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Case Brief · caselaw.co.ke
ELCPartially AllowedNot stated in the judgment (Petition filed 2nd February 2023; notice of motion dated 30th January 2023; notice of motion dated 15th September 2023)

Watamu Association & another v 1st Respondent & others (temporary injunction application)

Environment and Land Court
6 March 2024
2,657 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Petitioners, officials of the Watamu Association registered in 1994 to protect the Watamu ecosystem, petitioned claiming that construction by the 1st Respondent adjacent to L.R. No. 8594/13 encroached on the riparian zone between the property and the Indian Ocean, and moved for a temporary injunction, a boundary resurvey and related orders. They contended the EIA report supported only a swimming pool, that the 2nd Respondent's approval was granted on a dead applicant's application, and that no public participation occurred. A government survey ordered on 13th February 2023 found the construction to be 9 metres within the riparian zone reserved for government purposes. The 1st Respondent countered that she was merely extending her family's 'Baraka House' hotel with semi-permanent structures outside the riparian zone, and applied under Order 40 rule 7 to discharge the interim injunction, challenging the Petitioners' locus standi and invoking equitable maxims and non-compliance with the Societies Act. The court applied the Giella v Cassman Brown principles as restated in Nguruman Limited v Jan Bonde Nielsen. It found a prima facie case on the survey evidence, held that destruction of the riparian ecosystem would be irreparable loss not compensable in damages, and granted the temporary injunction. It dismissed the discharge application, holding the locus standi issue had been determined by Odeny J on 13th July 2023 and could not be relitigated. Both motions were allowed/dismissed respectively with costs in the cause.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Petitioner has met the criteria for the grant of order of temporary injunction pending the hearing and determination of this suit.
  2. 2.Whether the interim orders issued on 13th February 2023 should be discharged.

Key legal issues

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01

Whether the Petitioners established a prima facie case for a temporary injunction

Holding

Yes - the official survey report showed the 1st Respondent's construction is 9 metres within the riparian zone reserved for government purposes.

Reasoning

The court relied on the survey report ordered on 13th February 2023, produced by the Ministry of Lands & Physical Planning, which found the construction encroached 9 metres into the riparian zone. On that material, the Petitioners demonstrated a clear and unmistakable right threatened by the construction, satisfying the first Giella hurdle without the court conducting a mini-trial on the merits.

p. 5
02

Whether the Petitioners would suffer irreparable loss if the injunction is not granted

Holding

Yes - destruction of the riparian ecosystem and violation of the right to a clean and healthy environment cannot be compensated in damages.

Reasoning

The court grounded the irreparable-injury analysis in Chapter 5 of the Constitution on land and environment, noting that land must be used sustainably and that sound conservation of riparian reserves entails protection of wetlands. Waste of such a resource would be irreparable and not compensable by damages, satisfying the second Giella hurdle and making a temporary injunction necessary.

p. 5
03

Whether the interim orders of 13th February 2023 should be discharged on grounds of lack of locus standi

Holding

No - the application lacks merit and the locus standi issue is res judicata, having been determined by Odeny J on 13th July 2023.

Reasoning

The court found it improper to relitigate the Petitioners' capacity, which had already been addressed in a prior ruling of Odeny J delivered on 13th July 2023. Having upheld the injunction on the merits, the court saw no basis to discharge the interim orders and dismissed the 1st Respondent's motion under Order 40 rule 7.

p. 6

Legal principles established

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  • An applicant for an interlocutory injunction must sequentially establish a prima facie case, irreparable injury, and that the balance of convenience lies in his favour.
  • Destruction of a riparian reserve / wetland ecosystem constitutes irreparable loss that cannot be adequately compensated by damages.

Court orders

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  1. 1.The notice of motion dated 30th January 2023 is allowed - temporary injunction granted pending hearing and determination of the petition
  2. 2.The 1st Respondent's notice of motion dated 15th September 2023 (seeking discharge of the temporary injunction issued on 13th February 2023) is dismissed
  3. 3.Costs of the two motions shall be in the cause

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Original petition jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution (land and environment); Order 40 Civil Procedure Rules for injunction and discharge applications

Relief refused

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Discharge of the temporary injunction issued on 13th February 2023

The court found the survey report established encroachment on the riparian zone and locus standi had already been determined by Odeny J

p. 6

Costs

The costs of the two motions shall be in the cause.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The upshot is that the notice of motion dated 30th January 2023 is hereby allowed. The 1st Respondent's motion dated 15th September 2023 is dismissed. The costs of the two motions shall be in the cause.
p. 6Final orders/disposition
a survey report of the disputed area was done by the Ministry of Lands & Physical Planning and it observes that the 1st Respondent's construction is 9 meters within the riparian zone reserved for government purpose.
p. 5Prima facie case - encroachment on riparian land
Such waste in my view, would amount to irreparable loss that cannot be compensated by way of damages.
p. 5Irreparable injury - environmental destruction
It is improper to bring up the same issue again.
p. 6Res judicata on locus standi
If prima facie case is not established, then irreparable injury and balance of convenience need no consideration.
p. 4Sequential application of Giella principles (as stated in Nguruman)

Issues in the judgment

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minor

The judgment refers to the 1st Respondent constructing on her late mother's property L.R. No. 8594/9 in the affidavit, but the 1st Respondent refers to the same land as L.R No. 8594/13 (the suit property), creating inconsistency over the parcel on which construction is taking place.

minor

The parties' names are not fully set out in the judgment text; only roles (Petitioners, 1st-3rd Respondents) are used.

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, "Watamu Association & another v 1st Respondent & others (temporary injunction application)", Case Analysis (2024). Not stated in the judgment (Petition filed 2nd February 2023; notice of motion dated 30th January 2023; notice of motion dated 15th September 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1236/eng@2024-03-06

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