https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5287

REPUBLIC OF KENYA IN THE ENVIRONMENT & LAND COURT AT NAIROBI ELC EPCC NO. E0I9 OF 2025 \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ EDITH MUSSUKUYA - APPLICANT VS PAUL MUTUNGA MUSOI - 1ST RESPONDENT NAIROBI COUNTY GOVERNMENT - 2ND RESPONDENT NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY - 3RD RESPONDENT NATIONAL CONSTRUCTION AUTHORITY - 4TH RESPONDENT RULING (In respect of the Plaintiff’s application dated 26/5/2026) 1. With reference to the Notice of Motion dated 26/5/2026, brought pursuant to the provisions of Articles 40 and 159 of the Constitution of Kenya, 2010; Section 57 and 72 of the Physical and Land Use Planning Act, 2019; Section 3 and 58 of the Environment Management and Coordination Act (EMCA) 1999; the Nairobi Zoning Regulations; Sections 1A, 1B, 3, 3A and 63 of the Civil Procedure Act; as well as Order 40 Rule 1, Order 51 Rules 1 and 3 of the Civil Procedure Rules 2010. Substantively, the Plaintiff prays for orders that; 2. Pending the hearing and determination of the main suit, a temporary injunction do issue restraining the 1st Respondent and/or his servants or agents from continuing with any construction and/or commercial activity on any part of L.R. No. 1/764, and/or placing any materials in the shared entrance and common area adjoining the Applicant’s premises. 3. Pending the hearing and determination of the main suit, a mandatory order do issue compelling the 1st Respondent and/or his servants or agents to remove all construction debris, commercial equipment, and business-related materials from the shared entrance and common area. 4. A mandatory order do issue compelling the 2nd, 3rd and 4th Respondents to assess and ensure the 1st Respondent’s compliance with the relevant laws. 5. The costs of this application be provided for. 6. The Motion is based on the grounds on the face of it and is further supported by the Plaintiff's affidavit of even date. She deposed that she is the registered proprietor of Maisonette No. 4 on L.R. No. 1/764, Nairobi, which forms part of a larger property comprising four maisonettes under a single mother title. She averred that her premises share a common gate and entrance with Maisonette No. 3, owned by the 1st Respondent. 7. The deponent deposes that the 1st Respondent undertook construction and commenced a commercial carpet-cleaning business on the residential premises without her consent. That the said business has caused obstruction, environmental pollution, and excessive noise. It further contends that the Respondent's activities have encroached upon shared spaces, blocked parking access, and infringed upon the deponent's privacy and quiet enjoyment of their property. 8. The deponent avers that the 1st Respondent has unlawfully enclosed a portion of the common area with iron sheets, thereby obstructing access to the shared space, and has constructed a structure over the manhole/maintenance chamber without the requisite adjustments, resulting in blockage of sewer lines and interference with essential sanitation services. Further, that wastewater from the 1st Respondent’s carpet-cleaning business is discharged directly in front of her premises, causing persistent dampness, hindering access, and creating a health hazard. She contends that these actions have further compromised the security of the premises by limiting the guard’s view of entry and exit points and exposing vehicles and property to risk. That it has also increased the influx of unknown persons onto the premises, thus aggravating the threat. 9. The Plaintiff contends that, despite reporting these grievances to the 2nd, 3rd, and 4th Respondents, no effective remedial action has been taken. Although the 4th Respondent issued a stop order in October 2025 concerning the shared gate, it has failed to enforce its directive, and the illegal activities have continued unabated. The deponent states that she and her family, together with visitors, continue to suffer prejudice from the 1st Respondent’s actions, which have disrupted the peaceful occupation and enjoyment of the residential premises. She therefore prays that the order sought be granted to restore the premises to their original residential use. 10. The 1st Defendant/Respondent contends in his Replying Affidavit dated 13/7/2026 that the motion is misconceived, baseless, and founded on falsehoods. He avers that he operates a small home-based carpet and cleaning service called "Infinite, the Home Clean Experts", from his property. He further asserts that upon acquiring the property, which appeared deserted, he undertook improvements, including paving the entrance with cabros and enhancing the general condition of the premises. He further asserts that all maintenance works were carried out with the requisite approvals and authority of the county government, and in compliance with all imposed conditions, as evidenced by a letter dated 28/8/2025. 11. The Respondent maintains that his actions are lawful and do not contravene any applicable zoning, physical planning, or land use regulations. He cites Section 13 of the Nairobi City County Regularisation of Unauthorised Developments Act 2025, which provides for the regularisation of developments, including ground coverage, built-up area, and changes of use or extensions thereof. The 1st Defendant argues that he complied with the county’s conditions for regularisation and has submitted an application for a change of use, which is currently pending approval, as evidenced by a compliance update letter dated 16/1/2026. He deposes that a public notice was published in a newspaper of nationwide circulation. 12. The deponent asserts that he has taken steps to mitigate noise, including restricting carpet cleaning to daytime hours and submitting a noise reduction analysis report. He contends that his operations have not substantially or unreasonably interfered with the neighbourhood, nor have they violated any law, and denies any encroachment or unlawful fencing of common areas. He argues that the applicant’s complaints are exaggerated, speculative, and unsubstantiated, intended to harass him and stifle his lawful livelihood. He asserts that any alleged inconvenience is minor and insufficient to constitute a legal nuisance. 13. The Plaintiff filed a Further Affidavit, sworn on 22/7/2026, contending that the 1st Respondent’s business constitutes a clear violation of applicable zoning, physical planning, and land use laws. This contention is corroborated by the 1st Respondent's own admission and by photographic evidence demonstrating extensive operations, including signage, industrial machinery, and continuous wastewater discharge onto common areas. 14. Challenging the validity of the alleged Renovation Permit exhibited by the 1st Respondent, the deponent avers that it was issued to "Discovery Media Limited" rather than to the 1st Respondent. She further avers that, in any case, the permit authorised only internal maintenance works within the premises and did not permit alterations or a change of user. She further avers that, in any event, the permit expired on or about 28/11/2025. Therefore, all works and commercial activities conducted after that date are unauthorised and unlawful. 15. The deponent refutes the 1st Respondent's claims regarding noise mitigation, pointing to the acoustic report exhibited by the 1st Respondent himself, which records noise levels of 91 dB at the machine point and 74 dB at the front gate, arguing that these levels exceed permissible legal limits. The deponent further relies on the 1st Respondent's own letter of 16/1/2026, which acknowledges that soundproofing works were only partial and that a further ninety days are required to complete, thereby confirming that the noise nuisance remains unresolved. 16. The Applicant reiterates her assertions that the 1st Respondent has encroached upon common areas by fencing them off with iron sheets erected over the shared manhole and maintenance chamber, resulting in sewage backflow and causing wastewater to flow directly towards her premises, thereby creating dampness and health hazards. She maintains that her complaints constitute a genuine response to an ongoing unlawful commercial activity that threatens health, safety, and property rights, for which damages would be an inadequate remedy. 17. The court directed that the application be canvassed by way of submissions. Both parties complied. The Plaintiff/Applicant’s submissions are dated 22/7/2026, whereas the 1st Defendant/Respondent’s submissions are dated 25/7/2026. The court has read and considered the submissions in reaching its determination. **Analysis and Determination** 1. Having considered the application, the rival affidavits and the respective submissions thereof, the following are the issues for determination before this court. 2. Whether the prayer for temporary injunction is merited. 3. Whether the Plaintiff/Applicant should be granted orders of Mandatory injunction at the interlocutory stage. **Whether the prayer for temporary injunction is merited** 1. The law on grant of injunctions is fairly well settled by the locus classicus of Giella v Cassman Brown [1973] EA in which the courts held that the applicant must establish that they have a prima facie case with a probability of success; demonstrate that the applicant will suffer irreparable loss which would not be adequately compensated by an award of damages and lastly, if the court is in doubt on the above two requirements, decide the application on a balance of convenience. 2. The first issue for determination is whether the Applicant has established that he has a prima facie case with a probability of success. A prima facie case was defined by the Court of Appeal in Mrao Ltd –vs- First American Bank of Kenya Ltd & 2 Others (2003) eKLR as follows; “a prima facie case in a civil application includes but is not confined to a genuine and arguable case”. It is a case which, on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.” 1. It is not in dispute that the Plaintiff is the registered proprietor of Maisonette No.4 whereas the 1st Defendant is the owner of Maisonette 3, both situated on LR No. 1/764. It is also undisputed that the two units share a common gate and entrance. 2. The applicant’s case is that the 1st Defendant has set up a temporary carpet-cleaning business on the residential premises without obtaining a change of use to that effect. The applicant alleges that the business has caused obstruction, environmental pollution, and excessive noise. It further contends that the Respondent's activities have encroached upon shared areas, blocked parking access, and infringed upon the deponent's privacy and quiet enjoyment of their property. 3. The 1st Defendant, on the other hand, confirms that, in fact, he has yet to be issued with a change of user, though his application for the same is pending approval before the 2nd Defendant herein. The 1st Respondent avers that he operates a small home-based carpet and cleaning service, known as "Infinite, the Home Clean Experts", from his property. He maintains that his actions are lawful and do not contravene any applicable zoning, physical planning, or land use regulations. He cites Section 13 of the Nairobi City County Regularization of Unauthorized Developments Act 2025, which provides for the regularization of developments, including ground coverage, built-up area, and change of user or extension thereof. He avers that he has taken steps to mitigate noise, including restricting carpet cleaning to daytime hours and submitting a noise reduction analysis report. 4. It is evident that the 1st Defendant is operating a carpet-cleaning business in a residential area. Whether this is lawful is an issue for determination at trial. However, I note that the Applicant has raised legitimate concerns about the business, including noise pollution and blocked access to her property, which are affecting her right to quiet possession. On the basis of the material on record, I find that the Plaintiff/Applicant has established a prima facie case with a probability of success. 5. As regards the issue whether the Applicant will suffer irreparable harm which cannot be adequately compensated by award of damages, the Applicant must demonstrate that it is a harm that cannot be quantified in monetary terms or cannot be cured. 6. The Court of Appeal in Nguruman Limited Vs Bonde Nielsen & 2 Others (2014) eKLR held that: - “On the second factor, the Applicant must establish that he might otherwise suffer irreparable injury which cannot be adequately remedied by damages in the absence of an injunction, is a threshold requirement and the burden is on the Applicant to demonstrate prima facie, the nature and extent of the injury. Speculative injury will not do; there must be more than an unfounded fear or apprehension on the part of the Applicant. The equitable remedy of temporary injunction is issued solely to prevent grave and irreparable injury; that is injury that is actual, substantial and demonstrable; injury that cannot adequately be compensated by an award of damages. An injury is irreparable where there is no stand by which their amount can be measured with reasonable accuracy or the injury or harm is such a nature that monetary compensation of whatever amount, will never be adequate remedy.” 1. In the case of Justus Irungu Githae & 12 Others v Attorney General & 4 others [2016] eKLR, the court held that injury which was continuous in nature could not be quantified or assessed in terms of damages. 2. The Applicant has submitted that she stands to suffer irreparable harm and has produced photographic evidence demonstrating wastewater flowing into her entrance, alleged sewer interference, blocked access, security concerns, as well as the issue of sewer interference likely to cause a health hazard and security risk occasioned by the relocation of the guard house and the influx of people in and out of the premises. These are continuous injuries which cannot be quantified for an award of damages to suffice. The court is therefore convinced that the Applicant stands to suffer irreparable harm that cannot be compensated by way of damages. 3. On the issue of the balance of convenience, the court has to weigh the hardship to be borne by the Applicant if the injunction is refused against the hardship to be borne by the Respondent if the injunction is granted. Looking at the evidence presented by the parties herein, the balance of convenience favours granting the interim injunction. **Whether the Plaintiff/Applicant should be granted orders of Mandatory injunction at the interlocutory stage.** 1. The applicant has sought an order for mandatory injunction against the 1st respondent, compelling him to remove all construction debris, commercial equipment, and business-related materials from the shared entrance and common area. 2. In the case of Locabail International Finance Ltd –v- Agro – Export & Another (1986) I ALLER 901 the court stated that: “A mandatory injunction ought not 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 at a simple and summary act which could easily be remedied or where the defendant had attempted to steal a match on the plaintiff. Moreover, before granting a mandatory Injunction the court had to feel a high sense of assurance that at the end of the trial it would appear that the injunction had rightly been granted, that being a different and higher standard that required for a prohibitory injunction.” 1. It should also be noted that courts have been reluctant to grant mandatory injunctions at the interlocutory stage, as held in the case of Nation Media Group & 2 others vs John Harun Mwau (2014) eKLR, where the Court of Appeal stated: “It is trite law that for an interlocutory mandatory injunction to issue an applicant must demonstrate existence of special circumstance. A different standard higher than that in prohibitory injunction is required before an interlocutory mandatory injunction is granted. Besides existence of exceptional and special circumstances must be demonstrated as we have stated a temporary injunction can only be granted in exceptional and in the clearest of cases.” 1. If the court issues the orders as framed, that will be tantamount to closing down the 1st Respondent’s business before hearing evidence from the parties at trial. In the event the Plaintiff’s case is dismissed after trial, the court would not have done justice but injustice in its discretion to grant or not to grant a mandatory injunction. 2. I therefore find that the applicant has not demonstrated any special circumstances warranting the grant of a mandatory injunction. The matter shall proceed to trial for the parties to adduce evidence, and the matter shall subsequently be determined on its merits. 3. Regarding the prayer for a mandatory injunction compelling the 2nd, 3rd and 4th Respondents to assess and ensure the 1st Respondent’s compliance with the relevant laws, the said order cannot be issued at this stage. The Respondents will have an opportunity to adduce evidence at trial confirming the 1st Respondent’s compliance with the necessary laws. In any case, the 2nd, 3rd and 4th Respondents have their own enforcement mechanisms and are at liberty to act accordingly in the event of non-compliance. 4. In light of the foregoing, I find that the Plaintiff’s application is partially allowed in the following terms; 5. A temporary injunction is hereby issued restraining the 1st Respondent and/or his servants or agents from continuing any construction and/or commercial activity on any part of L.R. No. 1/764 and from placing any materials in the shared entrance and common area adjoining the Applicant’s premises pending the hearing and determination of this suit. 6. The Plaintiff/Applicant shall have costs of the application. 7. It is so ordered. **DELIVERED, DATED AND SIGNED AT NAIROBI THIS 14TH DAY OF AUGUST 2026 VIA MICROSOFT TEAMS.** **J G KEMEI** **JUDGE** **Delivered virtually in the presence of:** 1. Ms Small HB for Mr Wanyonyi for the Plaintiff 2. Ms Muthui HB Munyenze for 1st Respondent 3. N/A for the 2nd -4th Respondent 4. C/A – Mr Amos