https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4193

Kimolo & 7 others (Suing as the Representatives of the Residents of the Airport View Estate) v Mwangangi & 4 others (Environment and Planning Civil Case E001 of 2025) [2026] KEELC 4193 (KLR) (7 July 2026) (Ruling) Neutral citation: [2026] KEELC 4193 (KLR) Republic of Kenya In the Environment and Land Court at Machakos Environment and Planning Civil Case E001 of 2025 NA Matheka, J July 7, 2026 Between Raphael Kimolo 1st Plaintiff Samuel Khamadi 2nd Plaintiff Stephen Kipanga 3rd Plaintiff Hellen Migunde 4th Plaintiff Pauline Malombe 5th Plaintiff Joseph Siekhwe 6th Plaintiff Amon Kinyanjui 7th Plaintiff Alphonce Kasimu 8th Plaintiff Suing as the Representatives of the Residents of the Airport View Estate and Alice Ndave Mwangangi 1st Defendant County Government of Machakos (Through the CEC Member for Lands) 2nd Defendant The County Physical Planner, Mavoko 3rd Defendant National Construction Authority 4th Defendant and Syokimau Residents Association Interested Party Ruling 1.The application is dated 21st August 2026 and is brought under Articles 22, 47, and 69 of the Constitution of Kenya, 2010; Sections 4, 5, and 6 of the Fair Administrative Action Act, 2016; Sections 55, 57, 58, 61, and 71 of the Physical and Land Use Planning Act, 2019; Order 40 Rules 1, 2, and 4 and Order 51 Rule 1 of the Civil Procedure Rules, 2010 seeking the following orders that:1.This application be certified as urgent and be heard ex parte in the first instance, and service thereof upon the Defendants/Respondents be dispensed with.2.Pending the hearing and determination of this application inter partes, a temporary injunction be issued restraining the 1st Defendant/Respondent, her agents, servants, or any person acting under her instructions, from carrying out any further construction works on Land Reference Number 12715/5398 that deviate from the approved development plans for a single maisonette.3.Pending the hearing and determination of this suit, a mandatory order be issued compelling the 3rd Defendant/Respondent to conduct a fresh joint inspection of the Suit Property involving the County Physical Planner, representatives of the Plaintiffs/Applicants, and an independent planning expert appointed by this Honourable Court.4.A declaration that the inspection conducted by the 3rd Defendant/Respondent on 21st July 2025 was procedurally unfair, violated Article 47 of the Constitution of Kenya, 2010, and Section 4 of the Fair Administrative Action Act, 2016, and cannot be relied upon.5.A declaration that any modification to the approved development plan beyond a single maisonette requires a fresh Change of Use application and consent from the affected residents under the Physical and Land Use Planning Act, 2019.6.An order directing the preservation of the status quo on the Suit Property pending the full hearing and determination of this application and the suit.7.The costs of this application be provided for. 2.The application is supported by the annexed Affidavit of Raphael Kimolo grounds that the Defendants/Respondents have breached Article 47 of the Constitution and the Fair Administrative Action Act, 2016, by excluding the Plaintiffs/Applicants from the inspection process on 21st July 2025. The 3rd Defendant/Respondent has breached its statutory duty under the Physical and Land Use Planning Act, 2019, to ensure public participation in development control. There is a credible apprehension of irreparable harm if the works are completed before verification of compliance with approved plans. There exists a procedural irregularity in the approval process, including the citation of an incorrect parcel number in the initial approval documents. The 2nd Defendant/Respondent has failed to enforce its own Enforcement Notice advisory conditions requiring resident consent for modifications. The actions of the Defendants/Respondents pose an imminent threat to the environment and land use planning integrity in the estate. The balance of convenience tilts in favour of granting the orders sought to preserve the subject matter of the suit. It is in the interest of justice and the overriding objective that these orders be granted. 3.This court has considered the application and the submissions therein. The principles of granting temporary injunctions are well settled and are set out in the judicial decision of Giella vs Cassman Brown (1973) EA 358. This position has been reiterated in numerous decisions from Kenyan courts and more particularly in the case of Nguruman Limited vs Jan Bonde Nielsen & 2 others CA No.77 of 2012 (2014) eKLR where the Court of Appeal held that;“in an interlocutory injunction application the Applicant has to satisfy the triple requirements to a, establishes his case only at a prima facie level, b, demonstrates irreparable injury if a temporary injunction is not granted and c, ally any doubts as to b, by showing that the balance of convenience is in his favour.These are the three pillars on which rest the foundation of any order of injunction interlocutory or permanent. It is established that all the above three conditions and states are to be applied as separate distinct and logical hurdles which the applicant is expected to surmount sequentially”. 4.Consequently, the Plaintiffs ought to, first, establish a prima facie case. In Mrao Ltd vs First American Bank of Kenya Ltd (2003) EKLR the Court of Appeal gave a determination on a prima facie case. The court stated that;“... in civil cases, it is a case in which, on the material presented to the court a tribunal properly directing itself will conclude that there exists a legal right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.” 5.Secondly, the Plaintiff has to demonstrate that irreparable injury will be occasioned to them if an order of temporary injunction is not granted. The judicial decision of Pius Kipchirchir Kogo vs Frank Kimeli Tenai (2018) eKLR provides an explanation for what is meant by irreparable injury and it states;“Irreparable injury means that the injury must be one that cannot be adequately compensated for in damages and that the existence of a prima facie case is not itself sufficient. The Applicant should further show that irreparable injury will occur to him if the injunction is not granted and there is no other remedy open to him by which he will protect himself from the consequences of the apprehended injury." 6.The Applicant states that the Defendants/Respondents have breached Article 47 of the Constitution and the Fair Administrative Action Act, 2016, by excluding the Plaintiffs/Applicants from the inspection process on 21st July 2025. The 3rd Defendant/Respondent has breached its statutory duty under the Physical and Land Use Planning Act, 2019, to ensure public participation in development control. There is a credible apprehension of irreparable harm if the works are completed before verification of compliance with approved plans. There exists a procedural irregularity in the approval process, including the citation of an incorrect parcel number in the initial approval documents. 7.Thirdly, the Plaintiff has to demonstrate that the balance of convenience tilts in their favour. In the case of Pius Kipchirchir Kogo vs Frank Kimeli Tenai (2018) EKLR which defined the concept of balance of convenience as:“The meaning of balance of convenience will favour of the Plaintiff' is that if an injunction is not granted and the Suit is ultimately decided in favour of the Plaintiffs, the inconvenience caused to the Plaintiff would be greater than that which would be caused to the Defendants if an injunction is granted but the suit is ultimately dismissed. Although it is called balance of convenience it is really the balance of inconvenience and it is for the Plaintiffs to show that the inconvenience caused to them will be greater than that which may be caused to the Defendants. Inconvenience be equal, it is the Plaintiff who will suffer." 8.In other words, the Plaintiff has to show that the comparative mischief from the inconvenience which is likely to arise from withholding the injunction will be greater than that which is likely to arise from granting”. 9.The decision of Amir Suleiman vs Amboseli Resort Limited (2004) eKLR where the learned judge offered further elaboration on what is meant by “balance of convenience” and stated;“The court in responding to prayers for interlocutory injunctive reliefs should always opt for the lower rather than the higher risk of injustice.” 10.The 1st Respondent states that she received all the required development plans from the relevant authorities before she commenced her construction. That the house has since been completed and she annexed photos of the same. 11.The Applicants also sought a mandatory order be issued compelling the 3rd Defendant/Respondent to conduct a fresh joint inspection of the Suit Property. involving the County Physical Planner, representatives of the Plaintiffs/Applicants, and an independent planning expert appointed by this Honourable Court. A declaration that the inspection conducted by the 3rd Defendant/Respondent on 21st July 2025 was procedurally unfair, violated Article 47 of the Constitution of Kenya, 2010, and Section 4 of the Fair Administrative Action Act, 2016, and cannot be relied upon and a declaration that any modification to the approved development plan beyond a single maisonette requires a fresh Change of Use application and consent from the affected residents under the Physical and Land Use Planning Act, 2019. 12.When it comes to mandatory injunctions, courts have been hesitant to grant the same particularly at the interlocutory stage, save in clear-cut cases. Such was the reasoning taken by the court in Lucy Wangui Gachara vs Minudi Okemba Lore (2015) eKLR when it rendered itself thus;“…the court will not grant a mandatory injunction if the damage feared by the plaintiff is trivial, or where the detriment that the mandatory injunction would inflict is disproportionate to the benefit it would confer. We would also add that, save in the clearest of cases, the right of the parties to a fair and proper hearing of their dispute, entailing calling and cross-examination of witnesses must not be sacrificed or substituted by a summary hearing." 13.Persuasive judicial pronouncements by Indian courts have also affirmed that great circumspection is called for before awarding a mandatory injunction at interlocutory stage. In Bharat Petroleum Corp Ltd V. Haro Chand Sachdeva, AIR 2003, Gupta, J. of the Delhi High Court observed as follows:“While Courts power to grant temporary mandatory injunction on interlocutory application cannot be disputed, but such temporary mandatory injunctions have to be issued only in rare cases where there are compelling circumstances and where the injury complained of is immediate and pressing and is likely to cause extreme hardship. If a mandatory injunction has to be granted at all on interlocutory application, it is granted only to restore status quo and not to establish a new state of things.” 14.I find that it would be premature for me to grant final orders at this interim stage in favour of the Applicants 15.Bearing this in mind, I am convinced that there is a risk in granting orders of temporary injunction than granting them, as I wait to hear the suit on its merits. This is especially so because I have not had opportunity to interrogate all the documents that might be relevant in providing a history and/or chronology of events leading to the current situation on the ground. I have also not had the opportunity to interrogate the annexures therein. 16.In Robert Mugo wa Karanja vs Ecobank (Kenya) Limited & Another (2019) eKLR where the court in deciding on an injunction application stated;“circumstances for consideration before granting a temporary injunction under order 40 rule 1 of the Civil Procedure Rules requires a proof that any property in dispute in a suit is in a danger of being wasted, damaged or alienated by any party of the suit or wrongfully sold in execution of a decree or that the Defendant threatens or intends to remove or dispose the property; the court is in such situation enjoined to a grant a temporary injunction to restrain such acts...” 17.In view of the foregoing, I find that the application is not merited and is dismissed. Parties are advised to comply with order 11 and set down the matter for hearing. Costs to be in the cause.It is so ordered. DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 7th DAY OF JULY 2026.N.A. MATHEKAJUDGE