https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4383

Asin (Representing Residents of Pinebrook Premier Villas – Kajiado) v Cherd Africa Ltd & another (Environment and Planning Civil Case E001 of 2026) [2026] KEELC 4383 (KLR) (9 July 2026) (Ruling) Neutral citation: [2026] KEELC 4383 (KLR) Republic of Kenya In the Environment and Land Court at Kajiado Environment and Planning Civil Case E001 of 2026 J Omange, J July 9, 2026 Between Leonard Rarieya Asin (Representing Residents of Pinebrook Premier Villas – Kajiado) Plaintiff and Cherd Africa Ltd 1st Defendant Kajiado County Government 2nd Defendant Ruling 1.Vide an application dated 28th January 2026 the Plaintiff , representing Residents of Pine Brook Premier Villas seeks various orders including; an order that Chard Africa the 1st Defendant be compelled by way of an injunction to keep providing exhauster services for each housing unit at Pinebrook Premier Villas Kajiado on LR Kajiado/ Kaputei North/117517 pending the determination of the suit; that a mandatory injunction be issued to compel Chard Africa Ltd ( hereinafter referred to as the 1st Defendant to install dedicated septic tanks for each housing unit; that an injunction be issued to restrain Kajiado County Government (hereinafter referred to as the 2nd Defendant) from evicting or interfering with the Plaintiffs occupation of their homes in the said estate. 2.The application is premised on the grounds that the 1st Defendant has failed to provide individual septic tanks for housing units within the Pinebrook Premier Villas contrary to express terms in the sale agreement it had with the home owners. That as a result thereof the 2nd Defendant, the County has issued the residents with enforcement notices and have threatened to evict the residents. 3.The application is supported by the affidavit of Leonard Asin who deposes that he has brought the application on his own behalf and on behalf of 21 residents of the said estate. He avers that in contravention of express terms of the sale agreements the 1st Defendant has failed to provide waste disposal mechanisms and this has resulted in issuance of various enforcement notices by the County. 4.The application is opposed by the 1st Defendant who raises various issues in response the first being that the court has no jurisdiction to determine the matter as the sale agreements had a mediation/ arbitration clause which oust the jurisdiction of the court. That the Plaintiff is an imposter as his claim is not backed by all the residents of the estate and that of the 21 who gave authority to sue, 3 are not home owners. He further explains the challenges that the 1st Defendant has faced in constructing septic tanks for each unit as earlier envisaged. Regarding the enforcement notices by the 2nd Defendant he outlines the various measures the 1st Defendant has put in place to address areas of concern. 5.Both parties filed submissions in support of the rival positions which the court has duly considered. 6.The court distills the following issues for determination; Whether this court has jurisdiction to hear the matter Whether the Plaintiff has locus standi Whether the application for an injunction and mandatory injunction against the 1st Defendant is merited Whether the application for injunction against the 2nd Defendant is merited 7.The court will address the issue of jurisdiction first. 8.The centrality of jurisdiction was underscored in the famous case of Owners of Motor Vessel “Lilian S” – Versus - Caltex Oil (Kenya) Limited (1989) IKLR. Section 6 of the Arbitration Act requires the Court, where an application is made by a party, to stay the proceedings and refer the matter for Arbitration. In the case of Speaker of the National Assembly -vs- Njenga Karume [1992] eKLR, the court held that where there is a clear procedure for redress of any particular grievance, prescribed under the Constitution or Statute, that procedure must be strictly followed. 9.The Court of Appeal in the case of Geoffrey Muthinja & another v Samuel Muguna Henry & 1756 others [2015] eKLR, in emphasizing the doctrine of exhaustion held as follows; “We see this as the crux of the matter in this and similar cases. It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the courts is invoked. Courts ought to be the fora of last resort and not the first port of call the moment a storm brews within churches, as is bound to happen. The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside of courts. This accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution. “We find and hold that the exhaustion doctrine applies even where, as was argued by the appellants herein, what is sought to be challenged is the very authority of the organs before whom the dispute was to be placed. We think there were sufficient safeguards in place for a valid determination of the various plaintiff’ sdisputes had they led them within the church set up. And there was always the right, acknowledged by the learned Judge, of approaching the courts after exhaustion of the church mechanisms. By failing to do so, quite apart from the force of their apprehensions, the appellants effectively failed to exhaust their remedies and essentially short-circuited the process by filing suits prematurely.” 10.In the instant case, it is common ground that there was a mediation/ arbitration clause in the agreement between the Plaintiffs and the 1st Defendant. The 2nd Defendant was not a party to the agreements between the two parties. It is the action of the 2nd Defendant of issuing enforcement notices that has spurred the filing of this suit. The court retains jurisdiction over the exercise of public power hence is properly seized of the matter. 11.On the question of locus standi, the Plaintiff has exhibited a letter of authority signed by 21 residents. Even if the 1st Defendant disputes 3 of the residents this does not negate the authority of the remaining 18 whose ownership status is not in contention. 12.On the orders sought against the 1st Defendant, the Plaintiff seeks that the court order the 1st Defendant to continue providing exhauster services. Given the admission by the Plaintiff that the 1st Defendant is already providing the services and there being no evidence of any imminent cessation of this service, the court finds that this prayer is not merited. The crux of the dispute appears to be the individual septic tanks which the residents expected. The Plaintiff seeks a mandatory injunction in respect thereof. 13.A mandatory injunction at an interlocutory stage is granted only in exceptional circumstances. The applicant must establish the clearest of cases or that there are special circumstances warranting grant of immediate relief. 14.In the present case, there are substantial disputes regarding the terms of the agreement; whether individual septic tanks are technically feasible; whether compliance would breach planning or environmental requirements; and whether the 1st Defendant has already remedied the County's concerns. 15.These are issues which can only be determined after hearing the parties substantively hence a mandatory injunction cannot be issued at this interlocutory stage. 16.Regarding enforcement by the 2nd Defendant, the court finds that while the matter is in court, it is essential that no action is taken that would result in displacement of the residents as the issue of compliance is considered. 17.In the end the court issues the following orders;a.An injunction is hereby issued restraining the 2nd Defendant from issuing any enforcement notices and or evicting the Plaintiffs pending the hearing and determination of the suit.b.Costs shall abide the outcome of the suit. DATED, SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 9TH DAY OF JULY 2026.JUDY OMANGEJUDGE.IN The Presence Of:M/S Risa for Plaintiff.Mr Sichangi for Musue for 1st Defendant.Peter – Court Assistant.