https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4652

Kairanga (Suing as the Chairman of Golf View Esate Residents Association) v Karimi & another (Land Case E020 of 2026) [2026] KEELC 4652 (KLR) (16 July 2026) (Ruling) Neutral citation: [2026] KEELC 4652 (KLR) Republic of Kenya In the Environment and Land Court at Muranga Land Case E020 of 2026 MN Gicheru, J July 16, 2026 Between Benson Ngure Kairanga (Suing as the Chairman of Golf View Esate Residents Association) Plaintiff and Julius Karimi 1st Defendant Lydiah Karimi 2nd Defendant Ruling 1.This ruling is on the notice of motion dated 24-3-2026. The motion which is by the Plaintiff is brought under Orders 40 rule 1 and 51 rule 1 of the Civil Procedure Rules 2010, Sections 1A, 1B and 3A of the Civil Procedure Act, Section 13 of the Environment and Land Court Act, Articles 42, 60 and 70 of the Constitution of Kenya. 2.The motion seeks the following residual orders.1.That pending the hearing and determination of this suit, an order of temporary injunction does issue restraining the Defendants/Respondents their agents and or assigns or any of their representatives from continuing construction, developing poultry/goat pens/livestock structures, and any activity on Plot numbers Samuru/Mwitingiri/Block 1(Kariua)/123 and 124. 2.The OCS Samuru Police Station to enforce compliance. 3.That the costs of this application be borne by the 1st and 2nd Respondents.Prayers 1 and 2 were allowed on 9-4-2026. 3.The motion is based on nine(9) grounds and is supported by the affidavit of the Plaintiff dated 24-3-2026. The gist of the grounds and the affidavit is as follows. Firstly, the Defendants are undertaking unapproved development contrary to Sections 57,58, 72 and 75 of the Physical Land Use and Planning Act, 2019 and the County Government Act 2012. The County Government of Murang’a issued the 1st and 2nd Defendants with an enforcement notice effective 29-9-2025. This notice remains binding and unchallenged. The Defendants have acted in bad faith in continuing with the forbidden construction despite regulatory prohibitions, ongoing disputes and prior complaints and enforcement action. Secondly, the Plaintiff’s constitution does not contain internal dispute resolution mechanisms. Thirdly, the development being undertaken by the Defendants constitutes illegal development, nuisance and environmental harm. Fourthly, the Defendants construction has blocked the natural drainage channels causing water logging and nuisance within the estate. 4.The Plaintiff filed a second notice of motion dated 9-4-2026. It is brought under the same provisions as the earlier motion. Prayer 2 of the latter motion is similar to prayer 3 of the former motion. Prayers 5 and 6 of the latter motion are similar to prayers 4 and 5 of the former motion. The only new prayers are numbers 3 and 4. They read as follows.3.That pending the hearing and determination of this suit, the Plaintiff seeks further a mandatory order compelling the Defendants to cease use of the constructed structures and to demolish and remove the goat pen and any related developments erected without lawful approval and to restore the suit property to its residential condition on Plot Samuru/Mwitingiri/Block 1(Kariua)/123 and 124.4.That pending the hearing and determination of this suit, the Plaintiff also seeks an order restraining participation exercise of the already constructed development, on the basis that such a process is unlawful, irregular and an abuse of statutory procedures. 5.The additional grounds for seeking the additional prayers are as follows. Firstly, the Application is grounded on the doctrine of his pendens, which prohibits any alteration of the property during the pendency of litigation. Secondly, the 1st and 2nd Defendants have undertaken illegal development without the necessary approvals, have acted in breach of express lease conditions restricting the use of the property to a single private dwelling, have continued construction in defiance of regulatory authorities and the pendency of this suit and have caused nuisance and environmental harm to neighbouring residents. 6.The Defendants through counsel on record raised the following points of law in their notice of preliminary objection dated 21-4-2026.a.That is the suit is incompetent ab initio for having been instituted on a representative capacity without leave of court under Order 1 rules 8 and 13 of the Civil Procedure Rules thereby depriving the Plaintiff of locus standi.b.The Plaint dated 9-4-2026 is a nullity for having been filed in a subsisting suit without leave and without amendment of the Plaint dated 24-3-26 contrary to Order 8 of the Civil Procedure Rules.c.The application dated 9-4-2026 is incompetent for being founded on an invalid plaint and for seeking the same orders as the one dated 24-3-3036 thus constituting an abuse of the Court process.d.The multiplicity of plaints and applications within the same suit offends the law and renders the proceedings fatally defective.The Defendants pray that –i.The preliminary objection be upheld.ii.The entire suit be struck out for want of locus.iii.The plaint dated 9-4-2026 and the application dated 9-4-2026 be struck out with costs. 7.Counsel for the parties filed written submissions dated 5-5-2026 and 25-5-2026. The Plaintiff framed the following issues.i.Whether the Plaintiff has established a case for an order of injunction.ii.Whether a mandatory injunction is warranted.On the other hand the Defendants were able to identify the following issues.a.Whether the suit is incompetent ab initio for having been instituted in a representative capacity without leave of court and without compliance with Order 1 rules 8 and 13 of the Civil Procedure Rules.b.Whether the plaint dated 9-4-2026 is a nullity for having been filed in a subsisting sit without leave and without amendment of the plaint dated 24-3-2026 contrary to Order 8 of the Civil Procedure Rules.c.Whether the application dated 9-4-2026 is incompetent for being founded on an invalid plaint and for seeking the same orders as the one dated 25-3-3036.d.Whether the multiplicity of plaints and applications within the same suit offends the law and renders the proceedings fatally defective. 8.I have carefully considered the two applications including the grounds, the affidavits dated 24-3-2026 and 9-4-2026, the preliminary objection dated 21-4-2026, the written submissions, the issues raised therein and the law cited by both sides. I find as follows on the issues. 9.Regarding the Defendants’ fourth issue, I find that there is no multiplicity of suits. As of yesterday, the 15-7-2026, there was only one plaint on the record, the one dated 24-3-2026. There is no other plaint on record. If the Defendants were served with an amended plaint, it did not reach the record. The Defendants fourth issue therefore fails. The same fate is suffered by the second and third of the Defendants’ issues because they are based on the alleged second plaint which we have said is not on record.Even if the Plaintiff had filed an amended plaint, it would still have been within the law because Order 8 rule 1(1) of the Civil Procedure Rules allows the amendment of any of the pleadings once at any time before the pleadings are closed. In this case, the pleadings have not closed. The Defendants have not filed any defence. All that they have done is file a notice of preliminary objection. The Plaintiff could procedurally and lawfully amend its plaint without seeking leave of court. 10.Looking at the Defendant’s last issue, it is my finding that this being a suit seeking to enforce an Environmental right, then Benson Ngure Kairanga whether he brings the action in his own capacity or in the capacity of Chairman of Gold View Estate Residents’ Association, has the Constitutional Right to apply to the Court for redress even without the written authority of the members of the association. Article 70(1) of the Constitution allows any person to apply to a court for redress where the right to a clean and healthy environment is denied, violated, infringed or threatened. Under Article 2(4) of the Constitution, any law that is inconsistent with the Constitution is void. What has been given by the Constitution cannot be taken away by statute or rules and regulations.The Defendants have not filed any defence, witness statements or documents. Their preliminary objection is not anchored on any material of their own. The right to a fair hearing is entrenched in Article 50(1) of the Constitution. It provides as follows.“Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.”It has been held in the case of D.T. Dobie and Co. Kenya Ltd vs. Muchina as follows.“The court should aim at sustaining rather than terminating a suit. A suit should only be struck out if it is so weak that it is beyond redemption and incurable by amendment. As long as a suit can be injected with life by amendment, it should not be struck out. No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action and is so weak as to be …incurable by amendment. ’’If this Court were to strike out the pleadings as invited by the Defendants to do, it would be saying that the Plaintiff’s right to a clean and healthy environment does not matter and worse that the Plaintiff case should not be heard at all and the Plaintiff cannot amend its pleadings. That would neither be fair nor just. 11.Coming now to the Plaintiff’s issue, it is my finding that the prayer for demolition of the allegedly illegal constructed livestock structures by the Defendants should await a final determination of the dispute. However, if it is proved that the structures have blocked the natural drainage channels causing water logging and nuisance within the estate and the Defendants are heard and their explanation is not satisfactory, the court could issue approximate orders to open up the said drainage, even before the suit is concluded. A mandatory injunction should not issue except in the clearest of cases and since this case is still at the interlocutory stage, it is not appropriate to issue an order for demolition. 12.This being an application for injunction, in find that the principles in the case of Giella Vs Cassman Brown Ltd and Another [1973] EA 358 are applicable.I should consider the third principle of balance of convenience because the other two principles may be contentious once the Defendants file their defence. At the moment however all the evidence by the Plaintiff remains uncontroverted because the Defendants have not filed any replying affidavit. The construction of the livestock structures on the suit premises should not continue.In conclusion and for the reasons already given, I allow the notice of motion dated 24-3-2026 in terms of prayers 3 and 4. Costs on the cause. DATED, SIGNED AND DELIVERED VIRTUALLY AT MURANG’A THIS 16TH DAY OF JULY, 2026.M.N. GICHERU JUDGE.Delivered online in the presence of; -Court Assistants – AntonyPlaintiff’s Counsel – Miss NyawiraDefendant’s counsel – Miss Wenene