Nine Degrees Management Ltd v Rapid Oak Properties Ltd & 9 others

2. a. An order of mandamus directing the Respondents, whether by themselves, their employees, agents, or any other person acting under their instructions, to erect and maintain safety measures, including safety and scaolding netting and hoarding, and a security fence on the common boundary wall between the Petitioners' property, LR No NAIROBI/BLOCK 27/413, and the 1st Respondents' property, being LR No NAIROBI/BLOCK 27/416, [suit land] o Kindaruma Road, Dagoretti North Sub County, Nairobi. b. An order of mandatory injunction directing the Respondents, whether by themselves, their employees, agents, and any other person acting under their instructions, to repair the security fence on the common boundary wall between the two properties cited above. c. An order of mandatory injunction directing the Respondents, whether acting themselves, through their employees, agents, or any other person acting under their instructions, to paint the face of Nine Degrees Apartments facing the 1st Respondent's property and to restore it to its original state. d. Costs of the application The application is based on the grounds on the face of it and the supporting adavit sworn by Peter Onasis Ochieng Loch where he states as follows; a. The Petitioner is the registered owner of the property Nbi/Block 27/413, while the 1st Respondent owns Nbi/Block 27/416, which adjoins the aforementioned property and is currently being developed by the 1st Respondent [developer]. The development shares a common boundary wall with the Petitioners' property. b. The 1st Respondent has been faulted for failing to implement essential safety measures to safeguard the Petitioners' property from debris and dust generated by the ongoing construction activities. The on-site netting is in disrepair and insucient to contain dust; no wall barriers or scaolding netting have been erected around the construction site. Consequently, debris has contributed to environmental pollution and degradation, as well as structural wear and damage to the Petitioners' building, the shared boundary, and the electric fencing installed thereon. Moreover, construction materials placed in the parking area have rendered the space unusable and have exposed the Petitioners to potential liability for repairs to motor vehicles belonging to tenants and visitors, resulting from damage incurred. These conditions have been documented in the videos uploaded and annexed to the supporting adavit. c. The actions of the 1st Respondent are contrary to the provisions of the building code Nos 7(2), 12, 14, 33, and 52. d. The lack of safety measures and precautions at the designated boundary has resulted in a security breach, allowing intruders unrestricted access and leading to motor vehicle vandalism and other security-related issues. e. Although previous meetings and correspondence with the 1st Respondent have taken place, during which the 1st Respondent undertook to remedy the lapses, no progress has been made. f. Unless stopped by an order of this Court, the project shall proceed unrestrained, resulting in consequential environmental pollution and degradation, to the detriment of the Petitioners. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5409/eng@2026-09-09 2

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g. 3. No prejudice shall be suered by the Respondents should the application be granted. Conversely, if the application is denied, substantive prejudice will be inicted on the Petitioners' property and tenants. The application is opposed only by the 1st Respondent. In the Replying adavit sworn by Zamzam Rashid on 8/7/26, the deponent stated, in summary, as follows. a. The application is res judicata, as the Petitioner raised the same issues in the application dated 30/7/25, which was dismissed by this Court [dierently constituted] on 18/12/25. b. The site is equipped with adequate wall barriers, scaolding, netting, perimeter hoardings, debris and dust control measures, controlled access protocols, and additional safety measures implemented by the 1st Respondent. Together with ongoing supervision by qualied professionals, these measures render the Petitioners' allegations unsubstantiated. c. The construction project is being undertaken in compliance with all the requisite statutory approvals and licences issued by the relevant regulatory authorities. d. There are no independent reports supporting the alleged breach of the building code, nor has the Directorate of Occupational Health Services, National Environment and Management Authority [NEMA], or any other competent authority conrmed any alleged statutory violations. Equally, no structural report, quantity surveyor's assessment, or valuation report has been produced to demonstrate that the structural integrity of the Petitioners' building has been compromised. e. The electronic videos cited by the Applicant do not serve as substitutes for expert and technical reports or evidence, nor do they provide additional proof of actual damage or of its extent, if any. f. Furthermore, the Applicant has failed to demonstrate that the exceptional circumstances warrant the grant of a mandatory injunction. The orders sought are nal and substantially determine the issues in dispute summarily before the plenary hearing. g. The Applicant has not demonstrated any irreparable injury that cannot be remedied by damages. Consequently, the balance of convenience favours permitting the construction to continue, subject to periodic statutory and regulatory requirements to which the rst Respondent has committed, as evidenced by the approvals granted by the relevant regulatory authorities. 4. Save for the 1st Respondent, the other Respondents and the interested parties did not oppose the application. 5. On 7/08/2026, the parties elected to canvass the application through written submissions. The Court observed that, except for the Petitioner, the other parties failed to comply with the directions regarding the ling of written submissions. Nevertheless, I have considered the Applicant's submissions and wish to acknowledge counsel's thoroughness and diligence. Analysis and determination 6. The key issues for determination are; a. Whether the application is resjudicata b. Whether the application is merited. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5409/eng@2026-09-09 3

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On resjudicta 7. Black’s Law Dictionary, 10th Edition, denes “res judicata” as “An issue that has been denitely settled by judicial decision… The three essentials are; (1) an earlier decision on the issue, (2) a nal judgment on the merits, and (3) the involvement of the same parties, or parties in privity with the original parties…” 8. Section 7 Civil Procedure Act provides for the doctrine of res judicata as follows: “ No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them can claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and nally decided by such Court.” 9. The Civil Procedure Act outlines explanations with respect to the application of the res judicata rule. Explanations 1-6 are in the following terms:Explanation. — (1) The expression "former suit" means a suit which has been decided before the suit in question whether or not it was instituted before it.Explanation. — (2) For the purposes of this section, the competence of a Court shall be determined irrespective of any provision as to right of appeal from the decision of that Court.Explanation. — (3) The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.Explanation. — (4) Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.Explanation. — (5) Any relief claimed in a suit, which is not expressly granted by the decree shall, for the purposes of this section, be deemed to have been refused.Explanation. — (6) Where persons litigate bona de in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating. [emphasis mine] 10. Recently, the Supreme Court added its voice on the subject in the case of John Florence Maritime Services Ltd & Another – vs- Cabinet Secretary for Transport & Infrastructure & 3 others (2021) eKLR, where the Court armed the issue of res judicata in reference to constitutional Petitioners and stated that; “ We rearm our position as in the Muiri Coee case that the doctrine of res judicata is based on the principle of nality which is a matter of public policy. The principle of nality is one of the pillars upon which our judicial system is founded and the doctrine of res judicata prevents a multiplicity of suits, which would ordinarily clog the Courts, apart from occasioning unnecessary costs to the parties; and it ensures that litigation comes to an end, and the verdict duly translates into fruit for one party, and liability for another party, conclusively. If we were to nd that the doctrine does not apply to constitutional litigation, the doctrine may very well lose much of its legitimacy and validity. We say this in light of the fact that constitutional tenets permeate all litigation starting with the application of Article 159 of the Constitution in both civil and criminal litigation, and its application now embedded in all procedural statutes. Further Article 50 on right to fair hearing and Article 48 on access to justice are fundamental rights which every litigant is entitled to. Such a holding may very well lead to parties, that whenever they need to circumscribe the doctrine of res judicata, they only need to invoke some constitutional provision or other.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5409/eng@2026-09-09 4

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11. The compounding eect of the case law cited above is that Res judicata is a doctrine of substantive law, its essence being that once the legal rights of parties have been judicially determined, that determination stands as a conclusive statement as to those rights. 12. The learned authors of Mulla, Code of Civil Procedure, 18th Ed. 2012 have observed that the principle of res judicata, as a judicial device on the nality of Court decisions, is subject only to the special scenarios of fraud, mistake or lack of jurisdiction (p.293): “ The principle of nality or res judicata is a matter of public policy and is one of the pillars on which a judicial system is founded. Once a judgment becomes conclusive, the matters in issue covered thereby cannot be reopened unless fraud or mistake or lack of jurisdiction is cited to challenge it directly at a later stage. The principle is rooted to the rationale that issues decided may not be reopened and has little to do with the merit of the decision.” 13. In the case of Henderson v. Henderson (1843) 67 E.R. 313, the rationale of the doctrine of resjudicata was stated as follows: “ … where a given matter becomes the subject of litigation in, and adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward, as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a Judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time” [emphasis is mine]. 14. In essence, the doctrine expressly states that for a matter to be res judicata, the matters in issue must be similar to those previously in dispute between the same parties, and the same must have been determined on the merits by a Court of competent jurisdiction 15. The 1st Respondent has argued that the present application is subject to res judicata, as the same matter was litigated in the application of 30/7/25, and the Court subsequently issued a ruling on 18/12/25. I have had occasion to peruse the Court's decision and wish to reproduce it herein for clarity and emphasis. In paragraph 22, the Court declared as follows: “ The 1st interested party deposed that there were nettings in place. The Respondents said that they held a meeting with the Petitioner before the ling of this case to reinforce the nettings and repair the damage occasioned to the Petitioner's security wall. Therefore, it is my considered opinion that the probable loss complained of can be compensated in damages.” 16. The Applicant has not controverted the objection raised by the 1st Respondent. The objection has not been controverted in any further or supplementary adavit, nor in the written submissions; hence it appears to be uncontested. That said, the Court notes that the objection challenges its jurisdiction to hear and determine the application; for that reason, the Court will nevertheless determine it on its merits. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5409/eng@2026-09-09 5

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17. It is not in dispute that the subject matter herein concerns a construction dispute, with its attendant sub-issues regarding compliance with the regulations provided in law, as well as the approvals or permits issued by the regulatory agencies within the built and regulatory ecosystem. 18. The Applicant's grievance is that the developer has failed to implement appropriate safety measures, including perimeter hardening, scaolding netting, the erection of wall barriers, dust and debris containment or suppression, and controlled access to the construction site. 19. The developer, on the other hand, has refuted the allegations, calling for proof. 20. I have had occasion to peruse the application dated 30/7/25, in which the Applicant sought an interlocutory injunction restraining the Respondents from continuing the illegal construction and/ or interfering with the Applicant's quiet enjoyment of the suit property; the construction has been carried out in violation of the 3rd Interested Party's zoning requirements. 21. The current application seeks a mandatory injunction requiring the Respondents to erect and maintain safety measures, including scaolding, netting, and hoarding; to repair the security fence along the common boundary; and to paint the face of the Applicant's wall facing the developer's property. 22. From the above, the Court is satised that the issues in the application dated 30/7/25 and the current application are not similar. Without more, the Court did not determine the issue in its Ruling, and therefore the application is not res judicata. Whether the application is merited. 23. This Court is mandated under section 13 (7) (a) of the Environment and Land Court to issue interim or permanent preservative orders including injunctions. 24. It is trite law that unlike a temporary injunction, a mandatory injunction at an interlocutory stage must be proved on a higher standard than a temporary injunction. To succeed, the Applicant must meet the standard as stated by the Court of Appeal in Kenya Breweries Limited & another v Washington O. Okeyo [2002] KECA 284 (KLR). Thus:**** “ The test whether to grant a mandatory injunction or not is correctly stated in Vol. 24 Halsbury’s Laws of England 4th Edn. para 948 which reads:**** “ 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 plainti ........ a mandatory injunction will be granted on an interlocutory application" Also in Locabail International Finance Ltd. V. Agroexport and others [1986] 1 ALL ER 901 at pg. 901 it was stated:“ Amandatory 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 https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5409/eng@2026-09-09 6

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remedied or where the defendant had attempted to steal a march on the plainti. Moreover, 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 dierent and higher standard than was required for a prohibitory injunction.” 25. Taking the cue from the guidance set out in the precedent case and treatise above, the Court will analyse the application to conrm whether the Applicant has shown special circumstances militating in favour of the issuance of a mandatory injunction; and whether the Applicant's case is so clear, the circumstances so exceptional, and the required act so precise that the Court can safely compel performance before the dispute is nally tried. 26. In this matter, the 1st Respondent has denied the Applicants' allegations that it failed to implement appropriate safety and security measures during the execution of its development activities. The Respondent contends that it is now aected by dust, debris, security breaches, or damage to its boundary. The Court observes that the Applicant has not submitted any expert report to substantiate these allegations. Although the Court has been shown a photograph of netting on the wall, without an expert report it cannot determine whether the netting is inadequate or dilapidated. Furthermore, the Applicant presented a video as an annexure, which was inaccessible for viewing, and the issues remain highly contested. It is therefore prudent to address these matters during the hearing. 27. Furthermore, the Applicants sought the prayer in the petition, an acknowledgement of its permanent nature, and hence it can only be issued after hearing the matter. 28. In the end, the application is unmerited. It is dismissed with costs to the 1st Respondent. 29. Orders accordingly DELIVERED, DATED AND SIGNED AT NAIROBI THIS 9TH DAY OF SEPTEMBER, 2026 VIA MICROSOFT TEAMS. J. G. KEMEI JUDGE Delivered online in the presence of: 1. Mr Wakhisi for the Petitioner 2. Ms Aswani HB for Mr Kosu for the Respondents 3. N/A for the Interested Parties 4. C/A – Mr Amos https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5409/eng@2026-09-09 7

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