Cheres & 4 others v Rodol Homes Ltd & another

2. The Application is premised on the grounds disclosed therein and echoed in the supporting adavit of Reuben Kipchirchir Cheres sworn on 10/6/2026. 3. The deponent avers that he is the registered owner and resident of House No. 1 on the suit land within Lenana Court, Kilimani. That the 2nd - 4th Applicants are property owners therein, and the 5th Applicant owns LR No. 209/368/17 comprising residential apartments neighbouring the suit land. 4. It is averred that the 1st Respondent is unlawfully erecting an illegal structure on the suit land, in breach of Section 24 of the Physical and Land Use Planning Regulations, 2021. 5. The illegal structure lacks proper safety measures and structural stability. Debris and loose construction materials from the development are falling onto the apartments, breaking roof tiles and causing rainwater leakage, rendering the Applicants' properties uninhabitable and unsafe; as a result, tenants have vacated the premises. The Applicants have suered a loss of rental income and will continue to do so until the nuisance is abated. 6. Furthermore, during the course of construction, the 1st Respondent failed, refused and neglected to comply with the construction rules and regulations regarding building setbacks. As a result, the development obstructs and interferes with natural light, leading to health hazards, loss of quiet enjoyment, and depreciation in the value of their properties. 7. That the 1st Respondent failed to take adequate safety and precautionary measures, resulting in the collapse of the perimeter wall separating the two properties. That the Applicants' homes are now exposed to structural damage and the risk of further collapse. 8. It was further averred that despite the joint meeting in November 2025, at which it was agreed that the 1st Respondent would halt construction and implement adequate safety measures, the 1st Respondent has taken no steps. The Applicants reported the matter to the 2nd Respondent and the National Construction Authority for redress, but both have unfortunately refused to take any action to remedy the situation. The Court was urged to grant the prayers sought to avert further damage and prejudice to the Applicants. 9. In opposing the application, Hassan Abdi Mohammed, a director of the 1st Respondent, deponed as follows; a. the allegation of encroachment is untrue, misleading and in any event unsupported by any survey report. b. This Court has no jurisdiction to determine the issue of encroachment as it is in the domain of the Land Registrar in line with the provisions of Section 18(2) of the Land Registration Act. c. The 1st Respondent’s development is lawful, having obtained all the necessary approvals and permits, to wit: certicate of compliance dated 28/1/25 issued by the National Construction Authority [NCA]; notication approval for development dated 20/9/24 issued by the Nairobi City County; and Environmental Impact Assessment License dated 22/1/25 issued by the National Environment Management Authority [NEMA]. d. The construction works have been carried out professionally and diligently in compliance with the approved structural and environmental standards. The 1st Respondent denies any liability in respect of any damage to the property and puts the Applicants to strict proof. e. The structural report commissioned by the 1st Respondent conrms that the development has been carried out in full compliance with the building regulations and standards, and that https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5421/eng@2026-09-15 2

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the construction is structurally sound and poses no danger, risk, or threat to the Applicants' properties or to the adjoining developments. The Applicants' allegations that the construction is unsafe are therefore unfounded. 10. f. That the 1st Respondent is willing to repair or replace any damage to the premises using materials of equivalent quality, provided that it is granted access to conduct an independent assessment of any alleged damage. g. The project is on the 10th oor, and any order stopping the construction at this advanced stage would cause immense prejudice to the 1st Respondent and the third-party purchasers who have acquired apartments o plan, whose legitimate expectations are tied to the timely completion of the development. h. The Court was invited to consider the strict contractual timelines for the project, as any delay would result in nancial losses and damages. The Applicants led a further adavit deponed by Reuben Kipchirchir Cheres dated 17/8/26 in which he deposed as follows; a. In respect of the encroachment, he stated that the photographs annexed explicitly show the collapsed walls and the damage to the roofs of their houses. b. Following the site visit by the ocers of the 2nd Respondent on 12/5/2025, the ocers found the collapsed walls, which led to the closure of the 1st Respondent's site. See “RKS 1a”. c. The ocers from the National Construction Authority visited the site on 17/9/2025 and ordered the works to be suspended. d. The dispute herein is not a boundary dispute but one concerning trespass, negligence, nuisance, and unlawful interference with the property of the premises arising from the 1st Respondent's development on the suit land. There is therefore no boundary dispute to which the mechanisms provided under Section 18(2) of the Land Registration Act apply. e. With respect to the approvals referred to by the 1st Respondent, the deponent states that the certicate of compliance issued on 28/1/25 was suspended on 17/9/25 for failure to comply with the conditions, leading to the collapse of the wall and causing damage to a number of services to the Applicants' properties. f. The 2nd Respondent closed the site on 12/5/25 for failure to comply with the provisions of conditions k and t of the approval issued by the 2nd Respondent. g. NEMA visited the site on 11/8/26 and noted that the construction had extended beyond the approved plot boundaries. h. NEMA issued an environmental restoration order directing the 1st Respondent to immediately cease all construction and related activities on the site and any works extending onto the neighbouring parcels of land being LR No 209/368/18 and LR No 209/368/17. i. j. In view of the stoppage and the restoration orders cited above, the alleged independent structural report contradicts the reports of the NEMA and NCA. The 1st Respondent's willingness to repair and replace any damage to the Applicants' properties constitutes an admission of the Applicants' claim. This is in furtherance of the admission of the 1st Respondent in a joint meeting held on 10/7/26 at Lenana Court. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5421/eng@2026-09-15 3

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11. On 13/07/2026, the parties agreed to canvass the application through written submissions. The Court directed the parties to le submissions within 30 days, specically by the close of business on 17/08/2026. Notwithstanding these directions, only the 1st Respondent complied on 11/09/2026. I have reviewed and considered the aforementioned submissions in the ruling. Analysis and determination 12. Having considered the application, the rival responses, and the written submissions, the key issue for determination is whether the application is merited. 13. The guiding principles for the grant of orders of temporary injunction are that the Plainti has to satisfy the triple requirements; to a), establish its case only at a prima facie level, b), demonstrate irreparable injury if a temporary injunction is not granted and c), allay any doubts as to b, by showing that the balance of convenience is in its favour. See Giella v Cassman Brown (1973) EA 358. 14. The standard of proving a prima facie case was set out by the Court of Appeal in the case of Mrao Ltd Vs. First American Bank of Kenya Ltd (2003) eKLR as follows; “ The party on whom the burden of proving a prima facie case lies must show a clear and unmistakable right to be protected which is directly threatened by an act sought to be restrained, the invasion of the right has to be material and substantive and there must be an urgent necessity to prevent the irreparable damage that may result from the invasion. We reiterate that, in considering whether a prima facie case has been established, the Court does not hold a mini trial and must not closely examine the merits of the case. All the Court must see is that, on its face, the person applying for an injunction has a right that has been, or is threatened with, violation. Positions of the parties are not to be proved in such a manner as to give a nal decision in discharging a prima facie case. The Plainti need not establish title. It is enough if he shows that he has a fair and bona de question to raise as to the existence of the right he alleges. The standard of proof of that prima facie case is on a balance or, as otherwise put, on a preponderance of probabilities. This means no more than that the Court takes the view that on the face of it the Applicant’s case is more likely than not to ultimately succeed.” 15. Additionally, in Stek Cosmetics Limited v. Family Bank Limited & Another [2020] eKLR, it was held that the Plainti bears the burden of establishing a prima facie case in its favour. The Applicants must show that the Respondents have violated, or are likely to violate, their rights, thereby shifting the burden to the Respondents to explain or rebut the Applicants' claim. 16. It is the Applicants' case that their properties are adjacent to the suit land, on which the 1st Respondent is constructing a 14th-oor development. Their main grievance is that the development has encroached upon their boundary wall, causing it to collapse; debris and falling items have damaged their roofs, leading to leakages; the dust created by the construction is causing an unhealthy environment; the construction is unlawful for failure to comply with the licences and approvals previously obtained by the developer; and loss of income as a result of tenants vacating the premises. 17. The 1st Respondent opposed the application on the grounds that they have obtained all the licences and approvals; their construction is being carried out in a professional manner; the development is being supervised by professionals; and the structural report attests that the structure is sound and its integrity is beyond question. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5421/eng@2026-09-15 4

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18. In a prima facie case, the burden of proof lies with the Applicants. In line with this principle, the question is whether the Applicants have demonstrated a clear and unmistakable right to protection that the act sought to be restrained directly threatens. 19. In addressing this issue, the Court will consider the adavit evidence adduced by the Applicants. Firstly, RCK1 – the photographs show the collapsed wall and broken tiles. 20. Secondly, the report dated 30/9/2026 by NEMA explains the on-site ndings in detail as follows; the structure under construction has been built directly against and on the perimeter wall of the neighbouring properties, with debris-holding structures and the retaining net located within the adjacent plots; the perimeter wall, water and sewer systems have collapsed; repairs carried out by the developer were substandard; falling debris and construction materials have broken roof tiles, leading to leakages; the construction works have caused severe environmental and safety hazards. 21. Thirdly the photographs annexed to the NEMA report are similar to the photographs adduced by the Applicants. 22. Fourthly, the Director General of NEMA, vide its letter dated 11/8/26 addressed to the 1st Respondent, agreed with the above ndings and issued a restoration order to the 1st Respondent. 23. Since the Court is not undertaking a trial at this stage to determine the extent of the ndings, it suces to note that the reports validate a nding that the Applicants, without more, have established a prima facie case. 24. On irreparable harm, it is trite that the burden is on the Applicants to demonstrate that unless the injunction is granted, they will suer irreparable injury. In the Mrao case (supra), the Learned Judges added; “ Temporary injunction should never issue when an action for an award of damages would adequately compensate the injuries threatened or caused. It must also be remembered that it is a serious thing to restrain a property owner over what is undeniably his unless there are justiable grounds to do so……it must always be borne in mind that the very foundation of the jurisdiction to issue orders of injunction vests in the probability of irreparable injury, the inadequacy of pecuniary compensation and the prevention of the multiplicity of suits and where facts are not shown to bring the case within these conditions the relief of injunction is not available.” 25. In the case of Nguruman Limited Vs. Jan Bonde Nielsen & 2 Others CA No.77 of 2012 (2014) eKLR the Court of Appeal had this to say regarding irreparable loss; “ On the second factor, that the Plainti must establish that he “might otherwise” suer irreparable injury which cannot be adequately remedied by damages in the absence of an injunction, is a threshold requirement and the burden is on the Plainti to demonstrate, prima face, the nature and extent of the injury. Speculative injury will not do; there must be more than an unfounded fear or apprehension on the part of the Applicant. The equitable remedy of temporary injunction is issued solely to prevent grave and irreparable injury; that is injury that is actual, substantial and demonstrable; injury that cannot “adequately” be compensated by an award of damages. An injury is irreparable where there is no standard by which their amount can be measured with reasonable accuracy or the injury or harm is such a nature that monetary compensation, of whatever amount, will never be adequate remedy ...” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5421/eng@2026-09-15 5

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26. Regarding irreparable harm, the Applicants have provided a detailed account of the consequences arising from the damaged wall, including insecurity, sewer and water leaks, and tenants vacating the premises. That their rights to the quiet enjoyment of their properties have been and continue to be violated. The National Environment Management Authority (NEMA) determined that the damage has compromised the safety of the Applicants' properties and jeopardised the integrity of a clean and healthy environment. Although the 1st Respondent has committed to repairing the damage, NEMA's ndings indicate that previous repairs were substandard. 27. In the overall, the damages enumerated by the Applicants are damages that can be ameliorated through monetary compensation. As stated before, it is premature at this stage to know the extent of the injury, save to note that continued construction without rectifying the damages will eventually change the character and use of the neighbouring properties, to the detriment of the property rights of the owners. 28. Where does the balance of convenience lie? In Pius Kipchirchir Kogo v. Frank Kimeli Tenai (2018) eKLR the concept of balance of convenience was dened as: ‘The meaning of balance of convenience will favour of the Plainti' is that if an injunction is not granted and the suit is ultimately decided in favour of the Plaintis, the inconvenience caused to the Plainti would be greater than that which would be caused to the Defendants if an injunction is granted but the suit is ultimately dismissed. Although it is called balance of convenience it is really the balance of inconvenience and it is for the Plaintis to show that the inconvenience caused to them will be greater than that which may be caused to the Defendants. Should the inconvenience be equal, it is the Plaintis who will suer. In other words, the Plaintis have to show that the comparative mischief from the inconvenience which is likely to arise from withholding the injunction will be greater than that which is likely to arise from granting it.” 29. The 1st Respondent has averred that the construction is dependent on timely completion, and that any delay arising from the stoppage of the project will adversely aect third-party purchasers whose proprietorship is pegged on the timely completion of the development, and that any delay would cause greater nancial loss to all involved. 30. It is not contested that the NEMA and NCA permits have been suspended. Moreover, it is unlawful and against public policy to commence construction without the necessary permits and approvals. It is trite that the Court should choose the course of action that appears to pose the least risk of injustice if its decision to deny the injunction proves incorrect. To avoid endorsing an illegality, the Court determines that granting a temporary injunction is feasible under the circumstances. 31. The Court is therefore called upon to weigh the project's delay against the developer's continued construction in the face of a restoration order, and the rights of the Applicants and the Court nds that the balance of convenience favours preserving the status quo, without permitting the 1st Respondent to continue construction until the compliance issues are addressed. Final orders for disposal 32. In the end, I nd that the application is merited. It is allowed as follows; a. A temporary injunction be and is hereby granted stopping the construction of the proposed residential blocks on LR No. NAIROBI/BLOCK27/259, [suit land] formerly known as LR 209/368/10, pending full compliance with the terms and conditions of the licences and https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5421/eng@2026-09-15 6

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permits issued by the NCA, NEMA and the 2nd Respondent by the 1st Respondent and/or hearing and determination of the suit, whichever is earlier. b. 33. The 1st Respondent shall meet the costs of the application Orders accordingly DELIVERED, DATED AND SIGNED AT NAIROBI THIS 15TH DAY OF SEPTEMBER 2026 VIA MICROSOFT TEAMS. J. G. KEMEI JUDGE Delivered Online in the presence of: PARA 1. Mr. Kiptoo for 1st – 5th Plaintis PARA 2. Mr. Adano H/B for Mr. Mubea for the 1st Defendant PARA 3. N/A for the 2nd Defendant PARA 4. CA- Mr Amos ELC.E256.2026-NBI 4R of 4 https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5421/eng@2026-09-15 7

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