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ELCDismissedNot stated in the judgment (application dated 21st August 2026)· [2026] KEELC 4031 (KLR)

Shah & 42 others v Denko Properties Ltd & 2 others (Environment and Land Case E005 of 2023) [2026] KEELC 4031 (KLR)

High Court of Kenya, Machakos (presiding judge designated 'JUDGE'; court name not printed in the excerpt)
2 July 2026
NMN.A. Matheka
1,313 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The 1st, 2nd and 3rd Defendants moved the court by an application dated 21st August 2026 under Order 50 Rule 4 and Order 51 Rule 1 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act and Article 159 of the Constitution. They sought an interlocutory mandatory injunction compelling the Plaintiffs/Respondents to pay water bills to the 1st Defendant for water consumed on their plots pending the hearing of the suit, and the striking out of the 2nd and 3rd Defendants, who alleged they were wrongly sued in their personal capacities since the contracts were made with the 1st Defendant company. The Defendants contended the contracts only required provision of access to water (a borehole and pipes), that the Plaintiffs had evicted them and Greengro International Ltd, and that a payment order was needed to run the borehole. The Respondents opposed, arguing the Defendants breached the contracts which were then terminated, that clause 4.1.1 provided for service charges deducted from returns, and that the water-bill question was res judicata per Small Claims Case No. E313 of 2022. The court, applying Kenya Breweries v Washington Okeyo, Halsbury's Laws, Kenya Power v Sherifi Molana Habib, Lucy Wangui Gachara v Minudi Okemba Lore and Bharat Petroleum v Haro Chand Sachdeva, held that interlocutory mandatory injunctions issue only in clear cases with special circumstances and that the termination and res judicata issues required a full hearing. Striking out the 2nd and 3rd Defendants was also premature. The application was dismissed; parties to comply with Order 11 and set the matter down for hearing; costs in the cause.

Key legal issues

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01

Whether an interlocutory mandatory injunction could issue for payment of water bills

Holding

No. The court held the relief sought was in substance a mandatory/permanent injunction ordinarily grantable only after a full hearing, and no special circumstances or clear-cut case was demonstrated.

Reasoning

The court applied the settled principle that mandatory injunctions at the interlocutory stage are granted only in clear cases with special circumstances. It distinguished interim injunctions, which protect the subject matter, from permanent injunctions, which determine rights after evidence. Whether the contract was rightfully terminated and whether the water-bill issue was res judicata (per Small Claims Case No. E313 of 2022) were matters for the full hearing.

p. 2
02

Whether the 2nd and 3rd Defendants should be struck out for being sued in their personal capacities

Holding

No. The court found the question premature at the interlocutory stage, since the Respondents allege the 2nd and 3rd Defendants personally procured and warranted the contracts.

Reasoning

The Applicants argued the contracts were with the 1st Defendant only and that the Plaintiffs never sought to lift the corporate veil. The Respondents countered that the 2nd and 3rd Defendants collectively procured execution of the contracts and personally warranted performance. Resolving this factual dispute would amount to granting final relief at an interlocutory stage, which the court declined to do.

p. 3

Legal principles established

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  • An interlocutory mandatory injunction will only be granted in the absence of special circumstances where the case is clear-cut
  • A temporary mandatory injunction on an interlocutory application is granted only in rare cases with compelling circumstances, and only to restore, not establish, a state of things

Court orders

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  1. 1.The application dated 21st August 2026 is dismissed as not merited
  2. 2.Parties are to comply with Order 11 and set the matter down for hearing
  3. 3.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 50 Rule 4
  • Civil Procedure Rules, 2010Order 51 Rule 1
  • Civil Procedure Act, Cap 63, Laws of KenyaSections 1A, 1B & 3A
  • Constitution of Kenya, 2010Article 159

Cases cited (4)

  • Kenya Breweries Limited vs. Washington Okeyo
    Civil Application No. 332 of 2000
  • Kenya Power & Lighting Co. Limited vs Sherifi Molana Habib
    (2018) eKLR
  • Lucy Wangui Gachara vs Minudi Okemba Lore
    (2015) eKLR
  • Bharat Petroleum Corp Ltd v Haro Chand Sachdeva
    AIR 2003
Jurisdiction invoked
Inherent jurisdiction under Section 1A, 1B & 3A of the Civil Procedure Act, Cap 63, and Article 159 of the Constitution of Kenya, 2010

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, "Shah & 42 others v Denko Properties Ltd & 2 others (Environment and Land Case E005 of 2023) [2026] KEELC 4031 (KLR)", Case Analysis (2026). Not stated in the judgment (application dated 21st August 2026). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4031/eng@2026-07-02

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