https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3350

Muchiri v Ndoria & 3 others (Environment and Land Case E443 of 2025) [2026] KEELC 3350 (KLR) (22 May 2026) (Ruling) Neutral citation: [2026] KEELC 3350 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Case E443 of 2025 TW Murigi, J May 22, 2026 Between Anthony Muchiri Plaintiff and Catherine Ndoria 1st Defendant Catherine Murithi 2nd Defendant Naftali Mwaniki 3rd Defendant and Buruburu Residents' Welfare Association Interested Party Ruling 1.By a Notice of Motion dated 21st August 2025, brought under Orders 40 Rule 1, 42 Rule 6, and 51 Rule 1, Sections 1A, 1B, 3A, and 63 of the Civil Procedure Act, and Articles 22, 23, 27, 39, 40, 43, 39, 40, 43, 47, 48, and 159 of the Constitution, the Plaintiff/Applicant seeks the following orders:a.Spent.b.That pending the hearing and determination of this suit, a temporary injunction be issued restraining the Respondents, whether by themselves, their agents, servants, employees or representatives from denying the Applicant and the tenants access to the Property sitting between Sagam Court and Rev. Symekha Court within Bururburu Phase 5 estate using the Sagam Court Gate or in any other way interfering with the Applicant's access to the Property using Sagam Court gate,c.That pending the hearing and determination of this suit, a temporary injunction be issued compelling the Respondents, their agents, servants, employees and/or representatives to remove the padlock, the welded chains and any form of restriction placed on the Apostolic-Sagam Court Gate in Sagam Court within Buruburu Phase 5 estate to enable unhindered access by the Applicant and his tenants to the Property located in Sagam Court, within Buruburu Phase 5 estate Nairobi.d.That the orders of this Honourable Court be enforced and supervised by the OCPD and the OCS Buruburu Police Division and Station, respectively, at the Respondents' Cost.e.That the Defendants individually, jointly and severally be condemned to pay damages to the Applicant.f.That the Sagam Court residents, committee, and the Interested Party be ordered to refrain from further litigating and/or posting the issues raised herein by the Applicant on the mainstream media, print media, social media or any other avenue whatsoever.g.That the costs and interest of this suit be granted to the Applicant. 2.The application is based on the grounds appearing on its face together with the supporting affidavit of Anthony Muchiri, sworn on even date. The Applicant’s Case 3.The Applicant averred that he is the occupant of house number 165 on parcel number Nairobi Block 79/165, situated between Sagam Court and Rev. Symekha Court within Buruburu Phase 5 Estate. He further averred that he had enjoyed peaceful, uninterrupted occupation and access to the property until recently, when access was denied to him and his tenants, thereby impeding their freedom of movement. 4.He asserted that a gate erected along the perimeter wall separated the property's frontage between Rev. Symekha Court and Sagam Court. He stated that residents of Sagam Court had gradually installed more permanently locked gates, thereby restricting access to the Sagam side of the property. 5.He argued that the Defendants lacked the legal authority to enforce such deprivation and had denied him access to the only remaining entry point at Sagam Gate. He stated that he had made numerous attempts to engage Sagam Court officials and residents without success. He maintained that whenever he tried to restore access, residents resorted to intimidation, broadcasting false and misleading clips on television and social media. 6.He averred that he had sought the intervention of the Buruburu Residents Welfare Association, the County Government of Nairobi, the National Police Service and the area Chief in vain. He maintained that despite the Buruburu Residents Welfare Association issuing written directions to the Respondents to grant access, the Respondents remained adamant and uncooperative. 7.The Applicant contends that unless the Respondents are compelled to grant unconditional access, he would lose tenants from his rental units due to the inconvenience, making it difficult to attract potential tenants. He also stated that his tenants would be at risk in emergencies because of the lack of road access for emergency vehicles. 8.He argued that the Respondents would not suffer any prejudice if the orders sought are granted. The Respondents’Case 9.The Respondents filed a replying affidavit of the 1st Defendant dated 24th September 2025 in opposition to the application. The deponent averred that she is a resident of Buruburu Phase 5, Sagam Court, and the secretary to the Sagam Court Residents Committee, which includes members occupying house numbers 87 to 139. 10.She averred that Buruburu Residents Welfare Association had transitioned to Buruburu Umbrella Residents Association (BURA), and that it had active by-laws governing all members, including the Plaintiff, which were in force. She further averred that Buruburu Phase 5 was designed strictly in accordance with the Kenya Building Society design map and description, ensuring that each house has only one entrance and access point. 11.She argued that the Plaintiff is not a member of Sagam Court but belonged to Rev. Symekha Road, comprising house number 165 to 188. She stated that gates at Rev. Symekha Close, Rev. Symekha Road and Sagam Court were erected in 1996 through the coordination of respective committee members and the financial contributions of residents. 12.She argued that, although the relevant by-laws prohibit building beyond the first floor, the Plaintiff unlawfully constructed flats extending to the third floor without the necessary approvals, thereby infringing on the privacy and rights of other residents. 13.She contended that the National Construction Authority had issued suspension orders against the Plaintiff's development due to non-compliance, which the Plaintiff failed to address and was consequently charged in Court. 14.She asserted that the Plaintiff operated an Airbnb service within the unlawfully constructed flats, thereby increasing security risks for the residents and their children. 15.She stated that on 5th May 2025, the Respondents and Sagam Court members held a meeting with the Nairobi City County Urban Development and Planning Office, during which the County directed that each house was entitled to one entrance and that the access point leading from house number 165 into Sagam Court be permanently blocked. 16.She contended that the Applicant and his tenants had unrestricted access to the property through their designated entrance at Rev. Symekha Road, and that there was therefore no urgent need to prevent irreparable damage. She argued that the application was essentially for a mandatory injunction and that, if granted, it would constitute a major part of the relief sought in the plaint. 17.She maintained that the Applicant has not met the necessary threshold for the grant of the orders sought, and urged the Court to dismiss the application with costs. The Response 18.In a further affidavit dated 31st October 2025, the Applicant argued that the purported change of name from Buruburu Residents Welfare Association to BURA was unlawful and illegal under Section 20 of the Societies Act, due to the absence of a written application to the Registrar of Societies, the Registrar's consent, minutes, and resolutions supporting the amendment, and proof of registration of the change. He contended that the by-laws annexed by the 1st Defendant were not binding on him, noting that they were unsigned, had not been filed with the Registrar of Societies, and did not appear in an official search at the Registrar's offices. 19.He argued that although it was not disputed that Buruburu Phase 5 was designed in 1982 in accordance with the Kenya Building Society map, the map had since been overtaken by events and was no longer used as a guide for developments. He maintained that numerous extensions had been constructed across Phase 5, with Sagam Court alone having approximately 31 extensions, including five that had risen to three storeys, all constructed prior to his own extension. 20.He argued that clause 1.3 of the map does not specify that each house must have a single access and entry point. He claimed that several houses within Sagam Court have extensions with separate access points. He stated that his property is situated between Sagam Court and Rev. Symekha Court, and that a gate called the "Apostolic-Sagam Gate," which was built by Sagam Court, divides the perimeter wall and frontage of the property between the two courts. He also argued that an extension built within the property in 2023 has its access point inside Sagam Court. 21.He averred that houses numbered 144, 145, 146 and 164 within Sagam Court had their main house access in one court while their extension access was in a separate court, whose tenants were allowed unrestricted access through the Sagam Court gate. He argued that the Respondents' refusal to grant his tenants comparable access was discriminatory. 22.He stated that after the gates were erected at Rev. Symekha Road, Rev. Symekha Court, and Sagam Court, he continued to access the Sagam Court side of the property through access point 2 until that point was closed by the Respondents. He averred that access point 3 at the Sagam Court gate was subsequently denied to him from October 2023, leaving him without access to the extension. 23.He maintained that he had consistently paid Sagam Court security fees from March to September 2023. However, on 31st October 2023, the Treasurer of the newly appointed Sagam Court committee declined his payment and subsequently refunded the funds to him. 24.In response to the allegations concerning his extension, he maintained that many neighbouring houses had extensions rising higher than their main houses and had all been granted access at the Sagam Court gate. He explained that the NCA's suspension of works order had culminated in judicial proceedings, which were resolved in his favour after he complied with the NCA's requirements. He asserted that his development had enhanced security in the area through the installation of solar street lighting, security lights and CCTV cameras, and that neighbouring residents had sought CCTV footage from him for their own security investigations. 25.He denied operating an Airbnb business, arguing that when he became aware that a tenant was conducting such operations, he issued a notice to vacate, and the tenant subsequently moved out. He further contended that having an Airbnb would not justify the Respondents' denial of access to him and his tenants, while others faced no such restrictions. 26.Regarding the minutes of the meeting with Nairobi City County representatives, he stated that the minutes were prepared by the 1st Defendant in her capacity as Sagam Court committee secretary, without any authority, and that the minutes were inaccurate and biased. 27.Regarding the issue of access, he reiterated that he and his tenants had been denied access to the extension and its frontage, and that the only remaining route to the extension was through a narrow gate within the main house. He contended that compelling tenants and their visitors to pass through the main house infringed on the privacy of both the main house occupants and the extension tenants. He further stated that it was impossible to move furniture or bulky household items through the narrow gate, with tenants being forced to carry them over the perimeter wall, which he described as inconvenient, unfair and dangerous. He argued that, in the event of an emergency, tenants would be at risk because emergency vehicles would struggle to access the property. 28.He contended that the Respondents' actions constituted a gross violation of his fundamental rights and that the interim orders sought are necessary to end those violations. 29.The application was canvassed by way of written submissions The Applicant’s Submissions 30.The Plaintiff filed his submissions dated 31st October 2025. 31.On behalf of the Plaintiff, Counsel submitted that the residents' welfare in Phase 5 and Sagam Court was governed by Buruburu Residents Welfare Association (BRWA). Counsel further submitted that the purported transition to Buruburu Umbrella Residents Association (BURA) was unlawful and illegal within the meaning of Section 20 of the Societies Act. It was submitted that the Respondents did not produce a written application to the Registrar of Societies for the change of name, the Registrar's consent authorizing the amendment, the minutes and resolutions underpinning the change, or evidence of registration of the amendments. Counsel relied on the decision in Ngei II Estate Residents' Association v Nairobi City County & 5 others [2022] KEELC 3205 (KLR) to argue that an unregistered or non-existent association lacked the requisite locus standi to institute or maintain proceedings. Counsel further submitted that the by-laws produced by the Respondents were not binding on the Plaintiff given that they belonged to an unlawful entity, were unsigned, had not been FILED with the Registrar of Societies, and did not appear in an official search at the Registrar's offices. 32.Counsel relied on Article 27 of the Constitution of Kenya, 2010, to submit that the denial of access was discriminatory. 33.Counsel also relied on Section 4(3) of the Fair Administrative Actions Act, 2015, to argue that the Respondents had failed to give the Plaintiff notice of their intention to deny him access, thereby violating his right to fair administrative action. It was submitted that several houses within Sagam Court, namely 144, 145, 146, and 164, have their main house access in Rev. Symekha Court, while their extensions are accessed through Sagam Court, where tenants are granted unrestricted access through the Sagam Court gate. Counsel contended that denying the Plaintiff similar access, while other residents in comparable circumstances are not similarly restricted, constitutes an act of discrimination. 34.Counsel further submitted that clause 1.3 of the Kenya Building Society Map and Description does not specify that each house should only have one access and entry point, and that the County Government of Nairobi and BRWA were aware of the various extensions within Phase 5. Counsel also relied on clause 20 of the Nairobi County Physical and Land Use Planning (Building) Regulations, Legal Notice 239 of 2021, which requires every domestic building, or part thereof forming a separate tenancy, to have independent access to a street. 35.Counsel submitted that the Respondents have not demonstrated any lawful basis to continue denying the Plaintiff access. To support this argument, reliance was placed on Kinyanjui & 13 others v Richu & 4 others [2024] KEELC 4359 (KLR), where the Court, citing George Munge v Sanjeev Pancho Sharma & 3 Others [2012] eKLR, cautioned that the mandate of residential associations should not infringe upon private property rights or the public’s right to access or use public roads, and emphasized that voluntary associations cannot enforce local rules in an arbitrary, capricious, oppressive or unreasonable manner. 36.Counsel argued that the Respondents relied heavily on the by-laws of a non-existent entity and failed to establish any lawful justification for the closure. Counsel further submitted that the extension had been approved by the County Government of Nairobi and the National Construction Authority, and therefore, the Respondents cannot lawfully restrict the Plaintiff's access. 37.On the issue of costs, Counsel relied on Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others [2014] eKLR to argue that costs follow the event. Counsel urged the court to order the Respondents to pay the costs of the suit. 38.Counsel submitted that the Plaintiff had met the threshold for granting an injunction as outlined in Giella v Cassman Brown and Company Limited [1973] EA 358. In conclusion, Counsel urged the Court to allow the application as prayed. The Defendants Submissions 39.The Defendants filed their submissions dated 25th November 2025. 40.On behalf of the Respondents, Counsel submitted that the prayers sought in the application were strikingly similar to the final reliefs sought in the plaint. 41.Counsel further submitted that, although the Applicant confirmed in paragraph 16 of his further affidavit that he and his tenants had access through the designated entry points, this was inconsistent with his claim that he had been denied access to his property. It was also submitted that the Applicant acknowledged that Buruburu Phase 5 was designed in accordance with the Kenya Building Society design map and description, and clause 1.3 limits each house to a single entry point. 42.Counsel submitted on the applicable legal principles outlined in Giella v Cassman Brown & Co Ltd [1973] EA 358, as applied in Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR, where the Court held that the three limbs of the test should be applied as separate, distinct, and sequential hurdles. 43.Counsel relied on Mrao Ltd v First American Bank of Kenya & 2 Others [2003] KLR 125 to argue that a prima facie case is a genuine and arguable case, which, based on the material presented and a tribunal properly directing itself, would conclude that a right had apparently been infringed, thereby calling for an explanation or rebuttal. 44.Counsel further relied on the article by Steven Mason and McCarthy Tetraut on interlocutory injunctions, as quoted in Nairobi Kiru Line Services Ltd v County Government of Nyeri & 2 Others [2016] eKLR, to submit that when an injunction is likely to resolve the dispute between the parties, the Court may set a higher standard for the Plaintiff. Counsel submitted that the application is frivolous, vexatious and an abuse of the Court process, since the Plaintiff had confirmed that he had access to his property. It was further submitted that the sole motive of the Plaintiff could only be to harass the Respondents and cause them unnecessary anxiety, trouble and expense. 45.Counsel submitted that irreparable injury, as defined in Pius Kipchirchir Kogo v Frank Kimeli Tenai [2018] eKLR, is an injury that cannot be adequately compensated in damages. Counsel argued that the Applicant was required to demonstrate that no other remedy was available to protect him from the consequences of the alleged injury. Counsel also relied on Paul Gitonga Wanjau v Gathuthi Tea Factory Company Ltd & 2 Others [2016] eKLR to submit that irreparable harm is harm that cannot be quantified in monetary terms or cured. Counsel contended that, since the Plaintiff confirmed he has access to his property through the designated entry points, there would be no irreparable damage if the orders sought were not granted. 46.Counsel relied on the definition of the balance of convenience as outlined in Pius Kipchirchir Kogo v Frank Kimeli Tenai [2018] eKLR, which requires the Plaintiff to demonstrate that the inconvenience of denying the injunction would be greater than the inconvenience of granting it. Further reliance was placed on Nguruman Ltd v Jan Bonde Nielsen [2014] eKLR. 47.Counsel was submitted that the balance of convenience favoured the Respondents, as the Plaintiff had full access to his property through the designated entry points. 48.Regarding the mandatory injunction sought, Counsel relied on Locabail International Finance Ltd v Agroexport and Others (1986) 1 ALLER 901, where the Court of Appeal held that a mandatory injunction cannot be granted on an interlocutory application unless there are special circumstances, and only in clear cases where the matter ought to be decided at once, where the injunction was directed at a simple and summary act easily remedied, or where the defendant had attempted to steal a march on the Plaintiff. 49.Counsel submitted that the Plaintiff had not demonstrated any special circumstances warranting the grant of a mandatory injunction. Counsel further contended that granting the interim reliefs would render the issues in the substantive suit nugatory and overtaken by events without hearing the parties and considering their evidence. 50.In conclusion, Counsel urged the Court to dismiss the application with costs. Analysis and Determination 51.Having considered the application, the respective affidavits and the rival submissions, the only issue for determination is whether the Applicant is entitled to the orders sought. 52.The Applicant seeks a mandatory injunction, requiring the Defendants to perform positive acts of granting the Plaintiff and his tenants access through the Sagam gates and removing the padlock and chains on that gate. The Court is called upon to determine whether the Plaintiff has met the threshold for the grant of a mandatory injunction. The principles governing the grant of a mandatory injunction are well established. 53.In Locabail International Finance Ltd –v- Agro – Export & Another (1986) I ALLER 901, the Court held 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 than required for a prohibitory injunction.” 54.In Nation Media Group & 2 others vs John Harun Mwau (2014) KECA 308 (KLR), the Court of Appeal held that:“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.” 55.The principles governing the grant of a mandatory injunction must be read together with the principles set out in Giella v Cassman Brown & Co Limited [1973] EA 358. Accordingly, an applicant seeking a mandatory injunction must not only establish a prima facie case with a probability of success, irreparable harm that cannot be adequately compensated by an award of damages, and the balance of convenience but must further demonstrate the existence of special circumstances and a clear case justifying the grant of the drastic remedy sought. 56.The first issue for determination is whether the Applicant has established a prima facie case with a probability of success. In Mrao Ltd vs_First American Bank of Kenya Ltd & 2 Others [2003] eKLR, the Court of Appeal defined a prima facie case 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.” 57.The Applicant asserts that his property is situated between Sagam Court and Rev. Symekha Court, and that an extension built in 2023 has its access point within Sagam Court. He further asserts that houses numbered 144, 145, 146, and 164 within Sagam Court, which possess comparable configurations, are granted unrestricted access through the Sagam Court gate, and that the denial of similar access to him amounts to discrimination within the meaning of Article 27 of the Constitution. 58.Additionally, the Applicant contends that clause 20 of the Nairobi County Physical and Land Use Planning (Building) Regulations, Legal Notice 239 of 2021, states that every domestic building or separate tenancy must have independent access to a street, and that the by-laws relied upon by the Defendants are not binding on him, as they are not validly registered. 59.The Respondents argued that the Kenya Building Society design map limits each house to a single access point, and that the County Government of Nairobi, during a meeting held on 5th May 2025, directed that access from house number 165 into Sagam Court be permanently blocked. They further contend that the Plaintiff retains full access to his property through his designated entry point at Rev. Symekha Road. 60.The Plaintiff faces access restrictions to his extension and the associated inconveniences. Conversely, the Defendants have a County Government directive supporting the closure of the access point, legitimate concerns about the security of the gated community, and the interests of a broader group of residents who contributed to the erection of the gates. 61.At this interlocutory stage, the Court is not required to make final findings on contested issues that are reserved for trial. 62.In Edwin Kamau Muniu Vs Barclays Bank of Kenya Ltd 2006), the Court held that;“In an interlocutory application to determine the very issues which will be canvassed at the trial with finality, all the court is entitled at this stage is whether the applicant is entitled to an injunction sought on the usual criteria.” 63.The issue of whether the Plaintiff has an enforceable right of access through the Sagam Court gate, considering the configuration of his property, the treatment of comparably situated houses, the applicable regulations and the status of the Defendants' by-laws, is a genuine and arguable issue that warrants determination at trial. The argument regarding discriminatory treatment based on differential access to houses 144, 145, 146, and 164 is valid. 64.The grant of a mandatory injunction would compel the Defendants to undo physical structures and reopen access, fundamentally altering the status quo pending trial. The orders sought are identical in substance to the final reliefs in the plaint. Granting them would effectively dispose of the suit without a full hearing on the merits, which this court is not at liberty to do. Based on the evidence on record, I find that the Plaintiff has neither established a prima facie case nor demonstrated any special circumstances within the meaning of the Locabail case that would warrant the grant of mandatory relief at this stage. 65.The conditions outlined in Giella Vs Cassman Brown Case (Supra) are to be considered sequentially. In so finding, I am persuaded by the holding in the case of Nguruman Limited Vs Jan Bonde Nielsen & 2 Others [2014] eKLR where the Court of Appeal stated as follows:“…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 stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially… if the applicant establishes a prima facie case that alone is not sufficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the respondent will suffer, in the event the injunction is not granted will be irreparable. In other words, if damages recoverable in law are an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration”. 66.Having found that the Applicant has not established a prima facie case with a probability of success, it will be immaterial to delve into the other limbs that are to be considered for a grant of a temporary injunction. 67.In Commercial Finance Co. Ltd vs Afraha Education Society & Others C A Civil Appeal No. 142 of 1999, the court held that:“……the judge should address himself sequentially on the conditions for granting an injunction instead of proceeding straight away to address himself on the third condition because where the Applicant has no registered interest in the land comprised in the title dispute and thereof has not demonstrated that it has a prima facie case with a probability of success, no interlocutory injunction would be available.” 68.The Plaintiff seeks damages against the Defendants individually, jointly and severally. The issue of damages can only be determined upon the full hearing of the suit. At this interlocutory stage, the court is not required to make definitive findings on damages. 69.The Plaintiff seeks an order to prevent Sagam Court residents, the committee, and the Interested Party from further litigating and from posting issues raised in this suit on mainstream media, print media, social media, or any other platform. 70.It is trite that freedom of expression is a fundamental right guaranteed under Article 33 of the Constitution of Kenya, 2010, and that freedom of the media is separately and expressly protected under Article 34. These rights include the freedom to seek, receive and impart information and ideas. They can only be restricted in accordance with Article 24, which requires that any limitation be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, and that the limitation is proportionate to the purpose it seeks to achieve. 71.The prayer as framed is directed not only at the named Defendants but also at the residents of Sagam Court, many of whom are not parties to this suit. It is well established that a court order only binds those who are parties to the proceedings or who are brought within its terms by proper process. An order purporting to bind an unascertained class of persons who have not been heard cannot be legally issued. 72.The general complaint that residents have aired false and misleading clips on television channels discloses, at most, a potential cause of action in defamation, for which separate and more specific remedies exist. 73.In light of the foregoing, I find that the application dated 21st August 2025 is without merit and is hereby dismissed with costs. RULING SIGNED, DATED, AND DELIVERED VIA MICROSOFT TEAMS THIS 22ND DAY OF MAY, 2026.……………………………………HON. T. MURIGIJUDGEIn the presence of:-Kagongo for the RespondentAhmed – Court assistant