[2018] KEELC 2105 (KLR)
The court found that the Plaintiffs raised serious issues regarding the Defendants' compliance with statutory requirements for change of user and environmental approvals. The proximity of the proposed school toilets to the Plaintiffs' kitchens and living spaces raised a credible risk of nuisance and interference...
Source-derived case information.
- Citation
- [2018] KEELC 2105 (KLR)
- Parties
- Plaintiff: Andrew Omboto; Plaintiff: Frederick Osiro Omondi; Plaintiff: Brenda Sabwa; Plaintiff: Mike Ngweno Baraza; Defendant: Mwalimu National Investment Co-operative Sacco Limited; Defendant: Board of Directors Mwanicos Academy
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 284 of 2018
- Procedural Posture
- Environment and Land Case / Ruling on Interlocutory Application for Conservatory Order
- Outcome
- interlocutory conservatory order granted
- Judges
- AK Bor
- Legal Topics
- Change of User, Planning Permission, Nuisance, Environmental Impact, Residential Development, Educational Institutions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Andrew Omboto
Plaintiff
Frederick Osiro Omondi
Plaintiff
Brenda Sabwa
Plaintiff
Mike Ngweno Baraza
Plaintiff
Mwalimu National Investment Co-operative Sacco Limited
Defendant
Board of Directors Mwanicos Academy
Defendant
Procedural Posture
Environment and Land Case / Ruling on Interlocutory Application for Conservatory Order
Legal Issues
- 1 Whether the Defendants obtained the necessary approvals for change of user from residential to educational purposes.
- 2 Whether the construction of school facilities adjacent to the Plaintiffs' residences constitutes a nuisance or infringes on their right to quiet enjoyment of property.
- 3 Whether a conservatory order should issue to restrain further construction pending determination of the suit.
Ratio Decidendi
The court found that the Plaintiffs raised serious issues regarding the Defendants' compliance with statutory requirements for change of user and environmental approvals. The proximity of the proposed school toilets to the Plaintiffs' kitchens and living spaces raised a credible risk of nuisance and interference with the Plaintiffs' right to quiet enjoyment of their property. The court determined that the Plaintiffs had established a prima facie case and that the balance of convenience favoured preserving the status quo pending a full trial. Consequently, the court granted a conservatory order restraining the Defendants from further construction on the suit property until the case is...
Court Disposition
interlocutory conservatory order granted
Orders
- Prayer 2 of the application dated 6/6/2018 is allowed; Defendants are restrained from further constructing buildings on L.R. No. Nairobi/Block 140/85 until the suit is heard and determined.
- Parties to set down the case for hearing within six months.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAIROBI
E.L.C. CASE NO. 284 OF 2018
ANDREW OMBOTO...........................................................1ST PLAINTIFF
FREDERICK OSIRO OMONDI........................................2ND PLAINTIFF
BRENDA SABWA................................................................3RD PLAINTIFF
MIKE NGWENO BARAZA................................................4TH PLAINTIFF
VERSUS
MWALIMU NATIONAL INVESTMENT
CO-OPERATIVE SACCO LIMITED.................................1ST DEFENDANT
BOARD OF DIRECTORS MWANICOS ACADEMY......2ND DEFENDANT
RULING
The Plaintiffs are proprietors and residents of various properties comprised in L.R. No. Nairobi/ Block 140/088/039, 140/088/034 and 140/088/033 in Nyayo Estate, located in Embakasi, Nairobi, which is a residential area. Through the application dated 6/6/2018, they seek a conservatory order to restrain the Defendants or their agents from further constructing the buildings on L.R. No. Nairobi/ Block 140/85 until this suit is heard and determined.
The application is made on the grounds that the Defendants’ are constructing a multi-storey building comprising classrooms and ablution facilities on their property which is adjacent to the Plaintiffs’ houses. The Plaintiffs contend that the Defendants failed to consult the residents of the adjoining plots and to obtain the necessary approvals for change of user of their land from residential to educational purposes.
The Plaintiffs attached copies of the documents evidencing the purchase of their houses from the National Social Security Fund together with correspondence exchanged with the Defendants in an attempt to resolve the matter.
The Defendants contend that they obtained approvals from the Ministry of Education, Science and Technology to run both a nursery and primary school on their land. They also aver that they duly applied for change of user of the land and put up a signboard at the site besides distributing questionnaires on the impact of their proposed development. They also advertised the change of user in two daily newspapers. The Defendants contend that they complied with the requirements of the National Environment Management Authority and the Physical Planning Act.
Parties made oral submissions. The Plaintiffs main concern is that the Defendants are not only constructing toilets which will be used by the students close to the Plaintiffs’ houses but that they face their kitchens. The use of the toilets by the students will result in odours that will make it uncomfortable for the Plaintiffs to live in and enjoy the use of their homes.
The court allows prayer 2 of the application dated 6/6/2018 and directs parties to set down the case for hearing within six months so that all the issues raised in the suit can be determined at a full trial. The costs of the application shall be in the cause.
Dated and delivered at Nairobi this 26th day of July 2018.
K. BOR
JUDGE
In the presence of: -
Mr. Omari for the Defendant
Mr. V. Owuor- Court Assistant
No appearance for the Plaintiffs