in dispute that there is a construction on the strip of land, as shown by the excavation depicted in the photographs annexed to the application. 11. The Plainti's averments are that the development was carried out without any permits, approvals and licences under the Physical and Land Use Planning Act [PLUPA] Act, National Environment Management Authority [NEMA] and National Construction Authority [NCA]. 12. In the absence of any admission that the 2nd Defendant sought and obtained the appropriate approvals, the Court nds that the Plainti has established a prima facie case. 13. On the issue of irreparable harm, the Plainti has led evidence that the boundary wall and the apartments have been aected by the excavation and that the building is in violation of the setback provisions set out in the building code. This shows that unless the Court issues the interim injunction, the likelihood of aggravated damage is high. 14. On where the balance of probability lies, the Court nds that the balance is in favour of granting the injunction pending the hearing and determination of the suit. 15. In the end I allow the application as follows; 16. a. THAT pending the hearing and determination of the Suit herein or until further Orders, this Honourable Court issues an Order of temporary injunction to restrain the Defendants, whether acting by themselves, or through servants, agents or anyone claiming under them from excavating, constructing, building or undertaking any other or further development activities on the property known as Dagoretti/Mutuini/1808 or the access road thereof. This order is limited to 6 months from the date of this Ruling within which the Plainti is expected to have prosecuted the matter to it logical conclusion. b. THAT the Honourable Court issues an Order of Interim Injunction restraining the Defendants, whether acting by themselves or anyone claiming under them from excavating, constructing, building or undertaking any other or further development activities on the suit land or access thereof. c. Costs shall be borne by the 2nd Defendant/respondent in favour of the Plainti. Orders accordingly DELIVERED, DATED AND SIGNED AT NAIROBI THIS 9th DAY OF SEPTEMBER 2026 VIA MICROSOFT TEAMS. J. G. KEMEI JUDGE Delivered virtually in the presence of: Mr Masila for the Plainti Mr Ochieng H/B for Ms. Njeri for the 1st Defendant Mr. Thuo for the 2nd Defendant Mr. Otieno for the 3rd Defendant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5403/eng@2026-09-09 4

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CA- Mr Amos https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5403/eng@2026-09-09 5

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