The application is dated 21st February 2024 and is brought under Rule 23 of the constitution of Kenya (Protection of Rights and fundamental Freedoms) Practice and procedure rule 2013 and Article 22, 23, 165 and 258 of the constitution of Kenya 2010) seeking the following orders;
1. That the application be satisfied extremely urgent, service be dispensed with and be heard ex-parte in the first instance.
2. That pending the hearing and determination of this petition, this honourable Court pleased to issue prohibitory orders prohibiting the respondents themselves or by their agents or their staff or their tenants or any private not mentioned in this suit from developing or constructing and or the building on Plot No. 1417 Mwembelegeza scheme in Mombasa.
3. That pending the hearing and determination of this petition, this Honourable Court be pleased to order that all tenants and any other person not mentioned in this suit using the building for businesses and or residing in the building on plot no. 1417 Mwembelegeza scheme to vacate immediately.
4. That this honourable court be pleased to issue an order to OCS Kadzandani/mwatamba police station in whose jurisdiction the building on plot no. 1417 Mwembelegeza scheme is situated to ensure compliance of the same order and maintenance of law and order.
5. That the cost of this application be in the cause.
It is supported by the Affidavit of Ainea Ragen and on other grounds that the 1st respondent illegally and without statutory approvals and registration, extended four (4) floors on top of the previously constructed three (3) floors on a building in Plot No. 1417 Mwembelegeza scheme. That the 3rd respondent (National Construction Authority NCA) on 22nd November 2021 vide Order no. S/No. 111435 suspended further construction works on the building but the 1st respondent defied the said order and continued with construction activities. That on 7th January 2022 the 4th respondent (National Building Inspectorate - NBI) visited the construction site and conducted structural integrity test and upon their findings, ordered that the tenants operating businesses on the ground floor of the said building vacate for safety concerns. The said order was copied to the 2nd respondent (County Government of Mombasa) to effect compliance. This order was not complied with even in the presence of inspectors from the 2nd respondent.
That further during their site visit on 7th January 2022, the 4th respondent (National Building Inspectorate — NBI) also ordered that further works on the building be stopped until scientific testing is carried out by an independent engineering consulting firm provided by the 1st respondent. This was defied by the 1st respondent as construction works has been going on secretly on weekends and in the evenings of weekdays and that the 1st respondent has brought in more tenants on the ground floor in blatant disregard of the said orders as issued by the 3rd (NCA) and 4th (NBI) respondents. That the scientific testing/structural audit carried out on the building by Geoissa Engineering Ltd a private engineering consulting firm contracted and commissioned by the 1st respondent dated 16th May 2022 and required by the 4th respondent (National Building Inspectorate NBI), revealed serious engineering/structural defects, a proof that the building is unsafe. That technical and safety concerns raised by the 4th respondent (National Building inspectorate NBI) during their site visit on 7th January 2022 has not been addressed to date though the 1st respondent has continued with construction works. That the Environmental impact assessment license (EIA) for the building on plot no. 1417 Mwembelegeza scheme allegedly issued by the 5th respondent (National Environment management authority — NEMA) only shows license for the additional 3 floors and also has serious discrepancies on the date it was issued which shows 3rd November 2023. This does not correspond with the date and year the 4 floors were added to the existing 3 floors. The four floors were added in mid-2021. That part of the building sits on road reserve as confirmed by the 6th respondent (Kenya urban roads Authority — KURA) a road within the jurisdiction of the 6th respondent (KURA) in violation of Article 62(4) of the constitution 2010 and this has obstructed road users triggering numerous accidents within the four-way junction where the building is situated.
That the 1st respondent by its illegal, unauthorized and unregistered construction, violated Kenya power and lighting company (KPLC), Kenya power line wayleave hence posing great danger to the general public and unsuspecting tenants. That unless this application is heard and determined urgently in the first instance, and orders sought granted, the lives of tenants using the ground floor of the building for business purposes, the lives of tenants occupying neighbouring buildings and lives of the general public and other road users are in grave danger as the building might collapse anytime. That right to a safe and healthy environment is guaranteed in the constitution by Article 42 of the constitution of Kenya 2010 and this court being a specialized court by Article 162(2)(b) is enjoined in this suit to instantly grant orders sought to protect lives of users of the said building, the general public and to thwart a disaster in the waiting. That the 1st respondent aided and protected by the 2nd respondent (County government of Mombasa), by defying 3rd (NCA) and 4th respondent's (NBI) orders to stop further construction and occupation of the building by business tenants, has shown to be a non-law-abiding citizen who thrives in impunity, having no regard for life of others, and regard for statutory bodies and only puts his business interest before life and a safe/healthy environment. This honourable court is enjoined to act decisively and immediately by granting orders as prayed in this application. Haji Mbarak Tasir Kenya urban roads authority (KURA) Plot no. 1417 Mwembelegeza scheme Barabara plaza, JKIA Airport.
The 1st Respondent stated that he is the registered owner and proprietor of parcel No. 1417 Mwembelegeza scheme. That he obtained all the relevant approvals to conduct the construction ('HMT-I') That he has complied to all the legal requirements under the law. That there is no place in the said letter that states that his land is on a road reserve neither did he receive any notification or letters from the 6th Respondent to the effect that his land was situated in a road reserve. That he successfully applied for the approvals for the construction of the first three floors to NEMA (5th Respondent) and the said request was approved on the 22nd January 2016. That he applied to all relevant authorities including the 5th Respondent for approvals for the construction of the extension of the 4th to 6th floor and fully complying with the provision of the Environmental management and coordination act.
That the Building Code as published by the National Construction Authority under paragraph 16 stipulates that where the width of an existing road is in front of a new building is less than 6 meters then part of the building shall be within 6 meters from the center line of the road. That the land having been surveyed, the beacons were in line with the physical planning requirements as issued by the County Government as per the Physical Planning and land Use Act. That the said construction is on a surveyed land and the Constitution of Kenya 2010 under Article 40 that as a citizen he has the protection of the law to own property and that further the protection is extend by virtue of Article 64 of the Constitution of Kenya that offers protection to private land.
This court has considered the application and submissions therein. The Petitioner in this matter seeks both a prohibitory injunction and a mandatory injunction as seen in the prayers above. There is a distinction between the prohibitory injunction as envisaged in the “Locus Classicus” case of Giella vs Cassman Brown, 1973 E.A. Page 358 and a Mandatory Injunction. In the case of Shepard Homes vs Sandham (1970) 3 WLR page 356 Case in which Megarry J as he then was stated follows;
“Whereas a Prohibitory Injunction merely requires abstention from acting, a Mandatory Injunction requires the taking of positive steps, and may require the dismantling or destruction of something already erected, or constructed. This will result in a consequent waste of time, money and materials. If it is ultimately established that the Defendant was entitled to retain the erection”.
The applicant states that the 1st respondent illegally and without statutory approvals and registration, extended four (4) floors on top of the previously constructed three (3) floors on a building in Plot No. 1417 Mwembelegeza scheme. That the 3rd respondent (National Construction Authority NCA) on 22nd November 2021 vide Order no. S/No. 111435 suspended further construction works on the building but the 1st respondent defied the said order and continued with construction activities. The applicant has attached correspondence to that effect. There is also a claim that the building is on a road reserve.
The 1st respondent insists that he obtained all the relevant approvals to conduct the construction That he has complied to all the legal requirements under the law. That there is no place in the said letter that states that his land is on a road reserve neither did he receive any notification or letters from the 6th Respondent to the effect that his land was situated in a road reserve. The 1st respondent has attached an approval for the extension of the 4th, 5th and 6th floors on the said suit property from the County Government of Mombasa, a letter from the National Construction Authority lifting the suspension dated 27th September 2023 and a letter from NEMA approving the proposed extension.
The 4th and 8th respondents submitted that this court does not have jurisdiction to entertain the matter and it should have been referred to the County Physical and Land use Planning Liaison Committee as per section 61(3) of the Physical and Land Use Planning Act 2019 (PLUPA). That this application should be dismissed and the applicant be directed to adhere to procedure laid down in that Act. I find that the 4th and 8th Respondents have raised a preliminary objection in their submissions on the issue of jurisdiction. According to the Black Law Dictionary a Preliminary Objection is defined as being:
“In case before the tribunal, an objection that if upheld, would render further proceeding before the tribunal impossible or unnecessary…….”
The above legal preposition has been made graphically clear in the now famous case of Mukisa Biscuits Manufacturing Co. Ltd vs West End Distributors Ltd. (1969) E.A. 696. Where Lord Charles Newbold. held that a proper preliminary objection constitutes a pure point of law. The Learned Judge then held that;
“The first matter relates to the increasing practice of raising points, which should be argued in the normal manner, quite improperly by way of Preliminary objection. A preliminary Objection is in the nature of what used to be a demurer it raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought in the exercise of judicial discretion. The improper raising of points by way of Preliminary objection does nothing but unnecessarily increase costs and, on occasion, confuse the issue. The improper practice should stop”
I find that jurisdiction is a pure point of law and will consider the same first. The centrality of the concept of jurisdiction in our civil disputes adjudication was captured by Nyarangi JA in the case of Owners of Motor Vessel ‘Lilian S’ vs Caltex Oil (Kenya) Ltd (1989) 1 KLR in the following words;
“ I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it at the moment it holds the opinion that it is without jurisdiction.”
The Supreme Court of Kenya outlined the importance of the concept of jurisdiction in the case of Samuel Kamau Macharia & another vs Kenya Commercial Bank Limited & 2 others (2012) eKLR in the following words;
“A court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other
written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submissions that the issue as to whether a court of law has jurisdiction to entertain a matter before it is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the court cannot entertain any proceedings. This court dealt with the question of jurisdiction extensively in In the Matter of Interim Independent Electoral Commission (Applicant), Constitution Application Number 2 of 2011. Where the Constitution exhaustively provides for the jurisdiction of a court of law, the court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon parliament to set the jurisdiction of a court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.”
The jurisdiction of this court to hear and determine disputes relating to the environment and the use and occupation of and title to land as provided for under Article 162(2) (b) of the Constitution of Kenya, 2010 and at Section 13 of the Environment and Land Court Act, 2011. The said Section 13 provides as follows:
13. Jurisdiction of the Court
(1) The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2) (b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land.
(2) In exercise of its jurisdiction under Article 162(2) (b) of the Constitution, the Court shall have power to hear and determine disputes—
(a) relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;
(b) relating to compulsory acquisition of land;
(c) relating to land administration and management;
(d) relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and
(e) any other dispute relating to environment and land.
In the case of Adega & 2 others vs Kibos Distillers Limited & 5 others (Petition 3 of 2020) (2020) KESC 36 (KLR), the Supreme Court held that;
“Judicial abstention, as with judicial restraint, is a doctrine not founded in constitutional or statutory provisions, but one that has been established through common law practice. It provides that a Court, though it may be vested with the requisite and sweeping jurisdiction to hear and determine certain issues as may be presented before it for adjudication, should nonetheless exercise restraint or refrain itself from making such determination, if there would be other appropriate legislatively mandated institutions and mechanism.”
There is a general interpretation of the law to the effect that where Parliament has, through statute, established other primary adjudicatory bodies, this court should let those primary adjudicatory bodies exercise their primary jurisdiction, and this court should only exercise appellate jurisdiction. Indeed, this was the principle emphasized by the Court of Appeal in Kibos Distillers Limited & 4 others vs Benson Ambuti & 3 others (2020) eKLR. The Supreme Court, while declining to grant leave for an appeal to the apex court, agreed with the Court of Appeal on this interpretation of the law in Benson Ambuti Adega vs Kibos Distillers Ltd & 5 others (2020) eKLR. There is similarly an accepted general interpretation of the above framework to the effect that because the Environment and Land Court Act grants this court both original and appellate jurisdiction in disputes relating to environment and the use, occupation of and title to land, whenever the other institutions vested with primary jurisdiction to adjudicate similar disputes are, for one reason or the other, unable to sit, this court should be able to exercise its original jurisdiction in those circumstances. The circumstances include a situation where a liaison committee or a tribunal is, for one reason or the other, unable to sit and discharge its adjudicatory functions.
This petition is based on the enforcement notice issued by the 4th respondent. Further, the 1st respondent challenges the decision revoking their development permission and requiring them to under go a fresh inspection and development permission. It seeks to invalidate the enforcement notice and the impugned decision.
Section 72(3) and (4) of the PLUPA contains the following framework on adjudication of disputes relating to enforcement notices:
“(3) Where a person on whom an enforcement notice has been served is
aggrieved by that notice, that person may appeal to the relevant County Physical and Land Use Planning Liaison Committee within fourteen days of being served with the notice and the committee shall hear and determine the appeal within thirty days of the appeal being filed.
(4) Any party aggrieved with the determination of the county physical and land use planning liaison committee may appeal to the court only on a matter of law and the court shall hear and determine the appeal within thirty days.”
Similarly, Section 61(3) and (4) of the PLUPA contains the following framework on adjudication of disputes relating to decisions made in relation to development permissions:
“(3) An applicant or an interested party that is aggrieved by the decision of a county executive committee member regarding an application for development permission may appeal against that decision to the County Physical and Land Use Planning Liaison Committee within fourteen days of the decision by the county executive committee member and that committee shall hear and determine the appeal within fourteen days of the appeal being filed.
(4) An applicant or an interested party who files an appeal under sub-section (3) and who is aggrieved by the decision of the committee may appeal against that decision to the Environment and Land Court.”
Having reflected on the gist of the dispute in this petition vis-à-vis the above legal framework on primary adjudication of disputes relating to enforcement notices and development permissions, I entirely agree with the 4th and 8th respondents that this dispute has been placed before this court prematurely. In normal circumstances the petitioner ought to exhaust the primary dispute adjudication mechanism provided under the PLUPA before invoking the jurisdiction of this court. Be that as it may, this court takes judicial notice and it is a finding of fact that for one reason or another Mombasa County does not have a Liaison Committee and /or the same has not been operationalised and is not sitting. Being a court of original and appellate jurisdiction in disputes relating to environment and the use, occupation of and title to land, this court will proceed to entertain the matter as this is the current available avenue in the circumstances to the litigants. The preliminary objection is therefore not sustainable and is overruled.
With regard to the grant of a prohibitory/mandatory injunction as per prayed for in the application, the test is correctly set out in Vol. 24 Halsbury's Laws of England 4th Edition, Paragraph 98, thus;
"A mandatory injunction can be granted on an interlocutory application as well as at the hearing, but, in the absence of special circumstances it will not normally be granted. However, if the case is clear and one which the court thinks it ought to be decided at once, or if the act done is a simple and summary one which can be easily remedied, or if the defendant attempted to steal a march on the plaintiff... a mandatory injunction will be granted on an interlocutory application". Also in Locabail International Finance Ltd -v- Agroexport and Others [1986] 1 All ER 901, at page 901,it was stated:
"A mandatory injunction ought not to be granted on an interlocutory application in the absence of special circumstances, and then only in clear cases either where the court thought that the matter ought to be decided at once or where the injunction was directed at a simple and summary act which could be easily remedied or where the defendant had attempted to steal a march on the plaintiff. Moreover, before granting a mandatory injunction the court had to feel a high degree of assurance that at the trial it would appear that the injunction had rightly been granted, that being a different and higher standard than was required for a prohibitory injunction".
Clearly, the applicant in this case wants inter alia a mandatory interlocutory injunction and in order to succeed, one needs to demonstrate special circumstances and an exceptionally strong case. In the case of Kamau Mucuha vs Ripples Limited (1993) eKLR, Hancox CJ, stated as follows on the issue of grant of mandatory injunctions at an interlocutory stage;
“Speaking for myself, I entirely agree that, historically, the principles laid down with regard to temporary mandatory injunctions are that they will only be granted exceptionally and in the clearest cases. In Canadian Pacific Railway v Gaud [1949] 2KB,Cohln LJ said at page 249:
“I entirely agree………………………….. that the granting of a mandatory injunction on interlocutory relief is a very exceptional form of relief to grant, but it can be granted.”
In the case of Shepherd Homes vs Sandham (1970) 3 WLR 348) the court held that;
“ …… .... if a mandatory injunction is granted on motion, there will normally be no question of granting a further mandatory injunction at the trial; what is done is done and the plaintiff has, on motion, obtained once and for all the demolition or destruction that he seeks. Where an injunction is prohibitory, however, there will often still be a question at the trial whether the injunction should be dissolved or contained.”
I am alive to the above principles in granting a mandatory injunction. The applicant seeks an order to stop construction and that all tenants and any other person not mentioned in this suit using the building for businesses and or residing in the building on plot no. 1417 Mwembelegeza scheme to vacate immediately. Be that as it may, it seems that these tenants were already in the developed part of the building and the 1st respondent was trying to develop additional floors. The Applicant stated that on 7th January 2022 the 4th respondent (National Building Inspectorate - NBI) visited the construction site and conducted structural integrity test and upon their findings, ordered that the tenants operating businesses on the ground floor of the said building vacate for safety concerns. During the pendency of this case the 1st Respondent filed another case ELC Case No. E015 of 2024. In that matter he has sued the 2nd, 3rd and 4th Respondents herein. The 1st Respondent admits receiving a notice dated 4th April 2024 to vacate the building as it is structurally unsafe and unfit for human habitation so as to pave way for additional structural integrity tests. I find that this is a dangerous state of affairs and the experts have already given their opinion against occupation and further construction. I find that this establishes a prima facie case and coming from the experts it would be unsafe to continue habitation and construction of the suit property as it would cause great danger to the public. These are indeed special circumstances. There is no evidence that this notice has been lifted and it still stands. The issue of the property sitting on a road reserve still remains unanswered as well. I find that the application is merited and I grant the following orders;
1. That pending the hearing and determination of this petition, a prohibitory injunction is issued prohibiting the respondents themselves or by their agents or their staff or their tenants from developing or constructing and or the building on Plot No. 1417 Mwembelegeza scheme in Mombasa.
2. That pending the hearing and determination of this petition, a mandatory injunction is issued to all tenants using the building for businesses and or residing in the building on plot no. 1417 Mwembelegeza scheme to vacate as per the notice issued by the County Government of Mombasa dated 4th April 2024.
3. That the cost of this application be in the cause.
It is so ordered.
1. That the application be satisfied extremely urgent, service be dispensed with and be heard ex-parte in the first instance.
2. That pending the hearing and determination of this petition, this honourable Court pleased to issue prohibitory orders prohibiting the respondents themselves or by their agents or their staff or their tenants or any private not mentioned in this suit from developing or constructing and or the building on Plot No. 1417 Mwembelegeza scheme in Mombasa.
3. That pending the hearing and determination of this petition, this Honourable Court be pleased to order that all tenants and any other person not mentioned in this suit using the building for businesses and or residing in the building on plot no. 1417 Mwembelegeza scheme to vacate immediately.
4. That this honourable court be pleased to issue an order to OCS Kadzandani/mwatamba police station in whose jurisdiction the building on plot no. 1417 Mwembelegeza scheme is situated to ensure compliance of the same order and maintenance of law and order.
5. That the cost of this application be in the cause.
It is supported by the Affidavit of Ainea Ragen and on other grounds that the 1st respondent illegally and without statutory approvals and registration, extended four (4) floors on top of the previously constructed three (3) floors on a building in Plot No. 1417 Mwembelegeza scheme. That the 3rd respondent (National Construction Authority NCA) on 22nd November 2021 vide Order no. S/No. 111435 suspended further construction works on the building but the 1st respondent defied the said order and continued with construction activities. That on 7th January 2022 the 4th respondent (National Building Inspectorate - NBI) visited the construction site and conducted structural integrity test and upon their findings, ordered that the tenants operating businesses on the ground floor of the said building vacate for safety concerns. The said order was copied to the 2nd respondent (County Government of Mombasa) to effect compliance. This order was not complied with even in the presence of inspectors from the 2nd respondent.
That further during their site visit on 7th January 2022, the 4th respondent (National Building Inspectorate — NBI) also ordered that further works on the building be stopped until scientific testing is carried out by an independent engineering consulting firm provided by the 1st respondent. This was defied by the 1st respondent as construction works has been going on secretly on weekends and in the evenings of weekdays and that the 1st respondent has brought in more tenants on the ground floor in blatant disregard of the said orders as issued by the 3rd (NCA) and 4th (NBI) respondents. That the scientific testing/structural audit carried out on the building by Geoissa Engineering Ltd a private engineering consulting firm contracted and commissioned by the 1st respondent dated 16th May 2022 and required by the 4th respondent (National Building Inspectorate NBI), revealed serious engineering/structural defects, a proof that the building is unsafe. That technical and safety concerns raised by the 4th respondent (National Building inspectorate NBI) during their site visit on 7th January 2022 has not been addressed to date though the 1st respondent has continued with construction works. That the Environmental impact assessment license (EIA) for the building on plot no. 1417 Mwembelegeza scheme allegedly issued by the 5th respondent (National Environment management authority — NEMA) only shows license for the additional 3 floors and also has serious discrepancies on the date it was issued which shows 3rd November 2023. This does not correspond with the date and year the 4 floors were added to the existing 3 floors. The four floors were added in mid-2021. That part of the building sits on road reserve as confirmed by the 6th respondent (Kenya urban roads Authority — KURA) a road within the jurisdiction of the 6th respondent (KURA) in violation of Article 62(4) of the constitution 2010 and this has obstructed road users triggering numerous accidents within the four-way junction where the building is situated.
That the 1st respondent by its illegal, unauthorized and unregistered construction, violated Kenya power and lighting company (KPLC), Kenya power line wayleave hence posing great danger to the general public and unsuspecting tenants. That unless this application is heard and determined urgently in the first instance, and orders sought granted, the lives of tenants using the ground floor of the building for business purposes, the lives of tenants occupying neighbouring buildings and lives of the general public and other road users are in grave danger as the building might collapse anytime. That right to a safe and healthy environment is guaranteed in the constitution by Article 42 of the constitution of Kenya 2010 and this court being a specialized court by Article 162(2)(b) is enjoined in this suit to instantly grant orders sought to protect lives of users of the said building, the general public and to thwart a disaster in the waiting. That the 1st respondent aided and protected by the 2nd respondent (County government of Mombasa), by defying 3rd (NCA) and 4th respondent's (NBI) orders to stop further construction and occupation of the building by business tenants, has shown to be a non-law-abiding citizen who thrives in impunity, having no regard for life of others, and regard for statutory bodies and only puts his business interest before life and a safe/healthy environment. This honourable court is enjoined to act decisively and immediately by granting orders as prayed in this application. Haji Mbarak Tasir Kenya urban roads authority (KURA) Plot no. 1417 Mwembelegeza scheme Barabara plaza, JKIA Airport.
The 1st Respondent stated that he is the registered owner and proprietor of parcel No. 1417 Mwembelegeza scheme. That he obtained all the relevant approvals to conduct the construction ('HMT-I') That he has complied to all the legal requirements under the law. That there is no place in the said letter that states that his land is on a road reserve neither did he receive any notification or letters from the 6th Respondent to the effect that his land was situated in a road reserve. That he successfully applied for the approvals for the construction of the first three floors to NEMA (5th Respondent) and the said request was approved on the 22nd January 2016. That he applied to all relevant authorities including the 5th Respondent for approvals for the construction of the extension of the 4th to 6th floor and fully complying with the provision of the Environmental management and coordination act.
That the Building Code as published by the National Construction Authority under paragraph 16 stipulates that where the width of an existing road is in front of a new building is less than 6 meters then part of the building shall be within 6 meters from the center line of the road. That the land having been surveyed, the beacons were in line with the physical planning requirements as issued by the County Government as per the Physical Planning and land Use Act. That the said construction is on a surveyed land and the Constitution of Kenya 2010 under Article 40 that as a citizen he has the protection of the law to own property and that further the protection is extend by virtue of Article 64 of the Constitution of Kenya that offers protection to private land.
This court has considered the application and submissions therein. The Petitioner in this matter seeks both a prohibitory injunction and a mandatory injunction as seen in the prayers above. There is a distinction between the prohibitory injunction as envisaged in the “Locus Classicus” case of Giella vs Cassman Brown, 1973 E.A. Page 358 and a Mandatory Injunction. In the case of Shepard Homes vs Sandham (1970) 3 WLR page 356 Case in which Megarry J as he then was stated follows;
“Whereas a Prohibitory Injunction merely requires abstention from acting, a Mandatory Injunction requires the taking of positive steps, and may require the dismantling or destruction of something already erected, or constructed. This will result in a consequent waste of time, money and materials. If it is ultimately established that the Defendant was entitled to retain the erection”.
The applicant states that the 1st respondent illegally and without statutory approvals and registration, extended four (4) floors on top of the previously constructed three (3) floors on a building in Plot No. 1417 Mwembelegeza scheme. That the 3rd respondent (National Construction Authority NCA) on 22nd November 2021 vide Order no. S/No. 111435 suspended further construction works on the building but the 1st respondent defied the said order and continued with construction activities. The applicant has attached correspondence to that effect. There is also a claim that the building is on a road reserve.
The 1st respondent insists that he obtained all the relevant approvals to conduct the construction That he has complied to all the legal requirements under the law. That there is no place in the said letter that states that his land is on a road reserve neither did he receive any notification or letters from the 6th Respondent to the effect that his land was situated in a road reserve. The 1st respondent has attached an approval for the extension of the 4th, 5th and 6th floors on the said suit property from the County Government of Mombasa, a letter from the National Construction Authority lifting the suspension dated 27th September 2023 and a letter from NEMA approving the proposed extension.
The 4th and 8th respondents submitted that this court does not have jurisdiction to entertain the matter and it should have been referred to the County Physical and Land use Planning Liaison Committee as per section 61(3) of the Physical and Land Use Planning Act 2019 (PLUPA). That this application should be dismissed and the applicant be directed to adhere to procedure laid down in that Act. I find that the 4th and 8th Respondents have raised a preliminary objection in their submissions on the issue of jurisdiction. According to the Black Law Dictionary a Preliminary Objection is defined as being:
“In case before the tribunal, an objection that if upheld, would render further proceeding before the tribunal impossible or unnecessary…….”
The above legal preposition has been made graphically clear in the now famous case of Mukisa Biscuits Manufacturing Co. Ltd vs West End Distributors Ltd. (1969) E.A. 696. Where Lord Charles Newbold. held that a proper preliminary objection constitutes a pure point of law. The Learned Judge then held that;
“The first matter relates to the increasing practice of raising points, which should be argued in the normal manner, quite improperly by way of Preliminary objection. A preliminary Objection is in the nature of what used to be a demurer it raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought in the exercise of judicial discretion. The improper raising of points by way of Preliminary objection does nothing but unnecessarily increase costs and, on occasion, confuse the issue. The improper practice should stop”
I find that jurisdiction is a pure point of law and will consider the same first. The centrality of the concept of jurisdiction in our civil disputes adjudication was captured by Nyarangi JA in the case of Owners of Motor Vessel ‘Lilian S’ vs Caltex Oil (Kenya) Ltd (1989) 1 KLR in the following words;
“ I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it at the moment it holds the opinion that it is without jurisdiction.”
The Supreme Court of Kenya outlined the importance of the concept of jurisdiction in the case of Samuel Kamau Macharia & another vs Kenya Commercial Bank Limited & 2 others (2012) eKLR in the following words;
“A court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other
written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submissions that the issue as to whether a court of law has jurisdiction to entertain a matter before it is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the court cannot entertain any proceedings. This court dealt with the question of jurisdiction extensively in In the Matter of Interim Independent Electoral Commission (Applicant), Constitution Application Number 2 of 2011. Where the Constitution exhaustively provides for the jurisdiction of a court of law, the court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon parliament to set the jurisdiction of a court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.”
The jurisdiction of this court to hear and determine disputes relating to the environment and the use and occupation of and title to land as provided for under Article 162(2) (b) of the Constitution of Kenya, 2010 and at Section 13 of the Environment and Land Court Act, 2011. The said Section 13 provides as follows:
13. Jurisdiction of the Court
(1) The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2) (b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land.
(2) In exercise of its jurisdiction under Article 162(2) (b) of the Constitution, the Court shall have power to hear and determine disputes—
(a) relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;
(b) relating to compulsory acquisition of land;
(c) relating to land administration and management;
(d) relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and
(e) any other dispute relating to environment and land.
In the case of Adega & 2 others vs Kibos Distillers Limited & 5 others (Petition 3 of 2020) (2020) KESC 36 (KLR), the Supreme Court held that;
“Judicial abstention, as with judicial restraint, is a doctrine not founded in constitutional or statutory provisions, but one that has been established through common law practice. It provides that a Court, though it may be vested with the requisite and sweeping jurisdiction to hear and determine certain issues as may be presented before it for adjudication, should nonetheless exercise restraint or refrain itself from making such determination, if there would be other appropriate legislatively mandated institutions and mechanism.”
There is a general interpretation of the law to the effect that where Parliament has, through statute, established other primary adjudicatory bodies, this court should let those primary adjudicatory bodies exercise their primary jurisdiction, and this court should only exercise appellate jurisdiction. Indeed, this was the principle emphasized by the Court of Appeal in Kibos Distillers Limited & 4 others vs Benson Ambuti & 3 others (2020) eKLR. The Supreme Court, while declining to grant leave for an appeal to the apex court, agreed with the Court of Appeal on this interpretation of the law in Benson Ambuti Adega vs Kibos Distillers Ltd & 5 others (2020) eKLR. There is similarly an accepted general interpretation of the above framework to the effect that because the Environment and Land Court Act grants this court both original and appellate jurisdiction in disputes relating to environment and the use, occupation of and title to land, whenever the other institutions vested with primary jurisdiction to adjudicate similar disputes are, for one reason or the other, unable to sit, this court should be able to exercise its original jurisdiction in those circumstances. The circumstances include a situation where a liaison committee or a tribunal is, for one reason or the other, unable to sit and discharge its adjudicatory functions.
This petition is based on the enforcement notice issued by the 4th respondent. Further, the 1st respondent challenges the decision revoking their development permission and requiring them to under go a fresh inspection and development permission. It seeks to invalidate the enforcement notice and the impugned decision.
Section 72(3) and (4) of the PLUPA contains the following framework on adjudication of disputes relating to enforcement notices:
“(3) Where a person on whom an enforcement notice has been served is
aggrieved by that notice, that person may appeal to the relevant County Physical and Land Use Planning Liaison Committee within fourteen days of being served with the notice and the committee shall hear and determine the appeal within thirty days of the appeal being filed.
(4) Any party aggrieved with the determination of the county physical and land use planning liaison committee may appeal to the court only on a matter of law and the court shall hear and determine the appeal within thirty days.”
Similarly, Section 61(3) and (4) of the PLUPA contains the following framework on adjudication of disputes relating to decisions made in relation to development permissions:
“(3) An applicant or an interested party that is aggrieved by the decision of a county executive committee member regarding an application for development permission may appeal against that decision to the County Physical and Land Use Planning Liaison Committee within fourteen days of the decision by the county executive committee member and that committee shall hear and determine the appeal within fourteen days of the appeal being filed.
(4) An applicant or an interested party who files an appeal under sub-section (3) and who is aggrieved by the decision of the committee may appeal against that decision to the Environment and Land Court.”
Having reflected on the gist of the dispute in this petition vis-à-vis the above legal framework on primary adjudication of disputes relating to enforcement notices and development permissions, I entirely agree with the 4th and 8th respondents that this dispute has been placed before this court prematurely. In normal circumstances the petitioner ought to exhaust the primary dispute adjudication mechanism provided under the PLUPA before invoking the jurisdiction of this court. Be that as it may, this court takes judicial notice and it is a finding of fact that for one reason or another Mombasa County does not have a Liaison Committee and /or the same has not been operationalised and is not sitting. Being a court of original and appellate jurisdiction in disputes relating to environment and the use, occupation of and title to land, this court will proceed to entertain the matter as this is the current available avenue in the circumstances to the litigants. The preliminary objection is therefore not sustainable and is overruled.
With regard to the grant of a prohibitory/mandatory injunction as per prayed for in the application, the test is correctly set out in Vol. 24 Halsbury's Laws of England 4th Edition, Paragraph 98, thus;
"A mandatory injunction can be granted on an interlocutory application as well as at the hearing, but, in the absence of special circumstances it will not normally be granted. However, if the case is clear and one which the court thinks it ought to be decided at once, or if the act done is a simple and summary one which can be easily remedied, or if the defendant attempted to steal a march on the plaintiff... a mandatory injunction will be granted on an interlocutory application". Also in Locabail International Finance Ltd -v- Agroexport and Others [1986] 1 All ER 901, at page 901,it was stated:
"A mandatory injunction ought not to be granted on an interlocutory application in the absence of special circumstances, and then only in clear cases either where the court thought that the matter ought to be decided at once or where the injunction was directed at a simple and summary act which could be easily remedied or where the defendant had attempted to steal a march on the plaintiff. Moreover, before granting a mandatory injunction the court had to feel a high degree of assurance that at the trial it would appear that the injunction had rightly been granted, that being a different and higher standard than was required for a prohibitory injunction".
Clearly, the applicant in this case wants inter alia a mandatory interlocutory injunction and in order to succeed, one needs to demonstrate special circumstances and an exceptionally strong case. In the case of Kamau Mucuha vs Ripples Limited (1993) eKLR, Hancox CJ, stated as follows on the issue of grant of mandatory injunctions at an interlocutory stage;
“Speaking for myself, I entirely agree that, historically, the principles laid down with regard to temporary mandatory injunctions are that they will only be granted exceptionally and in the clearest cases. In Canadian Pacific Railway v Gaud [1949] 2KB,Cohln LJ said at page 249:
“I entirely agree………………………….. that the granting of a mandatory injunction on interlocutory relief is a very exceptional form of relief to grant, but it can be granted.”
In the case of Shepherd Homes vs Sandham (1970) 3 WLR 348) the court held that;
“ …… .... if a mandatory injunction is granted on motion, there will normally be no question of granting a further mandatory injunction at the trial; what is done is done and the plaintiff has, on motion, obtained once and for all the demolition or destruction that he seeks. Where an injunction is prohibitory, however, there will often still be a question at the trial whether the injunction should be dissolved or contained.”
I am alive to the above principles in granting a mandatory injunction. The applicant seeks an order to stop construction and that all tenants and any other person not mentioned in this suit using the building for businesses and or residing in the building on plot no. 1417 Mwembelegeza scheme to vacate immediately. Be that as it may, it seems that these tenants were already in the developed part of the building and the 1st respondent was trying to develop additional floors. The Applicant stated that on 7th January 2022 the 4th respondent (National Building Inspectorate - NBI) visited the construction site and conducted structural integrity test and upon their findings, ordered that the tenants operating businesses on the ground floor of the said building vacate for safety concerns. During the pendency of this case the 1st Respondent filed another case ELC Case No. E015 of 2024. In that matter he has sued the 2nd, 3rd and 4th Respondents herein. The 1st Respondent admits receiving a notice dated 4th April 2024 to vacate the building as it is structurally unsafe and unfit for human habitation so as to pave way for additional structural integrity tests. I find that this is a dangerous state of affairs and the experts have already given their opinion against occupation and further construction. I find that this establishes a prima facie case and coming from the experts it would be unsafe to continue habitation and construction of the suit property as it would cause great danger to the public. These are indeed special circumstances. There is no evidence that this notice has been lifted and it still stands. The issue of the property sitting on a road reserve still remains unanswered as well. I find that the application is merited and I grant the following orders;
1. That pending the hearing and determination of this petition, a prohibitory injunction is issued prohibiting the respondents themselves or by their agents or their staff or their tenants from developing or constructing and or the building on Plot No. 1417 Mwembelegeza scheme in Mombasa.
2. That pending the hearing and determination of this petition, a mandatory injunction is issued to all tenants using the building for businesses and or residing in the building on plot no. 1417 Mwembelegeza scheme to vacate as per the notice issued by the County Government of Mombasa dated 4th April 2024.
3. That the cost of this application be in the cause.
It is so ordered.