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ELCDismissedNot stated in the judgment· [2016] KEELC 62 (KLR)

Kipkorir Menjo & 4 others v Prayosha Ventures Ltd & 4 others [2016] KEELC 62 (KLR)

Environment and Land Court
14 December 2016
2,433 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~10 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Eldoret refused to stop a private sewer project because the residents brought no documents proving they lived in or owned property in the area.

What this practically means

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Executive summary

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The plaintiffs, suing on their own behalf and on behalf of residents of Racecourse Ward, Kapsaret Constituency, Uasin Gishu County, sought a mandatory injunction compelling the defendants to include them in a private sewer line being constructed by the 1st and 2nd defendants from parcel Pioneer/Langas Block 1 to the Uasin Gishu sewer deposit dam, an order for fresh site plans and approvals, an order compelling the 3rd and 5th defendants to conduct inclusive public participation meetings, a permanent injunction against further development of the sewer line, and general damages. They complained of discrimination, absence of public participation and unconstitutionality of the licensing by the 3rd, 4th and 5th defendants. The application for temporary injunction was supported by an affidavit of Isaac Laboso, a resident since 1994. The 2nd defendant responded that it had duly applied for and obtained a licence from ELDOWAS (the 4th defendant) in April-May 2016, engaged a licensed contractor, and had completed 1.2 of 1.8 kilometres of the pump sewer line, and that plaintiffs had violently disrupted construction. The court, Antony Ombwayo J, applied the injunction principles. It held the plaintiffs failed to establish a prima facie case, having produced no documentary proof of residence, land ownership, rate or rent payment, septic tank costs, or any application or communication to the licensing defendants; their discrimination claim was unproved while the 2nd defendant had proved its licence. On irreparable loss, the plaintiffs paradoxically sought to benefit from the project they opposed, and the benefit could be secured progressively. The balance of convenience favoured the defendants given their heavy investment in over 300 housing units. The application was dismissed with costs in the cause.

Key legal issues

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01

Prima facie case

Holding

The plaintiffs failed to establish a prima facie case as they produced no evidence of residency, land ownership, rate/rent payment, septic tank construction or any application or communication to the licensing defendants for sewerage services.

Reasoning

The court found the plaintiffs offered no documentary proof of residence or interest in the Racecourse area, no evidence of septic tank expenditure, and no demand or communication with the 3rd to 5th defendants. Their discrimination claim was likewise unproved. By contrast, the 2nd defendant demonstrated that it applied for and obtained a licence from the 4th defendant, which the plaintiffs never sought or obtained.

p. 4
02

Irreparable loss

Holding

No irreparable loss was demonstrated because the plaintiffs actually sought to benefit from the very sewer project they opposed, and that benefit can be realised progressively at the conclusion of the suit.

Reasoning

The court observed the inconsistency in the plaintiffs' position: they opposed the sewer line while simultaneously seeking mandatory inclusion in it. The 3rd to 5th defendants could later be ordered to expand the project or extend services to the plaintiffs without interfering with the defendants' project, so damages or future orders would suffice.

p. 4
03

Balance of convenience

Holding

The balance of convenience tilted in favour of the defendants, who had heavily invested in the housing project and stood to suffer greater harm from an injunction.

Reasoning

The 2nd defendant had constructed over 300 apartments and maisonettes, largely sold, with completion set for 1st July 2016. Stopping the sewer works would expose it to serious financial losses and multiplicity of suits by purchasers, whereas the plaintiffs' access to sewerage could be secured later without halting the project.

p. 4

Legal principles established

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  • A party claiming residency-based remedies must adduce documentary proof of ownership, occupancy or payment in the area (land ownership, rates or rent receipts)
  • Where the benefit sought can be secured progressively, no irreparable loss is demonstrated for purposes of an injunction

Court orders

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  1. 1.The application for temporary injunction is dismissed with costs in the cause
Jurisdiction invoked
Not expressly stated; original civil jurisdiction over land and environmental claims and interlocutory injunctive relief

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kipkorir Menjo & 4 others v Prayosha Ventures Ltd & 4 others [2016] KEELC 62 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/62/eng@2016-12-14

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.