https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4662

# REPUBLIC OF KENYA ## IN THE ENVIRONMENT AND LAND COURT AT KISUMU ### **ELCLC E008 OF 2026** **PETER ONYANGO OWALA………………….1ST PLAINTIFF/APPLICANT** **GRACE ADHIAMBO AKELLO A.K.A GRACE ADHIAMBO ONYANGO……2ND PLAINTIFF/APPLICANT** EMILY ONYANGO...........................................3RD PLAINTIFF/APPLICANT **VERSUS** **SHAJANAND HOLDINGS LIMITED.............DEFENDANT/RESPONDENT** ## RULING ## Introduction [1] Before this Court is a Notice of Motion dated 13th February 2026, brought under a Certificate of Urgency of the same date. The application is grounded in Articles 40, 42, 69, and 70 of the Constitution of Kenya, Sections 1A, 1B, and 3A of the Civil Procedure Act, Order 40 Rules 1, 2, and 4 of the Civil Procedure Rules, Section 3 of the Environment and Land Court Act, and the Environmental Management and Co-ordination Act (EMCA), CAP 387.By this application, the Applicants seek several interlocutory reliefs pending the hearing and determination of the main suit: 1. A temporary injunction restraining the Respondent, whether by its agents, employees, and/or contractors, from excavating or digging out hard rocks through blasting within a radius of thirty (30) meters from the land parcel known as Kisumu/Kadongo/1283 and its vicinity. 2. A temporary injunction restraining the Respondent from its continued operation until it carries out a proper Environmental Impact Assessment (EIA), implements proper environmental mitigation measures, and pays for the structural damages caused to the Applicants’ property. 3. An order directing that the injunctions, if issued, be served upon the National Environment Management Authority (NEMA), the Ministry of Mining, and the Kenya Railways Corporation for implementation. 4. An order directing NEMA and/or such other competent regulatory agency to conduct an independent environmental and blasting impact assessment on land parcels Kisumu/Kadongo/4367 and Kisumu/Kadongo/1290 and the neighbouring residential property Kisumu/Kadongo/1283. 5. An order directing the appointment of an independent Structural Engineer to assess and ascertain the structural integrity and extent of post-blasting damage to the Applicants’ residential structures and make recommendations on appropriate remedial and repair measures. 6. An order that the costs of this application be provided for. ## The Application [2] The application is supported by the grounds stated in the Notice of Motion and the Supporting Affidavit of Peter Onyango Owala, the first applicant, sworn on 13th February 2026, along with several annexed exhibits. The Applicants complain that the Respondent is conducting blasting, quarrying, excavation, and stone extraction using explosives on land adjacent to their residential homestead on parcel Kisumu/Kadongo/1283. They argue that these blasting activities cause intense ground vibrations, flying rock debris, and shock waves, which have led to serious structural cracks and damage to their houses, damaged and punctured roofing sheets, and put them at immediate risk of physical injury. [3] The Applicants claim that their homestead is their permanent residence and primary investment. They argue that ongoing quarrying has rendered it structurally unsafe and uninhabitable. They accuse the Respondent of failing to implement safety measures, vibration monitoring, protective barriers, or mitigation measures. Despite previous complaints to the local administration, the Ministry of Mining, and NEMA, no action has been taken. As a result, they are compelled to seek urgent court intervention. The Applicants annexed several documents to the Supporting Affidavit to support their claims: photographs marked as Annexures P.O.O 1, 2, 3, and 4, depicting ongoing excavation and quarrying on Land Reference Nos. Kisumu/Kadongo/4367 and Kisumu/Kadongo/1290; photographs marked as Annexures P.O.O 5 and 6, showing visible cracks in structural walls and holes in roofing sheets; a complaint letter dated 21st November 2024, sent by the Applicants to the Regional Manager, Kisumu Mining Office (Annexure P.O.O 7(a)); an Inspection Report from the County Mining Office, Kisumu, signed by Nancy Abwao, Senior Inspector of Explosives, dated 20th January 2026 (Annexure P.O.O 7(b)); a Police Abstract from Obambo Police Post, dated 13th November 2024, recording reported damage to a television and structural cracks (Annexure P.O.O 8); a letter from the Chief of West Kisumu Location, Mary Andhoga, dated 10th December 2025, confirming the Applicants' residency and historical complaints regarding quarry-related damages (Annexure P.O.O 9); and a demand letter dated 6th February 2026, addressed to NEMA, requesting an urgent environmental and structural assessment (Annexure P.O.O 10). [3] The 1st Applicant submitted a Supplementary Affidavit, sworn on March 9, 2026, adding new details to support his case. He stated that the suit property forms part of land registered in the name of his late father, Joseph Owala Onyango. He attached a Certificate of Confirmation of Grant from Kisumu High Court, Succession Cause No. 502 of 2004, which names him and Caren Jagongo Onyango as co-administrators of the estate (Annexure P.O.O 1). He also provided a land search certificate dated March 9, 2026, confirming that the land remains registered in his father’s name (Annexure P.O.O 2). The 1st Applicant further stated that after the suit was filed, further blasting caused additional damage, which he reported to the police, as shown by a police abstract dated March 4, 2026 (Annexure P.O.O 3). ## Summary of the Reply [4] The Respondent challenged the application with Grounds of Opposition dated 13th March 2026 and a Replying Affidavit sworn on 19th May 2026 by Chandrakant Devji Chhabhadia, the Respondent’s Managing Director. They argued that the application is incompetent, frivolous, vexatious, and an abuse of court process. The Respondent also contended that the Applicants lack standing or a direct proprietary interest in Kisumu/Kadongo/1283, as no title certificate was attached to the initial pleadings. Furthermore, the Respondent’s stone blasting and quarrying activities are fully lawful, registered, and approved by all relevant statutory and environmental authorities. If structural damage exists, it can be measured and compensated through damages, rendering an interlocutory injunction inappropriate. Stopping the Respondent's operations would result in significant financial losses, disrupt business, and deprive many workers of their jobs and livelihoods. [4] In the Replying Affidavit, the Respondent’s Managing Director stated that the Respondent operates a lawful stone quarry and blasting site on parcel Kisumu/Kadongo/6472, formed by combining plots 4592, 4367, 1290, and 4623. He attached a copy of the Certificate of Title, showing that the Respondent has been the registered absolute owner of the land since 27th August 2024 (Annexure CDC-2). He averred that stone blasting activities began in 2004 and are located about 451 metres from nearby residences, at a depth of 120 feet below ground level. The Respondent affirms that its operations have peacefully coexisted with local residents for over twenty years and notes that the Applicants previously sold part of the land on which the quarry is located to the Respondent, thereby signifying their acceptance of this coexistence. [5] To demonstrate compliance with all legal obligations, the Respondent presents several licenses and approvals: Annual Licenses to Manufacture Explosives issued under the Explosives Act (Cap 115) by the Directorate of Mines (Ministry of Petroleum and Mining), including License No. 01 of 2026 valid until 31 December 2026, License No. 05 of 2025, and previous licenses for 2023, 2021, and 2020 (see Annexure CDC-3a). It also includes Excessive Vibration Permits from NEMA Kisumu Office (Annexure CDC-3b), NEMA acknowledgement letters, and annual Self-Environmental Audit Reports for 2019, 2020, 2021, 2023, and 2024, prepared by Mitchel Odidi, an accredited EIA Lead Expert (Reg No. 7963), all confirming the Respondent’s compliance (Annexure CDC-4). Additionally, a Google Maps printout shows the blasting site is roughly 800 meters from the residential area and operates at a depth of 120 feet (Annexure CDC-3c). [6] The Respondent’s Managing Director deposed that when the 1st Applicant previously raised complaints, inspectors from the Mines and Geological Department examined the site and established that the cracks on the walls were due to poor construction work, soil factors, and poor workmanship rather than quarry blasting. He maintained that the Applicants have failed to establish a prima facie case with a probability of success, and that the balance of convenience tilts heavily in favour of maintaining the status quo to protect the livelihoods of the workers employed at the quarry. ## Parties’ Submissions [7] The Applicants filed written submissions in which they argued that they have satisfied the tripartite requirements for the grant of a temporary injunction as set out in the case of ***Giella v Cassman Brown & Co. Ltd [1973] EA 358.*** Relying on ***Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KLR 125,*** they contend that they have established a prima facie case with a probability of success. They argue that their actual occupation of the suit land is confirmed by the local Chief’s letter, NEMA’s site visits, and the Respondent’s own acknowledgement of their status as neighbours. [8] The Applicants submitted that the absence of a formal title document in the initial pleadings does not defeat their standing, as they seek to protect their lives and property from destructive blasting. They argue that their constitutional right to a clean and healthy environment under Articles 42, 69, and 70 of the Constitution is not contingent on producing land titles, citing the Supreme Court decision in ***Mitu-Bell Welfare Society v Kenya Airports Authority & 2 Others [2021] KESC 34 (KLR),*** which cautioned against placing undue reliance on technicalities in enforcing fundamental human rights. [9] Regarding irreparable harm, the Applicants submit that the use of explosives near residential dwellings poses an immediate, non-monetary threat to human life and safety that cannot be adequately compensated by damages. They rely on ***Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR*** to assert that the progressive structural degradation of their homes and the risk of physical injury constitute irreparable harm. They argue that the balance of convenience strongly favours preserving human lives over the Respondent’s commercial profits, and that regulatory licences do not confer on the Respondent the right to create a nuisance or destroy neighbouring properties. [10] The Respondent contended that the Applicants failed to satisfy any of the thresholds for injunctive relief. The Respondent argued that the Applicants failed to establish a prima facie case because they did not annex any ownership documents in respect of Kisumu/Kadongo/1283 and offered no technical or scientific evidence linking the stone blasting to the alleged cracks. Relying on ***Mrao Limited v First American Bank,*** the Respondent submits that a prima facie case is more than a mere arguable case and must show a clear infringement of a right. [11] Addressing the second limb of ***Giella v Cassman Brown (supra),*** the Respondent submits that the Applicants have failed to demonstrate that they will suffer irreparable harm. Citing ***Nguruman Limited v Jan Bonde Nielsen & 2 Others KECA 606 (KLR),*** the Respondent submits that injury must be actual, substantial, and demonstrable, not speculative. The Respondent contends that the alleged cracks may result from poor construction, soil erosion, or natural wear and tear. [12] The Respondent further submitted that the balance of convenience strongly favours maintaining the status quo. It argued that it is a lawfully licensed entity operating since 2004, and that a sudden halt to its operations would cause severe financial distress and result in job losses for its employees. The Respondent also urged the Court to reject the prayers for NEMA and structural engineering assessments, contending that these requests are premature, as they form the substratum of the main suit and should be resolved at trial. ## Analysis and Determination [13] This Court has carefully considered the application, the grounds of opposition, the supporting and supplementary affidavits, the replying affidavit, and the written submissions, together with the judicial authorities cited by both counsel. The key issues that arise for determination are: 1. Whether the Applicants have met the threshold for granting a temporary injunction. 2. Whether the court should grant the ancillary orders directing independent environmental and structural assessments at this interlocutory stage. ### **Threshold for Interlocutory Injunctions** [14] The principles guiding the grant of a temporary injunction are well-settled in this jurisdiction. As established in the landmark case of ***Giella v Cassman Brown & Co. Ltd*,** the tripartite test requires that: “First, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.” These three conditions are distinct hurdles that an applicant must overcome in sequence. If an applicant fails to establish a prima facie case, the court need not consider the remaining two hurdles. ### **Establishment of a Prima Facie Case** [15] To determine if the Applicants have established a prima facie case, this Court must look to the definition provided by the Court of Appeal in the ***Mrao Ltd Case:*** ***“So what is a prima facie case? I would say that in a 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 right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.”*** The Applicants base their application on the assertion that the Respondent is conducting rock-blasting operations in dangerous proximity to their home at Kisumu/Kadongo/1283. They contend that this close-range blasting is the direct cause of structural cracks in their walls and holes in their roofs. [16] However, the Applicants themselves annexed and relied heavily on the County Mining Office Inspection Report dated 20th January 2026. Following a physical inspection of the site and the homestead, the Senior Inspector found that the houses were approximately 300 metres from the blasting site. Visible cracks were observed on the houses, and holes were visible on the roofs. The blaster’s daily records were reviewed; the last blasting activity occurred in September 2024. This reveals a discrepancy in the Applicants’ pleadings. The Applicants seek an injunction to restrain blasting within a 30-metre radius, yet their own evidence shows the houses are approximately 300 metres from the blasting site. This distance is ten times the distance alleged in the application. Additionally, the report does not conclude that the observed cracks and roof holes resulted from the Respondent’s blasting activities. It recommended that a government structural engineer assess the cause of the cracks in the houses. [17] This recommendation indicates that, on the face of it, the regulatory authority could not establish a causal link between the quarrying activities and the structural cracks. Without an assessment report from a qualified structural engineer, the Applicants’ claim that the blasting caused the cracks remains a mere speculative assertion and should be heard on the merits before any action is taken. The Respondent’s assertion that the cracks could be the result of poor construction, soil shifts, poor workmanship, or natural weathering cannot be ruled out at this stage of the proceedings. [18] Conversely, the Respondent has demonstrated that it holds valid statutory licences and approvals for its quarrying activities on Kisumu/Kadongo/6472. These include an active Explosives Manufacturing Licence (No. 01 of 2026), valid until 31st December 2026; Excessive Vibration Permits from NEMA; and accepted Annual Environmental Audit Reports spanning several years. A statutory licence or regulatory permit carries a presumption of legality and regularity (see ***Kibos Distillers Limited & 4 others v Benson Ambuti Adega & 3 others [2020] eKRL).*** This Court cannot ignore or suspend the operations of a business acting under such regulatory approvals unless those licences are directly challenged, proven invalid, or set aside in a substantive hearing. To halt the Respondent’s operations on the basis of untested affidavit evidence would violate the presumption of regularity of administrative actions. Consequently, this Court finds that the Applicants have failed to establish a prima facie case with a probability of success. ### **Irreparable Injury and the Causation of Damage** [19] The second condition of the ***Giella v Cassman Brown*** test requires the Applicants to show that they will suffer irreparable injury that cannot be adequately compensated by an award of damages. I adopt the definition of irreparable injury in ***Pius Kipchirchir Kogo v Frank Kimeli Tenai [2018] eKLR,*** that: ***“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.”*** [20] The Applicants claim an imminent danger to their lives and safety due to ongoing blasting. However, the Inspection Report shows that the last blasting occurred in September 2024, nearly seventeen months before they filed this application. This indicates that the cracks and structural problems have existed alongside the quarry for a long time and did not suddenly become severe enough to justify urgent pre-trial restrictions on the Respondent’s licensed activities. [21] The apprehension of immediate physical danger is speculative, as no active blasting was occurring during the regulatory inspections and the houses are 300 metres from the site. In the absence of a technical report from a structural engineer confirming an immediate, active threat of collapse directly linked to the Respondent’s current activities, the Applicants have failed to satisfy the threshold for demonstrating actual, substantial, and demonstrable injury. Any structural damage that may ultimately be proven at trial is capable of scientific quantification and can be adequately compensated by an award of damages, which the Respondent, as a going concern, should be able to pay. ### **The Balance of Convenience** [22] If the Court is uncertain, the decision should be guided by the balance of convenience, which involves comparing the hardships each party would face if the injunction is granted or denied. The Respondent stated that it has operated its stone quarry and carried out blasting activities since 2004. It owns the land and holds full licences from NEMA and the Ministry of Mining. The Respondent also claimed to be a well-capitalised business that employs many workers. [23] If this Court were to grant the temporary injunction halting the Respondent’s operations, the Respondent and its employees would suffer immediate and severe financial losses, business disruption, and job losses. By contrast, the Applicants have co-existed with the quarry since 2004, and the quarry is situated 300 metres from their home. Therefore, the balance of convenience strongly favours maintaining the status quo, which is to allow the Respondent’s licensed operations to continue pending a hearing on the merits, on condition that they do not operate within 30 metres of the Applicants’ homestead, a concession the Respondent had made pending the hearing of the application, in any event. ### **Prayers for Assessments** [24] The Applicants have also sought interlocutory orders directing NEMA to conduct environmental and blasting impact assessments and to appoint an independent Structural Engineer to assess structural integrity and damage. This Court is of the view that these requests relate to the ultimate reliefs sought in the main suit and are better addressed at the case-conferencing stage. **Final Orders** [25] In the final analysis, this Court orders the following pending the hearing and determination of the suit: 1. A temporary injunction restraining the Respondent, whether by its agents, employees, and/or contractors, from excavating or digging out hard rocks through blasting within a radius of thirty (30) meters from the Applicants’ homestead on land parcel known as Kisumu/Kadongo/1283 pending the hearing and determination of the suit. 2. The costs of the application shall abide the outcome of the suit. **Delivered virtually, signed and dated this 23rd day of July 2026.** **C. C. Oluoch** **Judge** In the presence of: Ms Achieng for the Plaintiffs/Applicants Faith Court Assistant In the absence of the Respondent