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ELCPartially AllowedNot stated in the judgment

Hashid v Musau & others; County Government of Nairobi (Interested Party) (Environment and Land Case E475 of 2025) [2026] KEELC 810 (KLR)

Not expressly named in the judgment (first-instance superior court, Nairobi; judge signs as 'JUDGE')
16 February 2026
1,756 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Nairobi court stopped construction and road-blocking on a Komarock plot pending trial, but refused eviction because that final remedy can only follow a full hearing.

What this practically means

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Executive summary

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The Applicant, owner of LR NO. 209/11935 in Komarock Area, Nairobi, moved the court by Notice of Motion seeking a temporary injunction restraining the Defendant from further development or construction on the parcel, blocking the access road, or selling and allocating illegal structures; an eviction order; a direction to the Nairobi County Government Urban Planning Department to assess the alleged illegal construction and file a report; an order that the OCS Obama Police Station enforce compliance; and a permanent injunction. The Applicant deponed that the Defendant, without right, occupied the road reserve with illegal structures that encroached on his commercially used property, causing loss, and that the County Government had not responded to his enquiry. The Respondent opposed, arguing that permanent injunction and eviction orders were not viable at the interlocutory stage, that he built as a member of the Pamoja Youth group with County approval, that no encroachment occurred, that no cause of action lay against him under Order 2 rule 4(10), and that the Giella conditions were unmet. Applying Giella, Nguruman, Mrao and the irreparable-injury definition adopted in Ernest Muriuki Mungai, the court found a prima facie case (undisputed title and construction), potential irreparable loss if construction completed, and the balance of convenience favouring the Applicant. The application was allowed as to prayers 2, 3 and 5: temporary injunctions issued pending hearing of the application and the suit, the Urban Planning Department was directed to assess and report, the OCS to ensure compliance, and costs were awarded to the Applicant against the Respondent. Eviction and permanent injunction were not granted.

Questions the Court framed

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

  1. 1.Whether the applicant has met the threshold for issuance of temporary injunctive orders

Key legal issues

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01

Whether the applicant established a prima facie case

Holding

Yes - ownership of the suit property is evidenced by title and undisputed, and the construction activity was not disputed; the right allegedly infringed calls for rebuttal, including from the County Government whose approval is claimed

Reasoning

The applicant attached a title deed showing ownership, which the respondent did not dispute, and photographs of the alleged construction. The respondent asserted the construction was approved by the County Government, an averment the court held requires interrogation of evidence by that body. On the Mrao definition, a right apparently infringed calling for rebuttal suffices at this stage.

p. 4
02

Whether the applicant would suffer irreparable injury not compensable by damages

Holding

Yes - if construction proceeds to completion, the property would no longer be available in its original state, putting the applicant to substantial loss

Reasoning

The court reasoned that preservation of the status quo is imperative: if more construction happens to completion and the court later finds for the applicant, the suit property would not be restorable to its original state. Adopting the Black's Law Dictionary definition via Ernest Muriuki Mungai, the threatened injury is substantial and serious and not easily estimated or repaired by money.

p. 4
03

Where the balance of convenience lies

Holding

It tilts in favour of granting the injunction because the applicant has an identifiable interest in the suit property worth protecting

Reasoning

On the third Giella limb, the court found that the applicant holds an identifiable, protectable interest in the suit property, and that granting the injunction better preserves that interest than refusing it, consistent with its earlier findings on prima facie case and irreparable harm.

p. 4

Legal principles established

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  • The three Giella conditions govern the grant of interlocutory injunctions: prima facie case with probability of success, irreparable injury not compensable by damages, and balance of convenience if in doubt
  • A prima facie case in a civil application is one where, on the material presented, the court concludes there exists a right apparently infringed so as to call for an explanation or rebuttal from the opposite party
  • Irreparable injury does not require an injury physically incapable of repair; it suffices that the threatened injury is substantial and serious, not easily estimated or repaired by money

Court orders

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  1. 1.Conservatory Order of temporary injunction barring the Defendant, his servants/proponents or any other person from undertaking any further development and construction activities on parcel LR.NO.209/11935 within Komarock Area, Nairobi County, stopping, halting and discontinuing the Defendant from blocking the access road, selling and allocating illegal structures pending the hearing and determination of the application
  2. 2.Conservatory Order of temporary injunction in identical terms pending the hearing and determination of the suit
  3. 3.The County Government of Nairobi Urban Planning Department to assess the situation on the purported illegal construction and file a report in court
  4. 4.The Officer Commanding Station (OCS) Obama Police Station to ensure compliance with the orders issued
  5. 5.Costs of the application to be borne by the respondent

The bench

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

Wrote the judgment

Jurisdiction invoked
Not expressly stated in the judgment; the application is brought under the Civil Procedure Rules (Order 40 Rule 1(a) and (b) on temporary injunctions)

Relief refused

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Order of eviction against the Defendant from occupying, constructing structures or blocking the Applicant's access to LR.NO.209/11935

The court only allowed the application as to prayers 2, 3 and 5 of the motion; the eviction prayer (prayer 3 of the motion) was not among the orders granted, being a final remedy unsuitable at the interlocutory stage

p. 4

Permanent injunction restraining the Defendant from constructing illegal structures or blocking the Applicant's access

A permanent injunction is a final relief that can only issue after full trial, not on a motion

Costs

Cost of the application to be borne by the respondent.

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.

That Conservatory Order of temporary injunction is hereby issued barring the Defendant, his servants/proponents, or any other person from undertaking any further development and construction activities on parcel of land number LR.NO.209/11935 within Komarock Area, Nairobi County, stopping, halting and discontinuing the Defendant from blocking the access road, selling and allocating illegal structures pending the hearing and determination of this suit
p. 4Final orders - temporary injunction granted
That the County Government of Nairobi Urban Planning Department to assess the situation on the purported illegal construction and file a report in court.
p. 4Final orders - report by Urban Planning Department
I find that the applicant has met the threshold for the orders of temporary injunction to be issued and find the application dated 15th September 2025 is with merit and allowed as to prayers 2, 3 and 5
p. 4Disposition - partial allowance of the motion
Cost of the application to be borne by the respondent.
p. 5Costs order
The applicant in my view has established a prima facie case which means that there is a right which had apparently been infringed by the Respondent to call for a rebuttal.
p. 4Prima facie case

Issues in the judgment

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material

The motion is introduced as dated 20th November 2023, but the disposition refers to 'the application dated 15th September 2025'; the dates are inconsistent within the judgment

minor

The replying affidavit is sworn on 28th October 2025, chronologically inconsistent with an application dated 20th November 2023

minor

The letter to the County Government is dated 5th August 2025 and is described as seeking clarity, yet the affidavit refers to an earlier approach for help that received no response; the court also refers to the County Government as the 'intended interested party' although an interested party is named in the prayer

minor

The judgment does not identify the court, the case number, or the parties by name, and refers to the Applicant generically

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, "Hashid v Musau & others; County Government of Nairobi (Interested Party) (Environment and Land Case E475 of 2025) [2026] KEELC 810 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/810/eng@2026-02-16

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