Ooko & another v Mutuku & 3 others

2. iv. That pending the hearing and determination of this suit, an injunction be issued restraining the Defendant, whether by himself, agents, employees, workers, contractors and/or servants, from constructing and/or continuing with construction work on L.R No. Nairobi Block 82/5667. v. That the costs of this application be provided for. The application is based on the grounds appearing on its face together with the supporting adavit of Daniel Auma Ooko, sworn on even date. The Applicant’s Case 3. The deponent averred that he was authorised by the 2nd Plainti and other landlords of Harambee Sacco B Estate to swear the adavit on their behalf. He further averred that the Defendant owns the suit property and is undertaking construction work in contravention of the applicable controlled development plan, which permits the development of a three-bedroom apartment, whereas the Defendant is constructing a four-storey at. 4. He averred that the Defendant has not obtained the necessary licences from the Interested Parties for the development of the suit property. He explained that, despite the Interested Parties having directed the Defendant to cease construction, the Defendant continued with the construction in deance of the said directive. 5. In conclusion, he urged the Court to allow the application as prayed. The Respondent's Case 6. The Respondent led a replying adavit dated 6th October 2026 in opposition to the application. He averred that he purchased parcel No. NAIROBI/BLOCK 82/5667 from Harambee Sacco B in October 2019. He further averred that the management of Harambee Sacco did not issue him with development plans for the use of his parcel of land. 7. He further averred that after he informed the ocials of Harambee Sacco B of his intention to develop his plot, the ocials began to extend the main gate towards his plot. He averred that after he completed constructing the ground oor of his house, the 1st and 2nd Plaintis organised a meeting on 19th June 2025 with three ocials from the Nairobi County Enforcement Department, himself, and his site engineer to deliberate on the construction of the landing steps from his house and the balcony, since the Plaintis had interfered with his parcel by extending the main gate beyond the road to his plot. 8. He asserted that during the meeting, the 1st Plainti's suggestion that he put up his balcony on the 2nd oor was agreed upon, as the 1st Plainti had already constructed a gate at the entrance to the estate’s access road which he contended encroached onto his parcel of land. 9. He further asserted that he was not issued with the approved and gazetted zoning plans when he purchased his land and added that the alleged controlled development plan does not exist. He relied on the Court of Appeal Judgment in Civil Appeal No. E160 of 2025, arguing that the 2004 Zoning Regulation for the County Government of Nairobi is outdated, as it was based on the repealed Physical Planning Act 1996. 10. He contended that there is no regulation in Harambee Sacco B concerning the height of the building, arguing that the 1st Plainti’s house was of the same height as his house. He further contended that almost all buildings in Harambee Sacco B are four storeys and questioned why his development was singled out. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6006/eng@2026-09-25 2

page 2 of 6

11. He denied the allegations that the balcony had extended onto the estate's existing access road. He further denied encroaching on the road and contended that the survey report led by the 1st Plainti conrmed that the building under construction on parcel No. 5657 had not encroached on the neighbouring parcel. 12. In a supplementary adavit dated 29th October 2025, the Respondent produced photographs which he contended demonstrated that the house was complete, had two gates and that the balcony was more than ve meters above the access road. In conclusion, he urged the Court to dismiss the application with costs. 13. The application was canvassed by way of written submissions. The Plainti ’s Submissions 14. The Plaintis led their submissions dated 23rd February 2026. 15. On behalf of the Plaintis, Counsel outlined the following issues for the Court’s determination: a) Whether the Defendant’s development is unlawful for want of statutory approvals; b) Whether the Defendant has encroached beyond the demarcated beacons; c) Whether the Plaintis have satised the threshold for declaratory permanent and mandatory injunctive relief. 16. Regarding the rst issue, Counsel submitted that the Defendant acknowledged he had commenced construction of a four-storey building, had received an Enforcement Notice directing him to stop the works, but had nevertheless continued with the construction. 17. Counsel further submitted that the Plainti's surveyor's report established that the Defendant’s balcony extends one metre into the existing access road, thereby constituting an unlawful obstruction. Counsel contended that unauthorized and uncontrolled construction undermines constitutional order and planning integrity. To support this argument, reliance was placed on Simon Ngao Mbithi v Daniel K Ngomo (2020) KEELC 934 (KLR). 18. Regarding the third issue, Counsel submitted that the Plaintis have met the threshold for the grant of declaratory, permanent and mandatory injunctive relief. To support this point, reliance was placed on Nguruman Limited v Jan Bonde Mielsen & 2 others (2014) eKLR Kiburu v Gathungu & 5 others (Environment and Land Case E268 of 2022) (2025) KEELC 7105 (KLR), Mwongera & 2 others (Suing as Chairman, Treasurer & Secretary of Karen Langata District Association) v National Environment Management Authority (NEMA) & another: Taaleri Private Equity Funds (Interested Party)(2024) KEELC 1655 (KLR). 19. Counsel submitted that the Defendant’s reference to the suit property as NAIROBI/BLOCK 82/566 constitutes a material inconsistency, which undermined his credibility and cast doubt on the validity of his ownership documents. 20. Counsel further submitted that the Defendant’s claims that Harambee Sacco B never issued development guidelines or plans, together with his admission, contradict his assertion that he commenced development before obtaining county approvals. 21. In conclusion, Counsel urged the Court to grant the orders sought. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6006/eng@2026-09-25 3

page 3 of 6

The Defendant/respondent’s Submissions 22. The Respondent led his submissions dated 16th March 2026. 23. On behalf of the Respondents, Counsel submitted that the Plainti has not satised the conditions set out in Giella v Casman Brown and Co Ltd (1973) EA. Counsel further submitted that the County Government granted Nairobi Landlords an opportunity to regularize their buildings where such buildings had not complied with the applicable requirements. 24. Regarding the rst limb, namely whether a prima facie case had been established, Counsel submitted that the Defendant had not infringed the Plaintis' right by constructing on the suit property. Counsel contended that the Plaintis' complaint was essentially that the Defendant had failed to comply with the planning permission issued by the 1st Interested Party. 25. Regarding irreparable injury, Counsel submitted that the Plaintis have not demonstrated any irreparable harm that cannot be compensated by damages if an injunction is not granted. Counsel further submitted that the property is complete and fully occupied, and that neither the Plaintis nor other members of the estate have demonstrated any actual injury. 26. Counsel argued that by seeking nal orders, the Plaintis had abandoned the present application. 27. In conclusion, Counsel urged the Court to dismiss the application, with costs. Analysis And Determination 28. Having considered the application, the respective adavits and rival submissions, the only issue for determination is whether the Applicants have met the threshold for the grant of an interlocutory injunction. 29. The law governing applications for injunctions is set out in Order 40 Rule 1 of the Civil Procedure Rules, 2010 as follows: “ Where in any suit it is proved by adavit or otherwise– (a) 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 defendant 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 if any decree that may be passed against the defendant 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.” 30. The principles for granting an injunction were set out in the celebrated case of Giella vs Cassman Brown & Co. Ltd. 1973 EA 358 as follows: a) Firstly, the Applicant must show a prima facie case with a probability of success. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6006/eng@2026-09-25 4

page 4 of 6

31. 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. d) Thirdly, if the court is in doubt, it will decide an application on a balance of convenience. The rst issue for determination is whether the Applicants have established a prima facie case with a probability of success. In Mrao Ltd v First American Bank of Kenya and 2 others, (2003) KLR 125, the Court of Appeal dened a prima facie case 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 itself will conclude there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter” 32. The Applicants contend that the Defendant’s development is contrary to the applicable development controls, was undertaken without the requisite approvals and encroaches onto an access road. They relied on a surveyor’s report which they contend establishes that the balcony extends one metre into the existing access road. 33. The Defendant disputes those allegations. He challenges the existence and applicability of the alleged controlled development plan, maintains that Harambee Sacco B did not supply him with the development plans, and disputes the alleged encroachment. He also raised issues regarding the applicable zoning framework. 34. It is evident that there are contested questions concerning the applicable development controls, the statutory approvals obtained by the Defendant and whether there has been encroachment onto the access road. 35. At this interlocutory stage, the Court is not called upon to nally determine those questions. The Court is not required to make denitive ndings on contested matters central to the suit. The existence, applicability, and eect of the alleged controlled development plan; the approvals obtained by the Defendant; the eect of the Enforcement notice; and the alleged encroachment are matters that require determination upon a full hearing of the evidence. 36. Based on the evidence presented, I nd that the Applicants have raised an arguable case concerning the legality of the development and the alleged encroachment. I therefore nd that the Applicants have established a prima facie case with a probability of success. 37. Regarding the second limb, the Applicants must demonstrate that they will suer irreparable injury that cannot be compensated by damages. The Applicants' complaint concerns alleged non-compliance with planning and alleged encroachment onto an access road. The Defendant asserts that the building is complete and occupied. In this regard, the Defendant produced photographs to support this position. While these allegations raise serious questions for determination, the Applicants have not placed before the court sucient evidence to demonstrate that the injury complained of cannot be adequately compensated by damages. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6006/eng@2026-09-25 5

page 5 of 6

38. The conditions outlined in Giella v Cassman Brown Case (Supra) are to be considered sequentially. In so nding, I am persuaded by the holding in the case of Nguruman Limited Vs Jan Bonde Nielsen & 2 Others [2014] eKLR where the Court of Appeal stated as follows: “ …these are the three pillars on which rest the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially… if the applicant establishes a prima facie case that alone is not sucient basis to grant an interlocutory injunction, the court must further be satised that the injury the respondent will suer, in the event the injunction is not granted will be irreparable. In other words, if damages recoverable in law are an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration”. 39. Having found that the Applicants have not satised the second limb of the test, the application for interlocutory injunction cannot succeed. It will be immaterial to consider the other limb for the grant of a temporary injunction. 40. In Commercial Finance Co. Ltd vs Afraha Education Society & Others C A Civil Appeal No. 142 of 1999, the court held that: “ ……the judge should address himself sequentially on the conditions for granting an injunction instead of proceeding straight away to address himself on the third condition because where the Applicant has no registered interest in the land comprised in the title dispute and thereof has not demonstrated that it has a prima facie case with a probability of success, no interlocutory injunction would be available.” 41. In the result, I nd that the application dated 11th September 2025 is without merit and is hereby dismissed with costs. RULING SIGNED, DATED, AND DELIVERED VIA MICROSOFT TEAMS THIS 25TH DAY OF SEPTEMBER, 2026. ……………………………………. HON. T. MURIGI JUDGE In The Presence Of: The absence of the parties Vena – Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6006/eng@2026-09-25 6

page 6 of 6